Electronic Cigarette Industry Trade Association
Tel : 01639 710 558
Email : email@example.com
Case Number: 4 A 775/14 (first instance: VG Cologne 7 K 4612/13
The 4th Division of the Higher Administrative Court for North Rhine-Westphalia today ruled that restaurant owners are not obliged to ban the use of electronic cigarettes on their premises under the North Rhine-Westphalian Non-Smoking Protection Act (NiSchG NRW). This confirmed the decision of the Administrative Court in Cologne.
The applicant runs a restaurant in Cologne, and allows the use of electronic cigarettes by his patrons. The city of Cologne threatened him with disciplinary measures, claiming that such use was prohibited by the NiSchG NRW. The plaintiff then sought a judicial declaration that electronic cigarette use should not be included in the NiSchG NRW. With electronic cigarettes, there is no combustion, so no smoke is produced; rather, the ingredients merely evaporate. The inclusion of the e-cigarette in the smoking ban was also unconstitutional.
The Administrative Court upheld the action. In the judgement delivered today, the Higher Administrative Court rejected the appeal of the city of Cologne. Supporting the ruling, the Chairman stated at the hearing:
The NiSchG NRW contains no express provisions on the electronic cigarette. Under § 3 para.1 sentence 1, "smoking" is prohibited in certain facilities, including in restaurants. 'Smoking' should be interpreted in the context of general and professional language use as the inhalation of smoke produced by the combustion of tobacco. When using an electronic cigarette, there would be no combustion process, but rather a process of vapourisation. In addition, it was not appropriate to describe the vapour as a tobacco product in the legal sense, because it was not intended to be smoked. The same applies to the nicotine contained in many liquids. Therefore, an application of the smoking ban as conceived in the NiSchG NRW to electronic cigarettes cannot be justified. When the NiSchG NRW was adopted in 2007, the legislature did not foresee the emergence of the electronic cigarette. With the amendment to the Act in 2012, although there was the intention to treat the e-cigarette like a conventional cigarette, the wording of the prohibition had not been changed accordingly. This would have been required to make the products addressed by the scope of the prohibition sufficiently clear. In addition, the NiSch G NRW serves solely to protect against the hazards of passive smoking. The possible risk of electronic cigarettes are thus, in any case, neither identical nor comparable. The risk of "passive vaping" from electronic cigarettes has not yet been sufficiently explored, let alone proven. The legislature should assume that health risks are simply not demonstrated. If the intention of the 2012 amendment was to include electronic cigarettes in the smoking ban for reasons of risk prevention, these differences were at least not sufficiently considered.
The Senate has not approved the revision. However, permission to appeal to the Federal Administrative Court is granted. [Our translation.]
© ECITA 2016. All rights reserved