Inclusion of nicotine-free e-cigarettes and refillable containers in the scope of application of the German tobacco products act from January 1, 2021

On 28 October 2020, the 2nd amending act tobacco products act (2. ÄndG TabakerzG) was published in the Bundesgesetzblatt (Federal Law Gazette) dated 23 October 2020, which in addition to further bans on tobacco advertising extends the scope of the German tobacco products act (TabakerzG) to include nicotine-free e-cigarettes and refillable containers.

According to this amending act the scope of application of the German tobacco products act (TabakerzG) is extended with regard to the definitions of ‘electronic cigarette’ and ‘refillable container’ pursuant to Art. 2 No. 16 and 17 Tobacco Products Directive 2014/40/EU (TPD), respectively, to the effect that these definitions also include products that do not contain nicotine. This leads legally to a fundamental equality of nicotine-free products with those containing nicotine placed on the German market.

Exceptions are provided for with regard to the permissible maximum filling volumes and the use of health warnings. Therefore, the maximum volumes according to § 14 (1) No. 1 and 2 of the tobacco products act explicitly apply only to nicotine-containing refill containers and cartridges (10 ml or 2 ml, respectively). Similarly, the application of the health warning pursuant to § 15 (1) No. 2 (a) of the tobacco products act expressly applies only to nicotine-containing e-cigarettes and refillable containers.

All other regulations for nicotine-containing e-cigarettes and e-liquids, e.g. notification obligations and prohibited substances according to Anlage 2 of the tobacco product regulation (TabakerzV), shall also apply to nicotine-free products from 1 January 2021, although the following transitional periods shall apply:

For products that were manufactured before January 1, 2021 or that were or will be placed on the market in accordance with the regulations in force until December 31, 2020 a sales period until March 31, 2021.
The notification in the EU-CEG, for nicotine-free products already marketed on 1 January 2021, the notification in the EU-CEG must be made within 6 months from 1 January 2021. For notifications, the product category "others" must be selected for nicotine-free liquids.

Registration for cross-border distance sales of retailers selling nicotine-free e-cigarettes and liquids only, is limited to retailers located in Germany which need to register at their local authority.
Regarding nicotine-free products there are still different obligations within the EU member states. Operators therefore need to check the legal obligations in the member state they are planning to place products on the market.
Selling nicotine-containing and nicotine-free disposable e-cigarettes and nicotine-free e-liquids to minors is still prohibited under the German youth protection act.

Further changes

The 2nd amending act on tobacco products act also includes further amendments to the tobacco products act (prohibition of outdoor advertising, free distribution and playout), the youth protection act and the tobacco tax act. For further information, please refer to the text of the law or the information on the website of the Federal Ministry of Food and Agriculture or the English version of the notification of the draft law to the European Commission.

• Publication of the 2nd Amending Act Tobacco Products Act in the Bundesgesetzblatt
• Information of the Federal Ministry of Food and Agriculture (BMEL) on the 2nd Amending Act Tobacco Products Act
• Notification of the draft law to the European Commission, available in English and other EU official languages

Year of issue 2020
Date 16.11.2020