The Law Library of Congress, Global Legal Research Center 

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Germany: Electronic 

Cigarettes

July 2015
This report is provided for reference purposes only. 

It does not constitute legal advice and does not represent the official 

opinion of the United States Government. The information provided 

reflects research undertaken as of the date of writing. 

It has not been updated.
The Law Library of Congress 1

Germany: Electronic Cigarettes 

Jenny Gesley 

Foreign Law Specialist

SUMMARY Electronic cigarettes in Germany are currently not subject to any age-related access 

restrictions. The Federal Administrative Court concluded recently that nicotine-containing 

liquids in electronic cigarettes are not medicinal products and therefore can be sold without 

approval in accordance with the Medicinal Products Act. It is still unclear whether such 

liquids are covered by tobacco regulations and antismoking laws.

I. Introduction 

Electronic cigarettes (e-cigarettes) are defined by the German Federal Institute for Risk 

Assessment as battery-operated products that typically resemble conventional cigarettes. Instead 

of tobacco, they contain cartridges filled with liquids that are generally composed of nicotine, 

flavor, and other chemicals. During consumption, the liquids are heated and thereby vaporize.1

The US Food and Drug Administration (FDA) employs a similar definition.2

Because of their relative novelty and the lack of legal provisions specifically addressing them, 

the status of e-cigarettes in Germany remains ambiguous, which in turn causes legal uncertainty 

for consumers and businesses. E-cigarettes are either not regulated at all and therefore freely 

available to everyone or are treated as medicinal or tobacco products by various German states, 

cities, and municipalities, which place restrictions on their sale and use. 

Even though the Federal Administrative Court (Bundesverwaltungsgericht) has decided that ecigarettes cannot be classified as medicinal products,3

it has so far not had to rule on the

applicability of tobacco and antismoking laws. Classifying e-cigarettes as a medicinal product 

would mean that they could not be sold without approval in accordance with the Medicinal 

Products Act (Arzneimittelgesetz).4 If e-cigarettes were treated as tobacco products or products

closely resembling tobacco products, they would be subject to antismoking laws, and their

consumption would be banned in public indoor spaces and restaurants. 

1

 BUNDESINSTITUT FÜR RISIKOBEWERTUNG [BFR] [GERMAN FEDERAL INSTITUTE FOR RISK ASSESSMENT],

FREQUENTLY ASKED QUESTIONS ABOUT E-CIGARETTES (Mar. 1, 2012), http://www.bfr.bund.de/cm/349/frequentlyasked-questions-about-e-cigarettes.pdf. 

2 Electronic Cigarettes (e-Cigarettes), U.S. FOOD AND DRUG ADMINISTRATION (FDA), http://www.fda.gov/News 

Events/PublicHealthFocus/ucm172906.htm (last updated June 4, 2015). 

3

 Bundesverwaltungsgericht [BVerwG] [Federal Administrative Court], Nov. 20, 2014, Docket No. 3 C 25.13, 

http://www.bverwg.de/201114U3C25.13.0; BVerwG, Nov. 20, 2014, Docket No. 3 C 26.13, http://www.bverwg. 

de/201114U3C26.13.0; BVerwG, Nov. 20, 2014, Docket No. 3 C 27.13, http://www.bverwg.de/201114U3C 

27.13.0. 

4 Arzneimittelgesetz [AMG] [Medicinal Products Act], Dec. 12, 2005, BUNDESGESETZBLATT [BGBL.] I at 3394, as 

amended, § 21, unofficial English translation available at http://www.gesetze-im-internet.de/englisch_amg/ 

medicinal_products_act.pdf. 
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II. Legal Age for Use of E-Cigarettes

Currently, no age-related restrictions apply to the use of e-cigarettes in Germany. Section 10 of 

the Youth Protection Act (Jugendschutzgesetz) prohibits only the sale of all tobacco products to 

children and adolescents in public places and prohibits children and adolescents from smoking.5

An adolescent is defined in section 1 of the Act as a person between the ages of fourteen and 

eighteen.6 “Tobacco products” are in turn defined in section 3 of the Provisional Tobacco Act

