Bonn, 20 November 2014. The 3rd Senate of the Federal Administrative Court ruled on the issue of electric (electronic) cigarettes in three appeal procedures on Thursday, 20 November 2014. At the heart of the administrative procedure in each appeal was the question whether e‐cigarettes are allowed to be freely sold or whether they constitute pharmaceutical or medical products, which would mean that trading them without pharmaceutical/medical‐law approvals would be prohibited and subject to criminal penalty. Precisely this was asserted to be the case by the North Rhine‐Westphalian Minister of Health, Barbara Steffens, in a press release in 2011 as well as in a ministerial decree that was also sent to the Chamber of Pharmacists in North Rhine‐Westphalia. The press release received plenty of attention from print media and led to a collapse in the sale of e‐cigarettes.
A German manufacturer of e‐cigarettes took action against the press release in an administrative court complaint filed by Prof Dr Alexander Schink and Dr Michael Winkelmüller, from the law firm Redeker Sellner Dahs. The action was successful before Münster Superior Administrative Court. The Superior Administrative Court held the opinion that e‐cigarettes do not constitute a pharmaceutical or medical product, but are rather a lifestyle product intended to replace cigarettes. The Court ruled that e‐cigarettes cannot be a pharmaceutical product because e‐cigarettes with nicotine cartridges cannot have, nor are they intended to have, any healing effect. Just like with normal cigarettes, the reason for using them relates solely to smoking. Nor was the Ministry of Health entitled, according to the High Court, to issue a press release warning against the sale of e‐cigarettes and claiming that this was a criminal offence.
The Land of North Rhine‐Westphalia filed an appeal against the decision with the Federal Administrative Court, which was ruled on today.
The Federal Administrative Court upheld the ruling in favour of the plaintiff: e‐cigarettes are not a pharmaceutical product and can be freely traded. The Ministry of Health, according to the Federal Administrative Court, was not entitled to issue a warning against the sale of e‐cigarettes in the form of a press release stating that this was a criminal offence.
“The decision of the Federal Administrative Court has established that e‐cigarettes can be sold and traded just like any other smoking goods. This is not only of considerable economic importance to business enterprises, but also to consumers of smoking products as well,” was how attorneys Prof Dr Alexander Schink and Dr Michael Winkelmüller commented on the ruling. “The Federal Administrative Court has established that the definition of pharmaceutical products is not suited to preclude dangers in connection with new types of smoking products.”
Prof Dr Alexander Schink, attorney at law and counsel at Redeker Sellner Dahs law firm, conducted the action on behalf of the manufacturer of e‐cigarettes. The retired State Secretary has been active for years now as a university lecturer as well as an attorney who is a recognised expert in consumer protection and environmental and planning law issues.
Dr Michael Winkelmüller, partner at Redeker Sellner Dahs law firm, has conducted numerous procedures over the past few years involving product safety, health and consumer protection law for business enterprises, associations and government institutions.