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China: Central Government Bans Sale of E-Cigarettes to Minors

(Sept. 19, 2018) On August 31, 2018, two Chinese central government regulators, the State Administration for Market Regulation (SAMR) and the State Tobacco Monopoly Administration (STMA, also known as China Tobacco), jointly issued a circular to ban the sale of electronic cigarettes to minors. (Guojia Shichang Jiandu Guanli Zongju, Guojia Yancao Zhuanmai Ju Guanyu Jinzhi Xiang Weichengnian Chushou Dianziyan de Tonggao [Circular of the SAMR and the STMA on Prohibiting the Selling of E-Cigarettes to Minors] (Aug. 31, 2018), China Tobacco website.)

The Circular cites the World Health Organization’s Framework Convention on Tobacco Control, to which China became a party in 2006, and the Chinese Law on Protection of Minors. The Convention prohibits “the manufacture and sale of sweets, snacks, toys or any other objects in the form of tobacco products which appeal to minors.” The domestic law prohibits the sale of tobacco and alcohol to minors. (Id.)

In China, stationary stores near primary and secondary schools were reportedly selling e-cigarettes to students. There were even “student e-cigarettes” sold on online e-commerce platforms. (Id.) Noting the safety and health risks of e-cigarettes, the Circular prohibits all market entities from selling electronic cigarettes to minors, who, according to article 17 of China’s General Rules of Civil Law, are natural persons under the age of 18. (Id.; Zhonghua Renmin Gongheguo Minfa Zongze [PRC General Rules of Civil Law] (adopted by the National People’s Congress on Mar. 15, 2017, effective Oct. 1, 2017), NPC website, English translation available on the Diritto Mercato Tecnologia website.) Moreover, the Circular recommends that e-commerce platforms remove e-cigarette products labeled with the words “student” or “minor,” sanction relevant online stores, and take measures to block associated keywords. The Circular, however, does not specify any penalties that may be imposed on those violating the ban. (Id.)

Background

China has not yet passed a comprehensive tobacco control law on the national level. In 2011, the Ministry of Health (now National Health Commission) issued rules in implementing the State Council Regulations on Public Places Sanitation Administration, which contain a provision prohibiting smoking in specified indoor public spaces, such as hotels, restaurants, movie theaters, museums, hospital waiting rooms, and public transportation waiting rooms. (Ministry of Health, Implementation Rules on Regulations on Public Places Sanitation Administration (Mar. 10, 2011, effective May 1, 2011) art. 18, Tobacco Control Laws website; State Council, Regulations on Public Places Sanitation Administration (Apr. 1, 1987, effective the same day), Tobacco Control Laws website.)

The manufacture, sale, and use of e-cigarettes in China have largely been unregulated, despite the rapid growth of the country’s e-cigarette industry and the rising popularity of e-cigarettes in recent years. Before the circular was issued, relevant government agencies appeared to be reluctant to take the lead in regulating e-cigarettes. (Eric A. Feldman & Chai Yue, E-Cigarette Regulation in China: The Road Ahead (Faculty Scholarship Paper 1704) (2016), Penn Law: Legal Scholarship Repository website.)