(Vorläufiges Tabakgesetz) as products made of or derived from raw tobacco intended for 

smoking, chewing, other oral use, or sniffing.7 The Act equates the following products with

tobacco products: raw tobacco and products closely resembling tobacco products intended for 

smoking, chewing, other oral use, or sniffing; cigarette papers, cigar binders, and other 

components that are firmly attached to the tobacco products; and other noncommercially 

available cigarette papers used for rolling cigarettes.8

In the opinion of the German Federal Ministry for Food and Agriculture and the German Federal 

Ministry for Family Affairs, Senior Citizens, Women, and Youth, e-cigarettes are outside the 

scope of section 10 of the Youth Protection Act. These Ministries issued a joint press release on

April 23, 2015, which stated their intention to introduce a bill to update section 10 of the Youth 

Protection Act in order to prohibit the sale of e-cigarettes to children and adolescents.9

According to the press release, the liquids from e-cigarettes may be detrimental to a person’s 

health—regardless of whether they contain nicotine—because of, inter alia, the additional 

ingredients of the liquids, such as carbonyl compounds (formaldehyde, acrolein, and 

acetaldehyde), which may cause cancer and affect proper lung function.

Despite reports to the contrary,10 the Tobacco Products Directive of the European Union (EU)

does not ban e-cigarettes or impose an age limit, smoke-free environments, or rules on flavors.11

5

 Jugenschutzgesetz [JuSchG] [Youth Protection Act], July 23, 2002, BGBL. I at 2730, as amended, § 10, 

http://www.gesetze-im-internet.de/bundesrecht/juschg/gesamt.pdf. 

6

Id. § 1, para. 1, no. 2. 

7

 Vorläufiges Tabakgesetz [Provisional Tobacco Act], Sept. 9, 1997, BGBL. I at 2296, as amended, § 3, para. 1, 

http://www.gesetze-im-internet.de/bundesrecht/lmg_1974/gesamt.pdf. 

8

Id. § 3, para. 2. 

9

 Pressemitteilung Nr. 113 vom 23.04.15 [Press Release No. 113 of Apr. 4, 2015], Bundesministerium für Ernährung 

und Landwirtschaft [Federal Ministry for Food and Agriculture], E-Zigaretten und E-Shishas – Novellierung des 

Jugendschutzgesetzes [E-Cigarettes and E-Shishas – Update of the Youth Protection Act], http://www.bmel.de/ 

SharedDocs/Pressemitteilungen/2015/113-SC-EZigaretten.html. 

10 EUROPEAN COMMISSION, E-CIGARETTES MYTH BUSTER (Feb. 26, 2014), http://ec.europa.eu/health/tobacco/ 

docs/tobacco_mythbuster_en.pdf. 

11 Council Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014 on the 

Approximation of the Laws, Regulations and Administrative Provisions of the Member States Concerning the 

Manufacture, Presentation and Sale of Tobacco and Related Products and Repealing Directive 2001/37/EC, 

preamble, recitals 47, 48, 2014 OFFICIAL JOURNAL OF THE EUROPEAN UNION (O.J.) (L 127) 1, http://ec.europa.eu/ 

health/tobacco/docs/dir_201440_en.pdf. 
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The Directive only aims to harmonize, inter alia, some aspects relating to the placing on the 

market and labelling of e-cigarettes. 

III. Legal Classification of E-Cigarettes

A. Medicinal Products 

The Federal Administrative Court, overturning three decisions of the Higher Administrative 

Court of North Rhine-Westphalia,12 ruled on November 20, 2014, that e-cigarettes filled with

nicotine-containing liquids do not fall under the definition of medicinal products in the 

Medicinal Products Act.13

The three court cases all dealt with store owners who had appealed administrative decisions that 

prohibited them from selling liquids containing more than ten or fifteen milligrams of nicotine. 

