The First Italian Case On Electronic Cigarettes' Advertising

Author:Mr Ernesto Apa (Portolano Cavallo) and Donata Cordone (Portolano Cavallo)
Profession:Global Advertising Lawyers Alliance (GALA)

On November 5, 2019, the Court of Rome, by giving a very restrictive interpretation of Italian legislation, ordered two companies to stop (almost) any commercial communications relating to electronic cigarettes (e-cigs) and liquid refills, as an urgent measure.

This was the first Italian case on advertising of e-cigs.

Overview on the Italian regulation concerning the sale and advertising of e-cigs

Legislative Decree No. 6/2016 implements the EU tobacco products Directive 2014/40/EU. Specifically, Article 21(10) reproduces faithfully the content of Article 20 of Directive 2014/40/EU and establishes a ban on advertising e-cigs and refill liquids. According to the Directive, this restrictive approach to the advertising of e-cigarettes and liquid refills is aimed at ensuring the protection of human health, as e-cigs may become a possible transition product towards nicotine dependence.

Specifically, the mentioned Article 21(10) prohibits the following activities which have the aim or the direct or indirect effect of promoting electronic cigarettes and refill containers:

commercial communications in information society services, in the press and other printed publications, except for publications that are intended exclusively for professionals in the trade of e-cigs or refill containers and for publications which are printed and published in third countries, where those publications are not principally intended for the European Union market; commercial communications on the radio; any form of public or private contribution to any event, activity or individual person which may have transnational effects; and audiovisual commercial communications to which Directive 2010/13/EU ("Audiovisual Media Services ("AVMS") Directive) of the European Parliament and of the Council applies. The scope of the prohibition to carry out advertising activities relating to e-cigs depends on the interpretation of the above provisions, including , specifically, the wording "printed publication" of item (i) above, since it is unclear whether it may apply also to all kinds of posters and billboards.

The ruling of the Court of Rome

An association of consumers sued two companies alleging that the advertising activities they were carrying out were illegal, under Article 21(10) of Legislative Decree No. 6 of January 12, 2016.

The Court ordered to immediately stop - as illegal - the following advertising activities:

publication of e-cigs pictures on the Internet...

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