How to get the aroma of tobacco

Selling aromatic tobacco is prohibited

The sale of flavored tobacco, i.e. tobacco with characteristic flavors (such as menthol or vanilla) that mask the taste and smell of tobacco, is prohibited within the European Union (EU). However, there is a transition period for sellers of cigarettes and tobacco, whose Union-wide sales volumes amount to 3 percent or more of a certain product category, such as menthol. In this case, the ban will only apply from May 20th, 2020.

Doubts about the legality of the ban

A German tobacco company was of the opinion that the national legislation banning aroma tobacco and notes on aromas, which implemented the Union-wide ban, was unlawful. It wanted a piece of the remaining market share and brought an action. The administrative court in Berlin referred the questions to the Court of Justice of the European Union (ECJ).

Protection of health is a priority

The ECJ confirmed - not surprisingly - the sales ban (judgment of January 30, 2019, file number C-220/17) as well as the ban on affixing aroma labels. As a justification, the court cited the special protection of public health. Tobacco consumption should be prevented from the start. This also justifies an encroachment on the fundamental freedoms of tobacco manufacturers and brand owners.

Smokeless tobacco products also regulated

The decision of the ECJ now means the final end of flavored tobacco in Germany. However, tobacco law is likely to keep the courts busy.

So we reported that the EU is the Tobacco in the form of oral delivery banned with the Tobacco Directive 2014/40 / EU. However, the so-called chewing tobacco is excluded from this. The distinction between inadmissible tobacco for oral use, which is also called "sucking tobacco", and chewing tobacco is difficult and should continue to occupy the ECJ and the national courts - as most recently on October 17, 2018. Ultimately, the delimitation is decisive for whether a product can be sold or not.

No tobacco tax on e-cigarettes yet

A tobacco tax or a similar tax on e-cigarettes does not yet exist in Germany and should cause a lot of controversy. The Federal Ministry of Finance is already dealing with such a levy. The basis for the amount should be the nicotine content in the so-called liquids.

Countries such as Italy or Finland have already introduced an e-cigarette tax, but have had bad experiences with it, as customers then mostly purchased their goods abroad. In Germany, however, the experts still disagree as to whether the e-cigarette is harmful to health and thus justifies a tax. Due to the falling tobacco tax revenues, we believe that such a levy will certainly come to plug the hole in the financial coffers. Should there be a tax on e-cigarettes, a uniform and clear EU regulation would be desirable in order to avoid a European “patchwork quilt”.

Continue reading:
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Bartosz Dzionsko

Bartosz Dzionsko is a lawyer at WINHELLER's Frankfurt office. His focus lies in the areas of non-profit law, criminal tax law, corporate tax criminal law and customs law.

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