The fog of war

| April 19, 2017

Germans are arguing over whether smoking restrictions apply to vaping.

By Stefanie Rossel

Germany—isn’t that the country that, apart from beer, fast cars and Neuschwanstein Castle, is also known for its bureaucratic tendencies and thorough regulation of virtually everything? Well, it certainly doesn’t live up to its reputation when it comes to the use of vaping devices in public places. Here, we enter a realm of contradictions and uncertainty.

Of course, Germany has had its national law for the protection of nonsmokers, the Nichtraucherschutzgesetz or NiSchG, in place for many years, in fact since 2007. In addition, each of Germany’s 16 states has its own legislation, most of it based on national law but with variations. Principally, the law stipulates that smoking is prohibited on public transport, at the workplace, and in hospitals, schools, gymnasiums, cultural institutions and administrative buildings. Smoking in restaurants and bars has been banned in most states since 2008. Smoking is still allowed in designated areas, and there are exceptions to the ban in some states, where smoking is still allowed in pubs that comprise only one room, measure no more than 75 square meters and are explicitly tagged as smoking areas.

Hang on, we’re talking about smoking here. Surely the law shouldn’t apply to vaping, should it? When the legislation was drafted, e-cigarettes were already on the market but were not being considered by legislators. And since then no amendments have been made that would explicitly include e-cigarettes in the law.

Amid this regulatory fog, the rise of conflicts was only a matter of time. In 2014, the owner of a restaurant in Cologne filed a complaint at the Higher Regional Court for North Rhine-Westphalia (NRW). The man had tolerated the use of vaping devices in his restaurant and was threatened to be fined by the city of Cologne for violating NRW’s nonsmoker protection law. For such an offense, the state’s law, one of Germany’s strictest, specifies a fine of up to €2,500 ($2,656). The restaurant owner countered that e-cigarettes were exempt from NiSchG because, due to a lack of pyrolysis, they do not produce smoke. In addition, he argued that including e-cigarettes into the law was unconstitutional.

Vaping versus smoking

The court ruled in his favor, saying that NRW’s law lacked explicit regulations for e-cigarettes. The law prohibited “smoking” in certain establishments, such as restaurants, but in general and professional language use, smoking implied the inhalation of smoke that is produced in the combustion process of tobacco products. By contrast, the court argued, the use of an e-cigarette did not involve combustion but a vaporization process; furthermore, the vaporized liquid was not a tobacco product in the sense of the law, even if it contained nicotine. The development of the law in NRW did not justify the application of the smoking ban to e-cigarettes, either, according to the court. When legislators in 2007 implemented the law, they had neglected vaping devices; when an amendment in 2012 was made, the legislator had intended to treat e-cigarettes like combustible smokes but in fact did not change the respective wording in the legal text, which would have been essential to sufficiently clarify the scope of application to users. The NiSchG, the court said, had the sole purpose of protecting people from the dangers of secondhand smoke; potential harm caused by e-cigarettes was neither identical nor could it be compared to that of a combustible cigarette. There was no scientific evidence yet for potential hazards through vapor for “secondhand” vapers, the court concluded. Had legislators assumed that there might be a danger to health coming from vapor, they would have been obliged to consider this when amending the law in 2012. An appeal of the case was rejected.

So far, so good for vapers in North Rhine-Westphalia, but what about the remaining states? Holger Schwemer, an expert in administrative law who defended the restaurant owner, views the judgment to be binding for all German states. “The court has referred the term of smoking to the combustion process and not to the vaporization process,” he said. “Since the term ‘smoking’ is being used in the same way in all federal laws for the protection of smokers, we may assume that, with regard to the rule of law that is binding for administration, the use of vaping devices anywhere in Germany can no longer be regarded as violation of the respective NiSchG.”

Verband des eZigarettenhandels (VdeH), an e-cigarette trade association, said the ruling also questioned the legal position of the German government, as well as that of the World Health Organization as far as e-cigarettes and the protection from secondhand vapor were concerned. After the judgment, the association said, it was essential for German legislators to develop definite rules independent of the NiSchG for this area.

Lagging

Almost three years later, Philip Droegemueller, VdeH’s spokesman, is convinced that federal health ministries have liberalized their attitude toward the use of e-cigarettes in public places, in line with the court ruling. “A number of studies have shown since then that the share of harmful emissions from e-cigarettes is low, thousand times lower than the emissions of combustible cigarettes. Thus, the equalization of both product groups is totally wrong.”

However, Droegemueller may be cheering too soon. On its website for smoking cessation, Germany’s federal office for health education says the chemical composition of exhaled vapor remains unclear. “It cannot be ruled out that the interior air will be contaminated with pollutants. Hence the inhalation of vape may cause health risks. Where the national law for the protection is in place, i.e., in federal institutions and in public transport, the use of e-cigarettes is not allowed.”

Health authorities outside NRW don’t share Droegemueller’s point of view, either. Vapers should be cautious when using their devices in, for example, Rhineland-Palatinate (RP). “We are aware of the ruling by the court in North Rhine-Westphalia,” says Stefanie Schneider, spokeswoman of the state’s health ministry. “With a few exceptions, the protection of nonsmokers is the responsibility of the federal states. Each state has its own law with different rules; the intention of the individual federal legislators is also different. The verdict relates to the NiSchG of NRW, hence it is not binding for Rhineland-Palatinate.”

According to Schneider, RP legislators intend to offer their population broad protections against secondhand smoke, which she says is expressed in the first paragraph of the state’s law. The paragraph, however, speaks of “tobacco smoke.” E-cigarettes or vapor aren’t mentioned. “In RP, the rules of RP’s NiSchG also apply to e-cigarettes,” Schneider maintains. “The use of e-cigarettes is hazardous to health. Among other things, this hazard is caused by the delivery of harmful substances to the surrounding air and the exhalation by the user of the e-cigarette,” she adds, also referring to the 2012 statement.

Whether RP’s interpretation of the NiSchG could stand up in a court of law remains questionable. Until the fog surrounding the use of vaping devices in public places in Germany is lifted, vapers best make sure they are well-informed about their current location’s regulations before they light up—sorry, switch on.

 

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