Advertising for Ecig or electronic cigarettes and refill liquids is prohibited by law in Italy according to the EU Directive of 2014.
However, some industry operators have launched massive advertising campaigns.
But let’s go in order.
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What are electronic cigarettes?
But what are electronic cigarettes?
The definition comes from the law with Directive 2014/40/EU of the European Parliament, transposed and implemented by Legislative Decree no. 6 of January 12, 2016, according to which Article 2 states:
“electronic cigarette: a product usable for the consumption of vapor containing nicotine through a mouthpiece or any component of such product, including a cartridge, a tank, and the cartridge-less or tank-less device. Electronic cigarettes can be disposable or rechargeable by means of a recharge container or a tank or rechargeable with disposable cartridges;
recharge liquid container: a bottle containing a liquid containing nicotine usable to recharge an electronic cigarette.”
The prohibition of tobacco product advertising
For tobacco products, such as traditional cigarettes, advertising is prohibited by Law No. 165 of April 10, 1962 (still in force today), where the single article established the general principle that:
“The advertising of any smoking product, national or foreign, is prohibited.”
The prohibition of electronic cigarette advertising in the EU Directive
EU Directive 40/2014 is aimed at harmonizing national legislation on tobacco and electronic cigarettes.
In particular, Article 43 of the Recitals provides that:
… Electronic cigarettes can become a product leading to nicotine addiction and ultimately to the consumption of traditional tobacco, as they imitate and make smoking appear normal. For this reason, it is appropriate to adopt a restrictive approach to the advertising of electronic cigarettes and refill liquid containers.
Then, in Article 20 of the Directive, it is provided that:
Member States shall ensure that: a) commercial communications in information society services, in the press and other printed publications, with the aim or direct or indirect effect of promoting electronic cigarettes and refill liquid containers, are prohibited, with the exception of publications intended exclusively for professionals in the trade of electronic cigarettes and refill liquid containers and printed publications edited in third countries, if such publications are not mainly intended for the Union market;
Prohibition of electronic cigarette advertising in Italy
The prohibition of direct and indirect advertising of electronic cigarettes is established by law and in particular by Legislative Decree no. 6 of January 12, 2016, Article 21, paragraph 10, according to which “are prohibited:
commercial communications in information society services, in the press and other printed publications, with the aim or direct or indirect effect of promoting electronic cigarettes and refill liquid containers, with the exception of publications intended exclusively for professionals in the trade of electronic cigarettes and refill liquid containers and printed publications edited in third countries, if such publications are not mainly intended for the European Union market;
commercial communications via radio aimed at promoting electronic cigarettes and refill liquid containers;
any form of public or private contribution to radio programs aimed at promoting electronic cigarettes and refill liquid containers;
any form of public or private contribution to events, activities, or individual persons aimed at promoting electronic cigarettes and refill liquid containers and involving or taking place in various Member States or otherwise having cross-border implications;
for electronic cigarettes and refill liquid containers, audiovisual commercial communications to which Directive 2010/13/EU of the European Parliament and of the Council applies.”
Information society services
We have seen that the regulations prohibit the advertising of electronic cigarettes via TV, via radio, through events, etc., but what is meant by the prohibition of advertising on information society services?
The definition of information society services comes from Directive 2000/31/EC, transposed and implemented by Legislative Decree No. 70 of April 9, 2003, which at Article 2 clarifies that:
“a) ‘information society services’: economic activities carried out online, as well as services defined by Article 1, paragraph 1, letter b), of Law No. 317 of June 21, 1986, and subsequent amendments;
(…)
f) ‘commercial communications’: all forms of communication intended, directly or indirectly, to promote goods, services or the image of a company, an organization or a subject engaged in agricultural, commercial, industrial, craft or liberal profession.”
Prohibition of the use of websites and social networks
As stated by the Rome Tribunal, the ban on commercial communications extends to websites and that “even on the official website[1] [of sellers or producers], or on any other site owned by [sellers or producers], advertising of electronic cigarettes and refill liquids must be considered prohibited, unless it is commercial communications, but real information, descriptions, and instructions on the use of the products… The considerations just made for the official website… also apply to the pages of social channels attributable to resistant companies.” “34. The fact that only users who have declared themselves adults can purchase electronic cigarettes and refill liquids on the official website, as in any physical store, does not also mean that it is a virtual place with voluntary access by adult subjects where advertising messages or commercial communications otherwise prohibited on the internet can be allowed.”
Therefore, social networks and websites can certainly be used for information and descriptions of products, while they certainly cannot be used to promote the sale of products or promise qualities with adjectives that enhance their description.
Discounts and promotions on electronic cigarettes
The Tribunals of Rome and Turin have affirmed the illegitimacy of all those commercial practices consisting of promotions concerning discounts on electronic cigarettes and refill liquids, proposed with discounts, promotions, price reductions, crossed-out and reduced prices, etc.
And in fact, it is illegitimate “any marketing technique consisting of anchoring in the consumer’s mind an initial price (even if actually applied previously) or proposing a more advantageous current price to him”, since it creates a cognitive bias that instinctively leads him to consider an economic advantage (in terms of savings) in purchasing the product. Such “price information”, therefore, can only be considered promotional activities whose purpose or effect, direct or indirect, is to promote the sale of products.”
And so, for example, the incentivization to purchase through the provision of discounts and offers must be considered prohibited, and in particular, the provision of “an offer of fifty percent reduction compared to the base price or the base price is crossed out in favor of a reduced price on a promotional basis”.
Residual communication spaces
In light of the regulatory framework and the jurisprudence of the Milan Tribunal and the Rome Tribunal, which with 4 different provisions have completely blocked all advertising initiatives undertaken by 3 different tobacco operators venturing into the electronic cigarette adventure, it can be stated that residual communication spaces are very limited.
In particular, only purely informational, and not advertising, communication remains.
In this sense, the Court of Rome in 2019 stated that:
In this light, reproductions of images of electronic cigarettes and refill liquid containers on the pages of manufacturers’ and/or retailers’ websites solely for the purpose of allowing consumers to identify and choose the product to purchase online, as well as to describe its technical characteristics and in instruction manuals, are considered allowed, no other types of images whose purpose or effect, direct or indirect, is to promote the sale of the products.
In addition to the pages containing information, descriptions, and technical characteristics of the various types of electronic cigarettes and refill liquids, the presence of a product image on the home page of the website www.____.com is considered permissible in order to immediately inform the consumer that they have accessed the official website of the company that produces and/or markets that particular type of electronic cigarette.
Therefore, all other images reproducing electronic cigarettes, alone or with people and/or things, which cannot be attributed the descriptive/informative characteristics just indicated and are considered advertising messages aimed at promoting the sale of such products, are prohibited, as such, by Article 21, paragraph 10, letter a) of Legislative Decree no. 6/2016.”
The issue is gaining increasing importance today in light of the multitude of operators carrying out commercial communications, including big tobacco, operators focused exclusively on electronic cigarettes, foreign operators, but also small retailers and tobacconists who casually and unawarely publish illegal contents, exposing themselves to significant legal risks and sanctions.
In case of need for assistance from a law firm in Italy that has repeatedly dealt with the subject in recent years, you can contact us for a consultation request.
