Swiss legislations are finally making progress regarding e-cigarettes !

Reminder of the current legal situation

The arrival of e-cigarettes on the Swiss market is rather recent, and does not therefore fall under a specific legislation.

Its current status is defined as a “usual product” by the , and specifically depends of an application decree on nutritional and usual products (ODAIOUsLDAI – the law on nutritional products). It is not considered as a tobacco product (Otab – Decree on tobacco) and does not therefore fall under the same rules, allowing its free sale. Same goes for advertising.

E-cigarettes (containing nicotine or not) don’t fall under the ">federal law against passive smoking either, and can therefore be used in public spaces. Restrictions are self-applied in order to not disturb others, but there is no specific law preventing vaping in public spaces. Owners of establishments such as restaurants and cafés and decide if they tolerate vaping on their premises.

New law on tobacco products – the second pre-project

Legislation is evolving. Indeed, the new law on tobacco products (LPTab) planned for 2020-2021 will be included chapters on e-cigarettes. To our regret of course, as our products obviously don’t contain any tobacco.

The Federal Council has been mandated by the Parliament to elaborate a new pre-project of law, following the pushback of its first version by the same Parliament in 2016.

The mandate requested including the following points:

• The minimum legal age for buying tobacco products is 18. There should be a legal base regulating the testing of such products and advertising targeting teenagers.
• The new version must include the main points of the current decree on tobacco, with the exception of additional restrictions on advertising, promotion and sponsoring. The obligation to disclose spending on advertising and marketing will however be abolished.
• Commerce of alternative products such as e-cigarettes will be legalized under a specific dedicated legislation.

What are we doing while waiting for the new laws to be implemented?

The Federal Office for safety and veterinary affairs (OSAV) invited all major players of the Swiss e-cigarette industry (shops, liquid manufacturers, hardware manufacturers, SVTA and tobacco companies) to participate to a round table on July 6th, 2018. The OSAV wishes that awaiting that the new law becomes effective, minors remain protected regarding the sale and advertising of e-cigarettes.

The challenge raised was to see if the e-cig industry was capable to auto-regulate itself – a resounding “yes!” from all participants.

It was therefore decided that a work group would be established in order to put together a Codex by the fall of 2018. Sweetch was part of this work group, and we have returned to Bern twice since August.

The matters that are under debate are the following:

1) Selling e-cigarettes to teenagers

It is important to note that still today, laws that legislate tobacco sales are cantonal (local): 12 cantons allow sales to minors that are 16 of age (in green below), 11 others forbid selling to under 18s (blue) and the 3 last don’t actually have any legislation at all (in grey). The key question is therefore to understand how the e-cigarette industry is going to auto-regulate itself until the formal law comes into force. The different proposals are the following:

• That the minimum age fixed by the cantons be applied also to e-cigarettes and liquids (containing nicotine)
• That the industry fundamentally refuses to sell e-cigarettes and liquids (containing nicotine) to teenagers
• That the minimum age for the sale of e-cigarettes and liquids (containing nicotine) be fixed at 18, or as of 16 with the agreement of their parents
• That the sale of e-cigarettes and liquids (with nicotine) be authorized as of the age of 16 (in the case where the regulation would remain canton-based, and not federal, so as to not penalize cantons that are currently allowed to see tobacco products to 16 year olds.

Opinions remain for now divided. Sweetch’s position is however very clear: no sale to minors below 18. Period.