Directive 2014/40/EU of the European Parliament and of the CouncilShow full title

TITLE III ELECTRONIC CIGARETTES AND HERBAL PRODUCTS FOR SMOKING

Article 20 Electronic cigarettes

1. The Member States shall ensure that electronic cigarettes and refill containers are only placed on the market if they comply with this Directive and with all other relevant Union legislation.

This Directive does not apply to electronic cigarettes and refill containers that are subject to an authorisation requirement under Directive 2001/83/EC or to the requirements set out in Directive 93/42/EEC.

2. Manufacturers and importers of electronic cigarettes and refill containers shall submit a notification to the competent authorities of the Member States of any such products which they intend to place on the market. The notification shall be submitted in electronic form six months before the intended placing on the market. For electronic cigarettes and refill containers already placed on the market on 20 May 2016, the notification shall be submitted within six months of that date. A new notification shall be submitted for each substantial modification of the product.

The notification shall, depending on whether the product is an electronic cigarette or a refill container, contain the following information:

(a) the name and contact details of the manufacturer, a responsible legal or natural person within the Union, and, if applicable, the importer into the Union;

(b) a list of all ingredients contained in, and emissions resulting from the use of, the product, by brand name and type, including quantities thereof;

(c) toxicological data regarding the product's ingredients and emissions, including when heated, referring in particular to their effects on the health of consumers when inhaled and taking into account, inter alia, any addictive effect;

(d) information on the nicotine doses and uptake when consumed under normal or reasonably foreseeable conditions;

(e) a description of the components of the product; including, where applicable, the opening and refill mechanism of the electronic cigarette or refill containers;

(f) a description of the production process, including whether it involves series production, and a declaration that the production process ensures conformity with the requirements of this Article;

(g) a declaration that the manufacturer and importer bear full responsibility for the quality and safety of the product, when placed on the market and used under normal or reasonably foreseeable conditions.

Where Member States consider that the information submitted is incomplete, they shall be entitled to request the completion of the information concerned.

Member States may charge manufacturers and importers proportionate fees for receiving, storing, handling and analysing the information submitted to them.

3. Member States shall ensure that:

(a) nicotine-containing liquid is only placed on the market in dedicated refill containers not exceeding a volume of 10 ml, in disposable electronic cigarettes or in single use cartridges and that the cartridges or tanks do not exceed a volume of 2 ml;

(b) the nicotine-containing liquid does not contain nicotine in excess of 20 mg/ml;

(c) the nicotine-containing liquid does not contain additives listed in Article 7(6);

(d) only ingredients of high purity are used in the manufacture of the nicotine-containing liquid. Substances other than the ingredients referred to in point (b) of the second subparagraph of paragraph 2 of this Article are only present in the nicotine-containing liquid in trace levels, if such traces are technically unavoidable during manufacture;

(e) except for nicotine, only ingredients are used in the nicotine-containing liquid that do not pose a risk to human health in heated or unheated form;

(f) electronic cigarettes deliver the nicotine doses at consistent levels under normal conditions of use;

(g) electronic cigarettes and refill containers are child- and tamper-proof, are protected against breakage and leakage and have a mechanism that ensures refilling without leakage.

4. Member States shall ensure that:

(a) unit packets of electronic cigarettes and refill containers include a leaflet with information on:

(i)

instructions for use and storage of the product, including a reference that the product is not recommended for use by young people and non-smokers;

(ii)

contra-indications;

(iii)

warnings for specific risk groups;

(iv)

possible adverse effects;

(v)

addictiveness and toxicity; and

(vi)

contact details of the manufacturer or importer and a legal or natural contact person within the Union;

(b) unit packets and any outside packaging of electronic cigarettes and refill containers:

(i)

include a list of all ingredients contained in the product in descending order of the weight, and an indication of the nicotine content of the product and the delivery per dose, the batch number and a recommendation to keep the product out of reach of children;

(ii)

without prejudice to point (i) of this point, do not include elements or features referred to in Article 13, with the exception of Article 13(1)(a) and (c) concerning information on the nicotine content and on flavourings; and

(iii)

carry one of the following health warnings:

‘This product contains nicotine which is a highly addictive substance. It is not recommended for use by non-smokers’.

or

‘This product contains nicotine which is a highly addictive substance.’

Member States shall determine which of these health warnings is to be used;

(c) health warnings comply with the requirements specified in Article 12(2).

5. Member States shall ensure that:

(a) commercial communications in Information Society services, in the press and other printed publications, with the aim or direct or indirect effect of promoting electronic cigarettes and refill containers are prohibited, except for publications that are intended exclusively for professionals in the trade of electronic cigarettes or refill containers and for publications which are printed and published in third countries, where those publications are not principally intended for the Union market;

(b) commercial communications on the radio, with the aim or direct or indirect effect of promoting electronic cigarettes and refill containers, are prohibited;

(c) any form of public or private contribution to radio programmes with the aim or direct or indirect effect of promoting electronic cigarettes and refill containers is prohibited;

(d) any form of public or private contribution to any event, activity or individual person with the aim or direct or indirect effect of promoting electronic cigarettes and refill containers and involving or taking place in several Member States or otherwise having cross-border effects is prohibited;

(e) audiovisual commercial communications to which Directive 2010/13/EU of the European Parliament and of the Council(1) applies, are prohibited for electronic cigarettes and refill containers.

