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Sweden: Consumer Ombudsman Sues E-cigarette Vendor over Illegally Advertising Online

(Feb. 27, 2020) On February 24, 2020, the Swedish Consumer Ombudsman (Konsumentombudsmannen (KO)) sued an online e-cigarette vendor for illegally advertising e-cigarettes in violation of the Act on Tobacco and Similar Products. (Lag (2008:2088) om tobak och liknande produkter.)  The KO monitors compliance with marketing rules and may sue companies on behalf of Swedish consumers for marketing violations. This is the first time the KO has brought a claim against an e-cigarette vendor. The KO is asking the Patent and Market Court to declare that the advertisements are illegal and to issue a conditional fine (injunction) against further advertisements. (KO, Stämningsansökan, Patent- och Markandsdomstolen, (Feb. 24, 2020) Dnr. 2019/333.)

The charge includes accusations of illegal advertisements on the company’s Facebook account (since 2016) and its website (since 2019), targeted emails to potential customers (2019), and an advertisement that misleads by referring to one of its products as “ecojuice.”

Under Swedish law, as specified in chapter 4, section 4 of the Act on Tobacco and Similar Products (implementing the EU Tobacco Products Directive), e-cigarettes cannot be advertised in any form other than as straightforward e-cigarettes. Because such non-straightforward advertisements are prohibited, they also constitute a violation of sections 5, 23, and 26 of the Swedish Marketing Act. (Marknadsföringslagen (2008:486)(MFL).) Moreover, products may not be described as more environmentally friendly or as a healthier alternative to similar products. Thus, with regard to e-cigarettes, Swedish law prohibits commercial advertisements, sale-promoting measures, and irrelevant product information.

According to the KO, the e-cigarette product referred to as “Ecojuice” violates chapter 3, section 4 of the Act on Tobacco and Similar Products, which prohibits insinuating that one product is less harmful or more environmentally friendly than another, similar product. Noting that “eco” is commonly perceived to mean “ecological,” the KO maintains that by using “eco” and “juice” together, the online vendor is insinuating that the product has a health and/or environmental advantage to other, similar products.

The KO received the information on the Ecojuice product from the Public Health Agency of Sweden.

The e-cigarette advertising case comes shortly after the KO Guidelines on e-cigarette advertising (KOVFS 2019:2), adopted in 2019, entered into force on January 1, 2020. In these Guidelines, the KO clarified that the information which may be used in selling e-cigarettes is limited to price, producers, and other similar information of a “technical character,” such as the size of the container, type of battery, number of inhalations, or taste of the nicotine liquids.