No limits
to the tobacco
advertising ban?
No limits
to the tobacco
advertising ban?
from
Where does the tobacco advertising ban begin? The Regional Court of Heidelberg recently had to deal with this question. It came to a broad interpretation of the term “advertising” which, in our view, is not convincing and raises more problems than creating clarity for the providers concerned.
Tobacco advertising in online stores
The decision was based on a dispute between the operator of an online store for tobacco products and a non-profit association. The association issued a cease and desist letter to the operator due to several images of tobacco products contained on the website of the online store and obtained a temporary injunction prohibiting the operator from using the images. The operator appealed against part of the injunction and requested that it be lifted insofar as an image of a banner used in the online store was concerned. The banner featured three tobacco tins in front of three colored splash backgrounds as well as the text “3 NEUE FLAVOURS” and the manufacturer’s logo. The competent regional court in Heidelberg rejected the objection in a ruling dated 17.12.2025 (Ref. 7 O 16/25). It considered the image to be advertising, which is subject to the ban on tobacco advertising.
in the overall context with
the lettering “3 NEUE FLAVOURS” positioned on the left – whereby the number “3” and the attribute “NEUE” are highlighted in capital letters
as well as in color, namely signal red – an intended sales-promoting effect can be assumed here
Tension between sales and advertising
The Tobacco Products Act defines the term advertising very broadly as any form of commercial communication with the aim or direct or indirect effect of promoting the sale of a product. Based on this, there is a general ban on advertising for tobacco products, electronic cigarettes and refill containers in the press or in other printed publications that are not aimed exclusively at specialist circles. The Tobacco Products Act also applies this ban on advertising to the Internet.
The Tobacco Products Act, on the other hand, does not prohibit the sale of tobacco products either over the counter or online. The distribution and sale of products is also generally permitted in online retail. Distribution and sale necessarily include the presentation of the products on offer. Without such presentation, lawful online sales would be practically impossible. Against this background, operators of online stores offering tobacco products face enormous hurdles when it comes to assessing when a presentation crosses the line into advertising.
Making the products more attractive
The tendency can be derived from previous case law that not every depiction of tobacco products falls under the advertising ban. Rather, it is necessary that the products or the consumption of the products are brought closer to the viewer as attractive. However, it is highly subjective and depends on the viewer as to when this can be assumed. In this context, the Regional Court of Heidelberg pointed out that the attribute “new” is generally associated with an increase in attractiveness in the sense depicted and stated that it is irrelevant whether this lies in the external effect on others in the sense of a hip lifestyle product or through the promise of a better consumption experience, since in any case it is undoubted that, at least in the advertising world, the “new” should always be better, more beautiful, more desirable and therefore more attractive than the traditional.
Uncertain scale
We are not convinced by the view of the Regional Court of Heidelberg. The court’s reasoning is based primarily on the term “new” and explains that this term is always used in the advertising world to mean better, more beautiful and more desirable and therefore the product appears to be “attractive”.
However, the Regional Court skips a decisive intermediate step. This is because whether a representation is advertising at all cannot be deduced solely from how a certain term is usually understood in advertising. The argumentation boils down to the fact that the word “new” is assessed as advertising because it has a certain effect in advertising. At the same time, it is precisely this effect of the word that is supposed to prove that it is advertising in the first place. The court thus already presupposes the advertising nature of the representation. This is a circular argument.
In addition, the statement is also inaccurate in this sweeping way. The fact that “new” is always understood in advertising as better, more beautiful, more desirable and therefore more attractive than the old may apply to certain product categories, for example in the technical field such as smartphones or computers. In the consumer sector, however, the term “new” simply means “different” and not necessarily better. A new flavor can be neither better nor nicer, but merely different, which depends entirely on the subjective perception of the consumer.
Outlook
Interest groups are currently taking vigorous action against online store operators. For online store operators in particular, the difficult distinction between advertising and product presentation leads to considerable uncertainty and the risk of warnings. Particularly in the context of online sales, there are still unresolved demarcation issues. In order to avoid prejudging case law to the detriment of providers, we recommend taking action against such cease and desist letters. As a result, each individual case must be examined to determine whether it can be classified as advertising. There is considerable scope for argumentation here.
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