Medical Law

Use of e-cigarettes not considered ‘smoking’

The Administrative Court in Cologne, Germany, found in favour of a restaurant owner who was not prepared to prohibit the smoking of e-cigarettes in his restaurant. The court ruled that using e-cigarettes is not ‘smoking’ in the traditional sense.

Use of e-cigarettes not considered ‘smoking’ ©-ferkelraggae-Fotolia-Fotolia_31081868_XS

Use of e-cigarettes not considered ‘smoking’ ©-ferkelraggae-Fotolia-Fotolia_31081868_XS

German law on e-cigarettes

According to the Administrative Court, Cologne, the use of electronic cigarettes should not be considered ‘smoking’ in the traditional sense (case ref. 7 K 4612/13).

The judges came to the conclusion that North Rhine-Westphalia’s controversial Protection of Non-smoker’s Act (NiSchG NRW) is not clear enough.

What is an electronic cigarette?

An electronic cigarette (e-cigarette) looks similar to a normal tobacco cigarette. It consists of a battery, a vaporiser and a mouthpiece.

To start an e-cigarette, the user presses a button. A coil in the vaporiser is heated and a small amount of liquid containing nicotine is then inhaled.

No difference

Germany’s Federal Health Ministry makes clear on its website that the Federal Protection of Non-Smokers Act (NiSchG), which lays down a general smoking ban, does not differentiate between tobacco products such as cigarettes, cigars or even e-cigarettes.

Application in North Rhine-Westphalia

The aim of the NiSchG is to protect third parties from the dangers to health caused by smoking cigarettes and other comparable products. This is why, in those areas where the smoking ban in North Rhine-Westphalia applies, it is also valid for e-cigarettes.

The regional government of North Rhine-Westphalia relies on the following three arguments in support of this view:

1. Protection of health

On 24 February 2012, the Federal Institute for Risk Assessment published an evaluation supporting the position that e-cigarettes should come under the smoking ban legislation. The institute concluded:

“Based on the current level of knowledge, [the] dangers of smoking on others’ health cannot be ruled out. In view of the large spectrum of liquids available and the almost unlimited possibilities for experimenting with ingredients and concentrations, it must be asked in each case what the smoker in question inhales and breathes out and which harmful substances are released into the surrounding air. The [Institute] therefore recommends that [for the purposes of the smoking ban] e-cigarettes are treated like normal cigarettes and that their use be prohibited in non-smoking areas.”

2. Uniformity with federal laws

On 23 December 2011, the federal government clarified that: “…[it is] of the opinion that the NiSchG applies to electronic cigarettes, as the Act implements a general smoking ban which does not differentiate between the ‘smoking’ of certain product groups such as cigarettes, cigars, herbal cigarettes or electronic cigarettes.”

3. Clarity for enforcement

If they were required to differentiate between normal cigarettes and various new manifestations, such as e-cigarettes, regional supervisory authorities would have difficulties enforcing the smoking ban. The same goes for hotel, restaurant and pub owners.

Difference between cigarettes and e-cigarettes

The Cologne-based judges, however, argue that there are differences between normal cigarettes and e-cigarettes. One the one hand, smoke from normal cigarettes is inhaled as a result of burning tobacco, whereas in the case of e-cigarettes, a liquid containing nicotine is inhaled.

The judges noted that this difference is not reflected in the legislation. As a result, the court determined that e-cigarettes are not “smoked” within the meaning of the law.

The court even went further, deciding that the NiSchG NRW was passed in order to protect non-smokers from the dangers of specifically inhaling tobacco smoke. While the dangers of passive smoking are well known, whether inhaling smoke from e-cigarettes is equally dangerous is still disputed.

Based on these differences, the court declared that the NiSchG NRW should be amended to include a sufficiently certain and clear rule concerning e-cigarettes.

Position on e-cigarettes

However, the fact that the NRW legislation does not consider e-cigarettes is not quite true.

In the preamble to the legislation it states that the blanket ban on smoking should also apply to e-cigarettes. However, this statement is obviously not clear enough for the cologne-based judges.

This failure to consider the legislature’s intention is questionable.

Next steps

An appeal to the Higher Administrative Court (Münster) was granted due to the need for fundamental clarification of the legal position.

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Christian Solmecke is a partner at the law firm WILDE BEUGER SOLMECKE. He is the author of numerous legal publications in the area of internet and IT law. He is also an associate lecturer for social media law at the Cologne University of Applied Sciences.

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