9. Juli 2018

Federal Administrative Court Lifts Ban on Nicotine-Containing E-Cigarettes

As part of the comprehensive revision of the Swiss Foodstuffs Act (FSA) and its ordinances as per May 1,  2017, the tobacco sector has been separated from the foodstuff legislation. Today’s Tobacco Ordinance will be transferred into a new, independent Tobacco Products Act (TPA). The scope of the TPA will comprise tobacco products and nicotine-containing e-cigarettes. E-cigarettes without nicotine will continue to qualify as utility articles under the foodstuffs law. According to both the old and the new foodstuffs law, it is illegal to add nicotine to utility articles, thus rendering e-cigarettes with nicotine without a legal basis until the TPA is in force.

A general ruling issued by the Federal Food Safety and Veterinary Office (FSVO) in 2015 also banned the commercial import and marketing of e-cigarettes with nicotine based on the so-called “Cassis de Dijon” principle. The latter stipulates that a product, which complies with the technical regulations of the EU, a member state of the EU/EEA, and is legally placed on the market in one of these states, may be placed on the Swiss market without any further controls – even if such a product does not meet the regulatory requirements under Swiss law. Exceptions can only be made based on public interests. The FSVO had issued the ban based on health-related concerns about nicotine-containing e-cigarettes.

On April 24, 2018, the Swiss Federal Administrative Court overturned that ban (C-7634/2015). As a consequence, e-cigarettes with nicotine may be now imported and marketed in Switzerland, provided they meet the regulatory requirements of the EU or of an EU/EEA member state.

The Court lifted the general ruling based on purely formal reasons, holding that the ruling was not specific enough in its terminology, thus lacking a clear object and therefore rendering it defective. Material consideration concerning the consequence of the marketing of e-cigarettes with nicotine were not provided. In particular, the Court did not discuss potential health risks caused by them or clarify how such potential risks should be addressed by the applicable law. As a consequence, it remains uncertain how they should be qualified under the current law. Given that, they are comprised by neither the old nor new FSA and the TPA is not yet in force, it is unclear which provisions govern them in the meantime.