The cities argued that the nicotine-containing liquids should be classified as medicinal products 

and could therefore not be sold without approval in accordance with the Medicinal 

Products Act.14

The definition of medicinal products in section 2 covers both “medicinal products by 

presentation” and “medicinal products by function.” The Federal Administrative Court first 

defined “medicinal products by presentation” and subsequently concluded that the nicotinecontaining liquids in e-cigarettes are not covered by that definition. “Medicinal products by 

presentation” are substances or preparations made from substances that are intended for use on or 

in the human or animal body and are intended for curing, alleviating, or preventing human or 

animal diseases or disease symptoms.15 According to the Court, a product fulfills these

requirements if it is explicitly presented as possessing such characteristics or if the presentation 

of the product gives the average consumer, either explicitly or implicitly, the unambiguous 

impression that the product possesses these traits.16 As the nicotine-containing liquids were not

presented or advertised as substances to cure nicotine and tobacco addictions, they cannot be 

classified as medicinal products in accordance with section 2 of the Medicinal Products Act.17

The Federal Administrative Court then elaborated on the definition of “medicinal products by 

function” and determined that the nicotine-containing liquids in e-cigarettes could also not 

12 Oberverwaltungsgericht Nordrhein-Westfalen [OVG NRW] [Higher Administrative Court NRW], Sept. 17, 

2013, Docket No. 13 A 2448/12, http://www.justiz.nrw.de/nrwe/ovgs/ovg_nrw/j2013/13_A_2448_12_Urteil_ 

20130917.html; OVG NRW, Sept. 17, 2013, Docket No. 13 A 2541/12, http://www.justiz.nrw.de/nrwe/ovgs/ovg_ 

nrw/j2013/13_A_2541_12_Urteil_20130917.html; OVG NRW, Sept. 17, 2013, Docket No. 13 A 2448/12, 

http://www.justiz.nrw.de/nrwe/ovgs/ovg_nrw/j2013/13_A_2448_12_Urteil_20130917.html. 

13 BVerwG, Nov. 20, 2014, Docket Nos. 3 C 25.13, 3 C 26.13, 3 C 27.13. Docket No. 3 C 25.13, available at 

http://www.bverwg.de/201114U3C27.13.0, will be published in the official compilation of decisions of the Federal 

Administrative Court and is used as an example in this report. AMG § 2, para. 1. 

14 BVerwG, Docket No. 3 C 25.13, para. 4.

15 AMG § 2, para. 1, no. 1.

16 BVerwG, Docket No. 3 C 25.13, para. 14. 

17 Id. at para. 15. 
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qualify as medicinal products. Section 2 of the Medicinal Products Act defines “medicinal 

products by function” as 

substances or preparations made from substances which . . . can be used in or on the 

human or animal body or can be administered to a human being or an animal . . . to 

restore, correct or influence the physiological functions through a pharmacological, 

immunological or metabolic effect.18

The decision of whether a product falls under this definition must be made on a case-by-case 

basis, taking into account all the characteristics of the product, in particular its composition; its 

pharmacological properties, to the extent to which they can be established in the present state of 

scientific knowledge; the manner in which it is used; the extent of its distribution; its familiarity 

to consumers; and the risks that its use may entail.19 It is not sufficient that the product have

properties beneficial to health in general—it must objectively have the function of treating or 

preventing disease, the Court said.20

The Court applied the definition to the nicotine-containing liquids in e-cigarettes and concluded 

that even though nicotine is a substance with pharmacological effects, an overall assessment 

shows that the liquids are food products by function and not medicinal products.21 The Court

noted that nicotine-containing e-cigarettes closely resemble tobacco cigarettes in their 

appearance, presentation, and use. The variety of flavors the liquids come in are intended to 

taste good, and the flavors differentiate the liquids from approved medicinal products used as 

smoking cessation aids that contain only menthol and nicotine. In addition, the liquids do not 

contain the dosage instructions typical of medicinal products. Moreover, even if the liquids 

provide temporary relief from withdrawal symptoms, they cannot objectively be used for 

therapeutic purposes because nicotine can damage health.22

The possibility that they pose a risk to health may eventually necessitate labelling them, as 

foreseen in the EU Tobacco Products Directive,23 but this would not justify their classification as

medicinal products, according to the Court.24

As e-cigarettes do not fall under the definition of medicinal products, they can be sold without 

approval in accordance with the Medicinal Products Act, the Court concluded.

