The First Italian Case on Electronic Cigarettes’ Advertising

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:

1. 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;
2. commercial communications on the radio;
3. any form of public or private contribution to any event, activity or individual person which may have transnational effects; and
4. 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:

1. publication of e-cigs pictures on the Internet, specifically on the companies’ official websites and in their social channels (i.e. Facebook, Instagram), including the companies’ re-posting on their social channels (also through the use of links) messages autonomously posted by third parties (e.g., influencers) with hashtags that recall a brand or model of e-cig; and 
2. posting of posters and advertising billboards in public places or areas open to the public or on public transports (like what was done in Rome).

Other advertising activities were also considered by the Court, such as the distribution of information flyers. However, in this case, the Court stated that the assessment of whether they actually had promotional content should be postponed to the merits of the case.

A very restrictive approach

By reading the decision of the Court, it is clear that the Court adopted a very restrictive approach to the advertising activities that can be considered permitted under Italian law.

Firstly, the Court pointed out that the texts allowed are exclusively those containing information, descriptions and instructions on the use of e-cigs without promotional content (i.e. information on prices and technical characteristics of the product such as ingredients, taste and nicotine content). Consequently, the company may only provide such descriptive/informative information on its official website as well as its social channels. For the same reason, only images of e-cigs and liquid refills used to help in the choice of the product to be purchased or to describe the products’ technical characteristics are allowed.

Therefore, any information or image provided without this descriptive/informative intent falls within the ban provided for by Article 21(10) of Legislative Decree No. 6/2016 due to their nature of commercial/advertising communication.

Secondly, the Court clarified that the “commercial communications” prohibited by Legislative Decree No. 6/2016 includes any form of communication intended, directly or indirectly, to promote the sale of goods and services to consumers under Legislative Decree No. 70 of April 9, 2003, by using a broad interpretation of this wording.

Thirdly, the Court specified that the prohibition of commercial communications in the “press and other printed publications” covers commercial communications circulated not only in the press, but also on "any type of typographical or photographic reproduction intended for publication on media other than printed paper" such as posters and advertising billboards placed in public places or areas open to the public and on public transport.

Some small loopholes

Although the Court’s interpretation was very restrictive, it is possible to find some small loopholes.

Specifically, the Court stated that:

1. texts containing information, descriptions and instructions on the use of e-cigs without promotional contents (i.e., information on prices and technical characteristics of the product such as ingredients, taste and nicotine content) are allowed;
2. images of the products can be published on the home page of the company’s website, to immediately inform the consumer of the fact that he/she has accessed the official site of a company that produces and / or markets that particular type of e-cig;
3. the company may have an official website as well as social channels where the above information can be published; and
4. post published by third independent users without any kind of compensation (i.e., user generated content), with hashtags that recall a certain model or brand of e-cig are out of the companies’ responsibility.

The above principles can be considered a useful guide for operators that intend to advertise e-cigs. However, they are only a small part of possible promotional activities.

In any event, since the proceedings are still ongoing, it will be interesting to see whether or not the principles established by this urgent order will be definitely confirmed by the Court. If they are confirmed, these principles would have a strong impact on the advertising activities that can be carried out in this industry in Italy and all operators should address them very carefully.