Color Explosions
are prohibited
tobacco advertising
Color Explosions
are prohibited
tobacco advertising
from
Can an online retailer present shisha tobacco on its homepage in front of brightly colored effects? The Karlsruhe Higher Regional Court ruled in April 2026, and the answer is relevant for the entire industry. The question is how much creative freedom tobacco retailers still have online.
What had happened?
Pro Rauchfrei e.V., a consumer association dedicated to the protection against passive smoking, took action against an operator of an online store represented by us that sells tobacco products on its website. The store’s homepage featured several banners presenting shisha tobacco, e-cigarettes and refill containers. One of the banners showed three tobacco tins for shisha tobacco placed in front of color effects in the form of color explosions, which the parties referred to as “Splash”. On the left-hand side of the picture, the words “3 NEW FLAVOURS” were written in capital letters and partly in signal red. The consumer association considered this to be prohibited advertising and issued a cease and desist letter to the store operator. In December 2025, the Regional Court of Heidelberg issued a temporary injunction prohibiting the display (LG Heidelberg, Judgment of 17.12.2025 – Ref. 7 O 16/25 ) . The store operator appealed and the Karlsruhe Higher Regional Court has now confirmed the decision in the second instance (OLG Karlsruhe, Judgment of 08.04.2026 – Ref. 6 U 1/26 ), but with a different reasoning to the original court.
What is the tobacco advertising ban about?
The Tobacco Products Act(Tabakerzeugnisgesetz- TabakerzG) prohibits the advertising of tobacco products, e-cigarettes and refill containers in printed media and online services. Advertising is broadly defined: It covers any type of commercial communication that is intended to directly or indirectly promote sales.
However, offering and selling the products themselves is not prohibited. An online retailer may therefore display its goods and quote prices. This creates a tension, as the transition from the presentation of goods to advertising is fluid. According to case law, the boundary lies where a factual product presentation becomes promotional advertising, which makes the products appear attractive to the public.
How did the OLG Karlsruhe argue?
While the Regional Court of Heidelberg in the first instance still derived the advertising effect from the use of the term “new” – on the grounds that novelties are always perceived as more desirable and better in the advertising world – the Higher Regional Court of Karlsruhe expressly left this aspect open. However, it saw the decisive step beyond a factual product presentation in the colored explosion effects used behind the tobacco tins.
The color explosions behind the respective packaging are specifically intended to draw attention to the three tobacco packages and to highlight the products as something special, as if they were New Year’s Eve fireworks, to draw attention to a possible “taste explosion”, to celebrate the products, to bring them closer to the visitor of the website and to present the products as attractive
Not just a design element
We had argued for the defendant, among other things, that bright colors were part of the normal design of online stores. Without color, a store would be lost among the competition. Furthermore, this was not so-called push advertising, which is presented to potential customers without being asked, but at most pull advertising: the visitor is already on the website and is actively searching for products.
Neither argument convinced the Karlsruhe Higher Regional Court. With regard to color, the court clarified that it was not a matter of any colored background, but of a clear excess effect over and above a neutral product presentation, which was to be seen as an explosion of color in the presentation. With regard to the aspect of pull and push advertising, the court stated in its decision that the Tobacco Products Act does not make such a distinction. According to the wording, the advertising ban applies to any type of commercial communication with a sales-promoting effect. This is determined by the specific form of the presentation and not by the classification of the presentation as “pull advertising”. In the opinion of the court, a general exemption from the ban on pull advertising cannot be inferred from the law.
What does the decision mean for tobacco online stores as a whole?
The ruling has considerable practical implications for the design of online stores. Unfortunately, the decision does not draw a clear-cut line that store operators could use as a legally binding guide. It shows that even the use of eye-catching effects in connection with the tobacco products depicted can lead to the advertising concept of the Tobacco Products Act coming into play. Whether a specific design exceeds the threshold of prohibited advertising must therefore always be examined on a case-by-case basis. The assessment of color elements poses particular difficulties because their advertising effect depends largely on the subjective impression of the viewer and defies a schematic assessment. It is therefore advisable to exercise restraint in practice. Factual product images, labeling and price information remain permissible. If you want to design the store beyond this, you should rely on discreet, simple color gradients that are not focused on the product. Lifestyle backgrounds, fruit images around aroma packaging or emotionalizing lettering designs, on the other hand, pose a considerable legal risk.
Conclusion
With this ruling, the Karlsruhe Higher Regional Court confirms a strict interpretation of the ban on tobacco advertising. This narrow interpretation is in line with the recent case law of the Bamberg Higher Regional Court. Accordingly, bright explosions of color that present products as something special are to be regarded as prohibited advertising, even if the visitor has already accessed the website on his own initiative. Online retailers of tobacco products should have their websites reviewed in the light of this decision.
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