6. Article 18 of this Directive shall apply to cross-border distance sales of electronic cigarettes and refill containers.

7. Member States shall require manufacturers and importers of electronic cigarettes and refill containers to submit, annually, to the competent authorities:

(i)

comprehensive data on sales volumes, by brand name and type of the product;

(ii)

information on the preferences of various consumer groups, including young people, non-smokers and the main types of current users;

(iii)

the mode of sale of the products; and

(iv)

executive summaries of any market surveys carried out in respect of the above, including an English translation thereof.

Member States shall monitor the market developments concerning electronic cigarettes and refill containers, including any evidence that their use is a gateway to nicotine addiction and ultimately traditional tobacco consumption among young people and non-smokers.

8. Member States shall ensure that the information received pursuant to paragraph 2 is made publicly available on a website. The Member States shall take the need to protect trade secrets duly into account when making that information publicly available.

Member States shall, upon request, make all information received pursuant to this Article available to the Commission and other Member States. The Member States and the Commission shall ensure that trade secrets and other confidential information are treated in a confidential manner.

9. Member States shall require manufacturers, importers and distributers of electronic cigarettes and refill containers to establish and maintain a system for collecting information about all of the suspected adverse effects on human health of these products.

Should any of these economic operators consider or have reason to believe that electronic cigarettes or refill containers, which are in their possession and are intended to be placed on the market or are placed on the market, are not safe or are not of good quality or are otherwise not in conformity with this Directive, that economic operator shall immediately take the corrective action necessary to bring the product concerned into conformity with this Directive, to withdraw or to recall it, as appropriate. In such cases the economic operator shall also be required to immediately inform the market surveillance authorities of the Member States in which the product is made available or is intended to be made available, giving details, in particular, of the risk to human health and safety and of any corrective action taken, and of the results of such corrective action.

Member States may also request additional information from the economic operators, for example on the safety and quality aspects or any adverse effects of electronic cigarettes or refill containers.

10. The Commission shall submit a report to the European Parliament and the Council on the potential risks to public health associated with the use of refillable electronic cigarettes by 20 May 2016 and whenever appropriate thereafter.

11. In the case of electronic cigarettes and refill containers that comply with the requirements of this Article, where a competent authority ascertains or has reasonable grounds to believe that specific electronic cigarettes or refill containers, or a type of electronic cigarette or refill container, could present a serious risk to human health, it may take appropriate provisional measures. It shall immediately inform the Commission and the competent authorities of other Member States of the measures taken and shall communicate any supporting data. The Commission shall determine, as soon as possible after having received that information, whether the provisional measure is justified. The Commission shall inform the Member State concerned of its conclusions to enable the Member State to take appropriate follow-up measures.

Where, in application of the first subparagraph of this paragraph, the placing on the market of specific electronic cigarettes or refill containers, or a type of electronic cigarette or refill container has been prohibited on duly justified grounds in at least three Member States, the Commission shall be empowered to adopt delegated acts in accordance with Article 27 to extend such a prohibition to all Member States, if such an extension is justified and proportionate.

12. The Commission shall be empowered to adopt delegated acts in accordance with Article 27 to adapt the wording of the health warning in paragraph 4(b) of this Article. When adapting that health warning, the Commission shall ensure that it is factual.

13. The Commission shall, by means of an implementing act, lay down a common format for the notification provided for in paragraph 2 and technical standards for the refill mechanism provided for in paragraph 3(g).

These implementing acts shall be adopted in accordance with the examination procedure referred to in Article 25(2).

Article 21 Herbal products for smoking

1. Each unit packet and any outside packaging of herbal products for smoking shall carry the following health warning:

‘Smoking this product damages your health.’

2. The health warning shall be printed on the front and back external surface of the unit packet and on any outside packaging.

3. The health warning shall comply with the requirements set out in Article 9(4). It shall cover 30 % of the area of the corresponding surface of the unit packet and of any outside packaging. That proportion shall be increased to 32 % for Member States with two official languages and to 35 % for Member States with more than two official languages.

4. Unit packets and any outside packaging of herbal products for smoking shall not include any of the elements or features set out in Article 13(1)(a), (b) and (d) and shall not state that the product is free of additives or flavourings.

Article 22 Reporting of ingredients of herbal products for smoking

1. Member States shall require manufacturers and importers of herbal products for smoking to submit to their competent authorities a list of all ingredients, and quantities thereof that are used in the manufacture of such products by brand name and type. Manufacturers or importers shall also inform the competent authorities of the Member States concerned when the composition of a product is modified in a way that affects the information submitted pursuant to this Article. The information required under this Article shall be submitted prior to the placing on the market of a new or modified herbal product for smoking.

2. Member States shall ensure that the information submitted in accordance with paragraph 1 is made publicly available on a website. The Member States shall take the need to protect trade secrets duly into account when making that information publicly available. Economic operators shall specify exactly which information they consider to constitute a trade secret.

(1)

Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) (OJ L 95, 15.4.2010, p. 1).