Vape ads
from Netto
prohibited.
Vape ads
from Netto
prohibited.
from
Can an online store describe e-cigarettes with terms such as “delicious flavors”, “sustainable enjoyment” or “suitable for all target groups”? Or does this violate the ban on advertising e-cigarettes on the internet? The Bamberg Higher Regional Court answered these questions in a case against the discounter Netto.
Pro smoke-free vs. net
The consumer protection association Pro Rauchfrei e.V. came across Netto’s online store at netto-online.de during an internet search on 30.11.2025. On the product page for disposable vapes, Netto used a number of advertising formulations to describe the e-cigarette products offered there. These included statements such as the promotion of “delicious and incredible flavors”, the promise of “impressive flavor reproduction” or the recommendation “suitable for all target groups, from vapor beginners to experienced vapers”.
Pro Rauchfrei sent Netto a cease and desist letter. After the company failed to issue a cease-and-desist declaration, the association applied to the Bamberg Higher Regional Court for an interim injunction. The application was directed against a total of three complexes: a product banner on the vape category page, eight specific advertising statements in the product descriptions and the use of the word “only” as a price supplement.
Pro Rauchfrei e.V.
Pro Rauchfrei e.V. is a consumer protection association based in Munich, which was founded in Berlin in 2004 and sees itself as Germany’s largest non-smoking association. The association is registered as a so-called qualified organization with the Federal Office of Justice and the European Commission. As a qualified institution, the association has the power to bring an action for injunctive relief against unfair business practices by companies in the interests of consumer protection. The association focuses on enforcing non-smoker protection laws, youth protection regulations and the advertising bans of the Tobacco Products Act.
The decision
The OLG Bamberg granted the application on 04.02.2026 – Ref. 3 UKl 30/25 e mainly took place. Of the three challenged complexes, two were successful and one was rejected.
Product banners: No prohibited advertising
With regard to a banner on the product page that depicted vapes on a pastel-colored background, the OLG denied an infringement. The banner did not appear on the homepage, but only on the category page for disposable vapes. In the opinion of the Senate, the mere depiction of products without an additional advertising statement was not suitable for presenting the products as “attractive”. The court was unable to recognize a promotional advertising effect.
Eight advertising claims: Prohibited advertising
The court took a completely different view of the specific product descriptions. The Senate prohibited Netto from using a total of eight formulations, including:
- the advertising as “suitable for all target groups, from vapor beginners to experienced vapers”
- the invitation to discover “a new world of delicious and incredible flavors”
- advertising an “impressive taste reproduction and a constant vapor experience for lasting enjoyment”
- the description as “high-quality products in the field of e-cigarettes and e-liquids”
- emphasizing the “stylish look” of a particular trademark
According to the court, all of these statements go beyond factual information on the execution of the contract. The focus was solely on advertising. The OLG already saw the use of the word “suitable” as a trivialization of the dangers of smoking, because this would hide the health risks of the e-cigarette.
Price supplement “only”
However, the court allowed the price supplement “only” to pass. A price indication is generally part of the offer and therefore not advertising. In the specific case, all prices on the entire offer page were either marked with “only” or with “from” – a comparative reference that would make an individual price appear particularly favorable was therefore completely absent.
No “pull advertising” exception
Netto had argued that this was so-called “pull advertising”: the customer had to actively visit the product page, their interest was merely directed, not first aroused. The Bamberg Higher Regional Court clearly rejected this argument.
The Senate found that such a restrictive interpretation could not be derived either from the wording of the law or from its meaning and purpose. The law expressly covers “any type of commercial communication” with the aim or effect of promoting sales. In addition, the European Tobacco Products Directive requires a “restrictive approach” to the advertising of e-cigarettes.
The court dealt in detail with ECJ case law on “pull advertising” for medicinal products. In an earlier case, the ECJ had ruled that the mere reproduction of officially approved product information on a manufacturer’s website does not constitute prohibited advertising – whereby the “pull character” was merely an additional indication against an advertising classification, but not an independent element of permission. Rather, the decisive factor was whether the product information was reproduced unchanged or whether it was prepared by the manufacturer for advertising purposes. In Netto’s case, the product descriptions went far beyond a mere factual description and obviously served to promote sales.
Online store as a service of the information society
The OLG confirmed the established case law that an online store is to be classified as an information society service. The advertising ban from the Tobacco Products Act therefore also applies to product descriptions in online stores – regardless of whether purchases can actually be made there.
Received a cease and desist letter?
How to react
You are best advised to
cease and desist letter!
A cease and desist letter, e.g. for infringement of competition law, industrial property rights or copyright, should always be taken seriously, as it can have considerable legal and financial consequences.
Timely and professional advice is crucial in order to minimize risks and develop the right strategy.
- Check cease and desist letter: Have the cease and desist letter legally checked. Not every cease and desist letter is justified, formally correct and abusive cease and desist letters are unlawful.
- Observe the deadline: Be sure to respond within the set deadline to avoid further legal action such as an injunction or a lawsuit.
- Check the cease-and-desist declaration: Do not sign a pre-formulated cease-and-desist declaration without legal advice. It could be too far-reaching and lead to considerable and lasting disadvantages. Once a cease-and-desist declaration has been signed, it is almost impossible to get rid of it and can result in considerable follow-up costs in the form of high contractual penalties.
- Strategy: Regardless of whether the cease and desist letter is justified or not, you should consider the right strategy for responding to the cease and desist letter with professional support. Many aspects play a role here. For example, there may be formal errors or the submission of a cease-and-desist declaration may involve incalculable risks.
Conclusion
The decision of the Bamberg Higher Regional Court has considerable practical significance for the entire online trade in e-cigarettes.
For online retailers, the ruling makes it clear that for e-cigarettes and refill containers in the online store, only factual information that serves to process the contract is permitted, such as trademark, filling quantity, nicotine content or technical specifications. According to the court, any other advertising claims (flavor descriptions, lifestyle references or suitability recommendations) are violations of the ban on tobacco advertising. This also applies if the customer has to actively visit the product page.
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