Reference: 2016/TACU/11 v2
First issued: 21st October 2016
Last updated: 28th June 2017

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The Tobacco Products Directive 2014/14/EU (TPD) introduces new rules for commercial communications relating to e-cigarettes and refill containers (Article 20 (5)). These new rules were transposed into Irish legislation by Regulation 31 of the European Union (Manufacture, Presentation and Sale of Tobacco and Related Products) Regulations 2016 and are effective from 20th May 2016.The Health Service Executive (HSE) is responsible for implementing and enforcing the provisions under Regulation 31.

1. The new rules (subject to the exemptions at 2) prohibit:

i. commercial communications in information society services with the aim or direct or indirecteffect of promoting electronic cigarettes or refill containers;

ii. commercial communications in the press, with the aim or direct or indirect effect of promoting electronic cigarettes or refill containers;

iii. commercial communications in other printed publications, with the aim or direct or indirecteffect of promoting electronic cigarettes or refill containers;

iv. commercial communications on the radio, with the aim or direct or indirect effect of promoting electronic cigarettes or refill containers;

v. any form of public or private contribution to radio programmes with the aim or direct or indirect effect of promoting electronic cigarettes or refill containers;

vi. any form of public or private contribution to any event with the aim or direct or indirect effect ofpromoting electronic cigarettes or refill containers and involving or taking place in two or moreMember States or otherwise having cross-border effects;

vii. any form of public or private contribution to any activity with the aim or direct or indirect effectof promoting electronic cigarettes or refill containers and involving or taking place in severalMember States or otherwise having cross-border effects;

viii. any form of public or private contribution to any individual person with the aim or direct orindirect effect of promoting electronic cigarettes or refill containers and involving or takingplace in several Member States or otherwise having cross-border effects;

ix. audiovisual commercial communications to which the Broadcasting Act 2009 (No. 18 of 2009) and the European Communities (Audiovisual Media Services) Regulations 2010 (S.I. 258 of 2010) applies for electronic cigarettes and refill containers.

2. An exemption is provided for the advertisement of e-cigarettes and refill containers:

i. in publications that are intended exclusively for professionals in the trade of electronic cigarettes or refill containers, and

ii. in publications that are not principally intended for the European Union market where such publications are printed and published in third countries.

3. The new rules do not apply to the advertisement of e-cigarettes and refill containers:

i. at the point of sale in retail outlets where electronic cigarettes and refill containers are sold;

ii. in or on outdoor areas such as billboards, posters and bus shelters; and,

iii. at events that have no cross-border effects (and which are not going to be broadcast).

Guidance on notification of e-cigarettes and refill containers:

Under Regulation 26 of the 2016 Regulations, a manufacturer or importer of an e-cigarette or refill container must submit a notification to the Health Service Executive of any such products he or she intends to place on the Irish market. The notification must be submitted through a European Union Common Entry Gate (EU-CEG) made available by the European Commission. Guidance on the EU-CEG and how to apply for a submitter ID and a European Commission Authentication Account (ECAS) account is available from the European Commission’s website here http://ec.europa.eu/health/euceg/ Notification of a product on the Irish market before 20 May 2016 must be submitted by 20 November 2016. Notification of a new or a substantially modified product must be submitted not less than 6 months before placing it on the Irish market. The obligation to notify a product does not apply to retailers unless he or she also falls within the definition of a manufacturer or importer. A manufacturer is defined as any natural or legal person who manufactures a product or has a product designed or manufactured and markets that product under their name or trademark. If a retailer also qualifies as a manufacturer, he or she must submit a notification for each relevant product. An importer is defined as the owner of, or a person having the right of disposal over, tobacco or related products that have been brought into the territory of the European Union. If a retailer also qualifies as an importer, he or she should check with his or her manufacturer if they have already submitted a notification for each relevant product. If the manufacturer has already done so, the importer does not need to submit a duplication notification.

Fees:

Under the 2016 Regulations, there is no fee for notifying e-cigarettes or refill containers. This reflects the current legislative position and is subject to any future legislative amendment.

Commercial Communications in Information Society Services:

Regulation 31 requires that the content of websites must not have the aim or the direct or indirect effect of promoting e-cigarettes or refill containers (e-liquids containing nicotine).

The following are examples of practices that are considered to breach Regulation 31: 

• Offering discounts or offers on products.
• Free delivery.
• Offers for bulk buying. 
• Non-factual information e.g. expansive descriptions of the taste or smell of the product. 
• Pictures surrounding the image of the product, e.g. of food products etc. 
• Health warnings not as prescribed i.e. products offered for sale in the Republic of Ireland must carry the health warning as prescribed in the Irish and English language on the unit packet (refill container/bottle) and on the outside packaging. 
• Star ratings, reviews. 
• Reward points etc.
• The use of other social media sites to promote e-cigarettes and refill containers (e-liquids containing nicotine) is also prohibited. 

Please review your website to ensure compliance with Regulation 31.