18 AMG § 2, para. 1, no. 2, letter a. 

19 BVerwG, Docket No. 3 C 25.13, para. 18 (citing settled case law of the European Court of Justice, because the 

definition of medicinal products in the German Medicinal Products Act is an implementation of the definition in EU 

Directive 2001/83/EC). 

20 Id. at 19. 

21 Id. at 21. 

22 Id. at 22. 

23 Council Directive 2014/40/EU, supra note 11. 

24 BVerwG, Docket No. 3 C 25.13, para. 23. 
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B. Tobacco Products 

The Federal Administrative Court so far has not had to rule on whether e-cigarettes should be 

regulated as tobacco products or covered under antismoking laws. Lower state courts are 

divided in their legal classification of e-cigarettes,25 which leads to legal uncertainty.

The Higher Administrative Court of North Rhine-Westphalia, the highest administrative court in 

that state, decided that smoking e-cigarettes inside a restaurant did not violate the Anti-Smoking 

Act of North Rhine Westphalia.26 This decision might influence other courts, because NorthRhine Westphalia is Germany’s most populous state. The Higher Administrative Court of NRW 

did not allow an appeal to the Federal Administrative Court. 

The Higher Administrative Court of NRW answered in the negative the essential question of 

whether the consumption of electronic cigarettes can be qualified as “smoking” and therefore 

subject to antismoking laws. According to the Court, “smoking” is generally defined as inhaling 

smoke produced by burning tobacco products (pyrolysis).27 The consumption of e-cigarettes

does not involve pyrolysis; rather the liquids are heated and thereby vaporize.28

Furthermore, the intention of the North-Rhine Westphalian Anti-Smoking Act is the protection 

of nonsmokers in public places from the dangers of secondhand tobacco smoke.29 E-cigarettes

generally do not contain tobacco. Instead, they contain propylene glycol, various flavorings or 

aromas, and usually nicotine.30

E-cigarettes without any nicotine do not qualify as tobacco products.31 In the Court’s view, even

nicotine-based liquids cannot be classified as tobacco products in a legal sense. It opined that 

such liquids do not fall under the definition of tobacco products under section 3 of the 

Provisional Tobacco Act32 or under the definition in the EU directive on which the German Act

is based because they are not “intended for smoking, chewing, other oral use, or sniffing.”

33 The

Court added that EU law differentiates between nicotine and tobacco products, even when the 

25 For a decision in favor of applying tobacco and antismoking laws to e-cigarettes, see, e.g., the suit in the 

Administrative Court of Gießen, in which the Court decided that a teacher had violated the Education Act and the 

Anti-Smoking Act of Hesse by consuming an e-cigarette on school property. Verwaltungsgericht Gießen [VG 

Gießen] [Administrative Court of Gießen], Feb. 20, 2013, Docket No. Az. 5 K 455/12.GI. For a decision rejecting 

the applicability of tobacco and antismoking laws because the liquids in e-cigarettes are not “smoked,” see, e.g.,

Verwaltungsgericht Köln [VG Köln] [Administrative Court of Cologne], Docket No. Az. 7 K 4612/13.

26 OVG NRW, Nov. 4, 2014, Docket No. Az. 4 A 775/14, http://www.justiz.nrw.de/nrwe/ovgs/ovg_nrw/j2014/4_ 

A_775_14_Urteil_20141104.html. 

