Food flavoring
Or accessories for
E-cigarettes?
Food flavoring
Or accessories for
E-cigarettes?
of
Can an online retailer sell glycerine and flavorings as food ingredients even though it has been advertising the same products as components for e-cigarettes for years? What role does the consumer’s memory of previous advertising claims play when a company changes its product presentation? What do companies need to consider when selling goods that are suitable for both food and non-food purposes?
What is it about?
Some products can be used for several purposes. In this case, they are referred to as dual-use products. It was precisely this phenomenon that was the focus of a complex legal dispute dealt with by the Federal Court of Justice. An online retailer sold food flavorings, glycerine and similar substances, among other things. However, these can also be used to produce e-liquids for electronic cigarettes. The company had explicitly advertised its goods as accessories for e-cigarettes for many years before switching to pure food products from 2022. A competition association sued for an injunction, as in its opinion the goods in question had to be labeled in accordance with the Tobacco Products Act .
Legal background
The Tobacco Products Act and tobacco tax law stipulate special labeling and tax obligations for refill containers for electronic cigarettes. According to the European law of Directive 2014/40/EU, a refill container is any container that contains a liquid that can be used to refill an electronic cigarette. It was disputed whether this term only covers ready-mixed e-liquids or also individual mixed components that can only be used in e-cigarettes after being mixed together. There is also another question: what happens legally if a company changes its product presentation but consumers still have the previous classification of the products as e-cigarette accessories in mind?
The decision
The Federal Court of Justice by Judgment of 11.03.2026 – Ref. I ZR 96/25 partially overturned the decision of the Higher Regional Court of Hamm and referred the case back. In its decision, the Federal Court of Justice clarified several fundamental legal issues.
Firstly, it clarified that the term “refill container” is to be interpreted broadly. It is sufficient if a container is filled with individual mixing components that are suitable for use in e-cigarettes after mixing with other components. It is not necessary for the container to already contain a ready-to-use e-liquid.
Secondly, the Federal Court of Justice ruled on the decisive question of the intended purpose that the decisive factor is how the product is perceived by the targeted consumer group, i.e. the average consumer. In doing so, the Federal Court of Justice expressly took into account that a company cannot easily change the legal classification of a product by redesigning its website. If a company has advertised its products as e-cigarette accessories for years and consumers still remember this classification, this “continued effect” of the earlier advertising can lead to a product currently presented as a foodstuff still being classified as an e-cigarette ingredient.
A commercial act that is not objectionable in itself can also exceptionally trigger defense claims […] if the public associates it with the memory of an earlier unfair act and, because of this continued effect, comes to an idea of the content of the later act that is objectionable under competition law.
The Hamm Higher Regional Court must now re-examine whether the defendant’s specific earlier advertising was so intensive and far-reaching that it has made an impression on a significant proportion of the consumers addressed and continues to have an effect.
Conclusion
The decision has implications for all companies that market products with multiple uses. Those who initially market their products in a particular regulated area cannot simply exit that area by reorienting their advertising. Consumer expectations and the collective memory of the market can have a long-lasting effect. Companies planning such repositioning should therefore seek legal advice at an early stage and carefully consider whether and how past consumer expectation can be overcome. Experience has shown that simply omitting references to previous use is not sufficient.
For retailers in the food sector, the decision means that they must be particularly careful if their goods are also technically suitable for regulated areas such as tobacco substitute products.
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