Clarifications on the marketing of electronic cigarettes and refill containers

In a recent decision, Sweden’s Patent and Market Court of Appeal provided some clarifications regarding what is considered marketing of electronic cigarettes and refill containers. This article summarises the court’s conclusions.

Electronic cigarettes and refill containers may, under certain conditions, be sold in Sweden. Under Swedish law, which implements the Tobacco Directive 2014/40/EU, it is prohibited to market electronic cigarettes and refill containers to consumers through commercial messages in periodicals, Information Society services and telecasts, order TV or audio radio broadcasts.

In order to market a product online, a trader must be able to describe the product using text or images to provide relevant information about the product and its properties.

In the case in question, the Consumer Ombudsman (KO) considered that certain claims made by a company selling electronic cigarettes and refill containers on the Swedish market constituted marketing rather than product information and were therefore prohibited. The KO consequently brought a case against the company before Sweden’s Patent and Market Court, which found that the claims constituted marketing. The company appealed against the decision to the Patent and Market Court of Appeal, which ruled on the case in October 2022 (no. PMT 9231-21).

The Patent and Market Court of Appeal agreed to a large extent with the lower court and found almost all of the claims in question to constitute marketing. Some of them are set out below.

The company had, for example, claimed: “Härligt syrliga granny smith-äpplen med riktigt fräsch smak. Okomplicerat och välsmakande helt enkelt.” (eng. Lovely sharp Granny Smith apples with a really fresh taste. Just simple and great-tasting.). Another claim was: “inte konstigt att den här lilla e-cigaretten har blivit extremt populär” (eng. no surprise that this little e-cigarette has become extremely popular). The court found that the product description consists of subjective, emotionally charged wording and phrasing of a praising nature that goes beyond what is relevant to describe the product and its characteristics. The claims were therefore considered marketing and thus deemed not permissible.

The court also banned images depicting sweets, fruit, ice cream, vanilla pods and people smoking an electronic cigarette. The court also banned the use of graphics containing the statements “Bra val” (eng. Good choice), “Bästa kvalité” (eng. Best quality), “Fresh Taste”, “Premium e-juicekvalité” (eng. Premium e-juice quality), “Testad product” (eng. Tested product) and “Bästa pris” (eng. Best price). The court’s reasoning was that these images and statements praised the product and also provided an invitation and temptation to consume the product.

The company was also prohibited from publishing in the form of star ratings and reviews, including the following statements: “10/10”, “Mycket bra!” (eng. Very good!), “Mycket nöjd!!!” (eng. Very satisfied!!!), “Längtat” (eng. Wanted this), ”Jätte snygg” (eng. Great-looking) and ”Otroligt läcker!” (eng. Unbelievably delicious!). The court found that these published reviews were commercial messages with the purpose of promoting the products.

The company was also prohibited from using statements such as “REA” (eng. SALE) or “PRISSÄNKT” (eng. REDUCED PRICE), as these were not basic price information but rather messages aimed at promoting the products.

However, the Patent and Market Court of Appeal disagreed with the lower court about the company’s statements regarding free shipping costs. The Patent and Market Court of Appeal found that, in the relevant context, these statements were to be considered information about the terms of contract, which was relevant to the sale of the product and were not to be considered marketing.

Under applicable law on the marketing of electronic cigarettes and their packaging, it may not be implied that a particular product has environmental advantages. The company had used the word “ecojuice” in its labeling. Furthermore, the company had registered “ecojuice” as a trademark. However, it was found that the word “ecojuice” gives the average consumer the impression that the product is ecologically sustainable. The court also stated that the use of such labelling is not permitted, even if it is a registered trademark.

The case provides some clarification for the industry on the dividing line between product information and commercial claims. We will monitor any further developments.