27 Id. at 25. 

28 Id. at 28. 

29 Id. at 36. 

30 Id. at 40. 

31 Id. at 42. 

32 Vorläufiges Tabakgesetz, BGBL. I at 2296. 

33 OVG NRW, Docket No. Az. 4 A 775/14, paras. 44–50. 
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nicotine is derived from raw tobacco, which means that nicotine itself cannot be a tobacco 

product.34

The Court also rejected a teleological interpretation of the Anti-Smoking Act.35 The intention of

the legislature to qualify the consumption of e-cigarettes as “smoking” is not reflected in the 

wording of the Act. The legislature is obligated to define the scope of an act as clearly as 

possible, so that restrictions on the exercise of a right are foreseeable.36 According to the Court,

a clarification of the term “smoking” or an amendment to the Act was needed in order to include 

e-cigarettes.37

Furthermore, the intention of the Act to protect nonsmokers from the dangers of secondhand 

tobacco smoke does not automatically result in an inclusion of e-cigarettes.38 E-cigarettes

produce vapor and not tobacco smoke. Currently, there is not enough scientific research on the 

health risks of third parties that are exposed to vapor from e-cigarettes. An extension of the 

scope of the Anti-Smoking Act is therefore not warranted, in the view of the Court.39

The arguments of the Court in North-Rhine Westphalia could be applied to similar state 

antismoking acts and the Federal Anti-Smoking Act, and other state courts and the Federal 

Administrative Court may rule similarly. The primary objective of antismoking acts is the 

protection of nonsmokers from secondhand tobacco smoke. A necessary condition for the 

applicability of antismoking acts is the act of “smoking.” Arguably, neither of the requirements 

is fulfilled with e-cigarettes.40

IV. Future Developments

The EU Tobacco Products Directive must be implemented by the Member States by May 20, 

2016.41 It aims to harmonize rules for the placing on the market and labelling of tobacco and

related products.42 The Directive only applies to e-cigarettes with nicotine-containing liquids; ecigarettes without nicotine are not subject to the Directive. It defines e-cigarettes as products 

that can be used for consumption of nicotine-containing vapor via a mouthpiece or any 

component of these products, including a cartridge, a tank, and devices without cartridges or 

tanks.43 Among other things, Member States must ensure that nicotine-containing liquids do not

34 Id. at 51. 

35 A teleological interpretation construes an act in light of its purpose and intention. 

36 OVG NRW, Docket No. Az. 4 A 775/14, paras. 63 & 67. 

37 Id. at 69. 

38 Id. at 78. 

39 Id. at 79. 

40 Rolf-Georg Müller, Elektronische Zigaretten – Arzneimittel und Gegenstand des Nichtraucherschutzrechts? 

[Electronic Cigarettes – Medicinal Products and Subject to Antismoking Laws?], 2012 PHARMA RECHT 137, 141.

41 Council Directive 2014/40/EU, supra note 11, art. 29, para. 1.

42 Id. art. 1(f). 

43 Id. art. 2, para. 16. 
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contain nicotine in excess of 20 mg/ml and do not contain other ingredients in heated or unheated 

form that may pose a risk to human health.44

German Minister for Food and Agriculture Christian Schmidt and German Minister for Family 

Affairs, Senior Citizens, Women, and Youth Manuela Schwesig stated at their joint press 

conference that “e-cigarettes, with or without nicotine, are not harmless. By regulating the sale, 

we will protect children and adolescents from the dangers of smoking.”

45 In an article

summarizing the current status of e-cigarettes and e-shishas (electronic glass-bottomed water 

pipes) in Germany, the Minister for Food and Agriculture underscored the need to enact 

regulations for e-cigarettes of all kinds and to impose age-related access restrictions.46 He

declared that it was regrettable that the EU Tobacco Products Directive did not impose stricter 

regulations for e-cigarettes and that Germany would take advantage of the option to enact stricter 

regulations when implementing it.47

44 Id. art. 20, para. 3(b) & (e).

45 Press Release No. 113 of Apr. 4, 2015, supra note 9. 

46 Elektrische Zigaretten bzw. E-Shishas [E-Cigarettes or E-Shishas], BUNDESMINISTERIUM FÜR ERNÄHRUNG UND 

LANDWIRTSCHAFT [FEDERAL MINISTRY FOR FOOD AND AGRICULTURE] (June 8, 2015), https://www.bmel.de/DE/ 

Ernaehrung/Gesundheit/NichtRauchen/_Texte/E-Zigarette.html. 

47 Council Directive 2014/40/EU, supra note 11, preamble, recital 54.