E-cigarette manufacturer appeals to the Constitutional Court

As follows from the Constitutional Court’s decision, the court initiated the case at the request of “Pro Vape” and will determine whether the amendments to the law on the circulation of tobacco products, tobacco substitute products, herbal smoking products, electronic smoking devices and liquids for them, adopted by the Seimas earlier this year, comply with the first three sentences of Article 105 of the Constitution. Starting next year, they will prohibit the release of liquids for electronic smoking devices and tobacco substitute products containing flavorings onto the market.

An electronic cigarette manufacturer has challenged amendments to the law that would prohibit the release of liquids for electronic smoking devices and tobacco substitute products containing flavorings, with the exception of flavorings that create the smell or taste of tobacco. In addition, it would be prohibited to release tobacco products onto the market if the composition of tobacco products intended for smoking, including newly introduced tobacco products, contains additives that facilitate the inhalation or intake of nicotine, including menthol, its analogues and geraniol.

The company requires an assessment of the conformity of these changes with the first three sentences of Article 105 of the Constitution, which states that in Latvia everyone has the right to property, property cannot be used contrary to the interests of society, and the right to property can only be restricted in accordance with the law.

It follows from the statement that the enterprise needs several months to coordinate and release new products to the market, so the contested norms are already forcing it to make decisions regarding its future business activities. Thus, the contested norms infringe on the property rights of the enterprise, included in the first three sentences of Article 105 of the Constitution.

The Constitutional Court called on the Seimas to submit a response to the court by September 2, outlining the factual circumstances and legal justification for the case.

On 11 January 2024, the Saeima adopted extensive amendments to the Act on the Circulation of Tobacco Products, Tobacco Substitutes, Herbal Smoking Products, Electronic Smoking Devices and Liquids Therefor, including by establishing a ban on placing on the market liquids for electronic smoking devices and tobacco substitute products containing flavourings from 2025. As an exception, flavourings mentioned in the appendix to the Act that create the smell or taste of tobacco are permitted.

In addition, various restrictions were introduced regarding the distribution of tobacco substitutes that came into force earlier, including a ban on the acquisition of such products by means of distance communication, including outside the territory of a member state of the European Union or a state of the European Economic Area.

The law introduces restrictions on the production and release onto the market of tobacco products and other smoking products that visually resemble sweets, snacks, and toys. The amendments to the law also set out the requirements that tobacco substitutes must meet in order to be released onto the market, including requirements for composition, packaging conditions, and information that must be added to the products.

In addition, it has been established that the maximum nicotine concentration in a tobacco substitute must not exceed four milligrams per gram. The law defines a tobacco substitute product as a product that contains or does not contain nicotine (except for medicinal products, tobacco products, herbal smoking products, electronic smoking devices and containers for filling them), which is intended to be used for similar or similar purposes as tobacco products, herbal smoking products, smokeless tobacco products, electronic smoking devices and containers for filling them, regardless of the nicotine content of these products and the type of their use.

The law also toughens fines for violations of tobacco product circulation. For the sale of tobacco products, tobacco substitutes, herbal smoking products, electronic smoking devices or containers for filling them to persons under 20 years of age, the seller will be fined from 280 to 700 euros, and a legal entity from 700 to 7,100 euros. Until now, for the sale of these products to persons under 18, the seller might be fined from 280 to 350 euros, and a legal entity from 700 to 1,400 euros.

Immediately following the amendments to the law were adopted, representatives of Pro Vape criticized them, suggesting that the changes would be “very beneficial to the illegal market.” According to Pro Vape estimates, regarding 90% of the tobacco-free market is made up of flavored products. “As a result, the adopted ban on the use of flavors other than tobacco can be considered an effective ban on products of this entire group,” the company representatives said, noting that by introducing a ban on products for which there is demand, the risk of consumers purchasing these products on the illegal market increases.