Guidance on Commercial communications restrictions for e-cigarettes and refill containers

The purpose of this guidance is to provide assistance to those advertising e-cigarettes or refill containers under Regulation 31 of the European Union (Manufacture, Presentation and Sale of Tobacco and Related Products) Regulations 2016 (S.I. No. 271 of 2016).

As interpretation of the law is a matter for the Courts, this guidance is intended to provide general information on the above Regulations and should not be construed as legal advice. It is without prejudice to any other legal obligations under criminal or civil law.

Background

The Tobacco Products Directive 2014/14/EU (TPD) introduces new rules for commercial communications relating to e-cigarettes and refill containers (Article 20 (5)). These new rules were transposed into Irish legislation by Regulation 31 of the European Union (Manufacture, Presentation and Sale of Tobacco and Related Products) Regulations 2016 and are effective from 20th May 2016.

The Health Service Executive (HSE) is responsible for implementing and enforcing the provisions under Regulation 31.

1. The new rules (subject to the exemptions at 2) prohibit :

  • commercial communications in information society services with the aim or direct or indirect effect of promoting electronic cigarettes or refill containers;
  • commercial communications in the press, with the aim or direct or indirect effect of promoting electronic cigarettes or refill containers;
  • commercial communications in other printed publications, with the aim or direct or indirect effect of promoting electronic cigarettes or refill containers;
  • commercial communications on the radio, with the aim or direct or indirect effect of promoting electronic cigarettes or refill containers;
  • any form of public or private contribution to radio programmes with the aim or direct or indirect effect of promoting electronic cigarettes or refill containers;
  • any form of public or private contribution to any event with the aim or direct or indirect effect of promoting electronic cigarettes or refill containers and involving or taking place in two or more Member States or otherwise having cross-border effects;
  • any form of public or private contribution to any activity with the aim or direct or indirect effect of promoting electronic cigarettes or refill containers and involving or taking place in several Member States or otherwise having cross-border effects;
  • any form of public or private contribution to any individual person with the aim or direct or indirect effect of promoting electronic cigarettes or refill containers and involving or taking place in several Member States or otherwise having cross-border effects;
  • audiovisual commercial communications to which the Broadcasting Act 2009 (No. 18 of 2009) and the European Communities (Audiovisual Media Services) Regulations 2010 (S.I. 258 of 2010) applies for electronic cigarettes and refill containers.

2. An exemption is provided for the advertisement of e-cigarettes and refill containers:

  • in publications that are intended exclusively for professionals in the trade of electronic cigarettes or refill containers, and
  • in publications that are not principally intended for the European Union market where such publications are printed and published in third countries.

3. The new rules do not apply to the advertisement of e-cigarettes and refill containers:

  • at the point of sale in retail outlets where electronic cigarettes and refill containers are sold;
  • in or on outdoor areas such as billboards, posters and bus shelters; and,
  • at events that have no cross-border effects (and which are not going to be broadcast).

The table below outlines in more detail what is now prohibited under the Regulations and what is permitted under the Regulations.

Type of Advertising

Contact

  • To contact the Tobacco and Alcohol Control Unit of the Department of Health, please email tobacco@health.gov.ie
  • To contact the National Tobacco Control Operational Unit of the Health Service Executive, please email info.tpd@hse.ie