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Germany: Parliament Debates E-Cigarettes Prohibition for Minors

(Dec. 9, 2015) On December 4, 2015, the German Bundestag (parliament) debated a draft act that would prohibit the sale to and consumption of electronic cigarettes and electronic shishas by children and adolescents under 18 years of age.  (Entwurf eines Gesetzes zum Schutz von Kindern und Jugendlichen vor den Gefahren des Konsums von elektronischen Zigaretten und elektronischen Shishas [Draft Act to Protect Children and Adolescents from the Dangers Resulting from the Consumption of Electronic Cigarettes and Electronic Shishas], DEUTSCHER BUNDESTAG: DRUCKSACHEN UND PROTOKOLLE [BT-Drs.] 18/6858 (Nov. 30, 2015).)

The draft act would amend section 10 of the Youth Protection Act to include e-cigarettes and e-shishas, as well as their containers and cartridges, in the category of tobacco and tobacco-related products that cannot be sold to or consumed by children and adolescents.  Mail order sales are also included in the prohibition.  (Draft Act, art. 1; Jugendschutzgesetz [Youth Protection Act] (July 23, 2002), BUNDESGESETZBLATT [BGBl.] I at 2730, as amended, GERMAN LAWS ONLINE.)

The draft act was supported by all parliamentary groups in the Parliament’s first reading. MP Norbert Müller of the Left Party pointed out the health risks of e-cigarettes and e-shishas and their gateway effect leading to the use of conventional cigarettes.  (Alexander Weinlein, Schluss mit dem E-Dampf [Stop the E-Smoke], DAS PARLAMENT [THE PARLIAMENT], No. 50-51 (Dec. 7, 2015.)  The Bundesrat, the constitutional body through which the German states participate in the legislative process, has already signaled its support for the act.  (BUNDESRAT: DRUCKSACHEN [BR-Drs.] 536/1/15 (Dec. 3, 2015), at 3.)

Background

Electronic cigarettes are defined by the German Federal Institute for Risk Assessment as battery-operated products that typically resemble conventional cigarettes.  Instead of tobacco, they contain cartridges filled with liquids that are generally composed of nicotine, flavor and other chemicals.  During consumption, the liquids are heated and thereby vaporize.  (Bundesinstitut für Risikobewertung [Bfr] [German Federal Institute for Risk Assessment], Frequently Asked Questions About E-Cigarettes (Mar. 1, 2012).)

According to the German Federal Institute for Risk Assessment, electronic shishas are not electronically operated water pipes as the name would suggest, but a variation of e-cigarettes.  Some of the available e-shishas contain water pipe smoke flavors or mouth pieces that resemble water pipes.  Like e-cigarettes, liquids are heated during consumption and the aerosol is inhaled.  (Bundesinstitut für Risikobewertung [Bfr] [German Federal Institute for Risk Assessment], Nikotinfreie E-Shishas bergen gesundheitliche Risiken [Nicotine Free E-Shishas Pose Health Risks] (Apr. 23, 2015) at 1.)

Under current law, no age-related restrictions apply to the use and sale of e-cigarettes and e-shishas in Germany; section 10 of the Youth Protection Act only prohibits the sale and consumption of “tobacco products” to children and adolescents.  Because e-cigarettes and e-shishas do not qualify as “tobacco products” as defined in section 3 of the Provisional Tobacco Act, they are not covered by that prohibition.  (Vorläufiges Tabakgesetz [Provisional Tobacco Act], Sept. 9, 1997, BGBl. I at 2296, as amended, § 3, ¶ 1 GERMAN LAWS ONLINE.)

The German Federal Administrative Court (Bundesverwaltungsgericht) has thus far only ruled that e-cigarettes cannot be classified as medicinal products and therefore can be sold without approval in accordance with the Medicinal Products Act.  The Court has not decided on the applicability of tobacco and antismoking laws to e-cigarettes and similar products.  (Bundesverwaltungsgericht [BVerwG] [Federal Administrative Court], Nov. 20, 2014, Docket No. 3 C 25.13; Jenny Gesley, Germany: Electronic Cigarettes, LAW LIBRARY CONGRESSIONAL REPORTS (July 2015).)