Draft Act amending the Act (2018:2088) on Tobacco and Similar Products

Current wording Proposed wording

Chapter 2

Electronic cigarettes and refill containers Ban on flavouring § 6 a Liquids intended for consumption through electronic cigarettes may not be made available to consumers on the market if the liquids contain additives that lead to a clearly appreciable aroma or taste of something other than tobacco.
Swedish Code of Statutes

Act
amending the Act (2018:2088) on Tobacco and Similar Products

Issued on 30 June 2022

In accordance with the Riksdag decision, the following is laid down with respect to the Act (2018:2088) on Tobacco and Similar Products:

the current Chapter 5, Sections 14-21 shall become Chapter 5, Sections 13-20;

Chapter 1, Sections 2 and 3, Chapter 4, Sections 1-4 and 8, Chapter 5, Sections 1, 3 and the new Sections 14, 16-18, Chapter 6, Section 1, Chapter 7, Sections 3-5, 8 and 10, Chapter 8, Section 2, Chapter 10, Sections 2 and 4, Chapter 11, Sections 6, 12 and 13 and the heading of Chapter 4, shall read as follows;

the heading immediately before Chapter 8, Section 5, shall read ‘Fee for product notification and reported data’;

the headings immediately before Chapter 5, Sections 14-18 and 21 shall be placed immediately before Chapter 5, Sections 13-17 and 20, respectively;

four new sections, Chapter 4, Sections 9-11 and Chapter 8, Section 6 shall be inserted, and immediately before Chapter 4, Section 11, a new heading as follows.

Chapter 1

Section 2    This Act contains provisions on tobacco, electronic cigarettes and refill containers, herbal products for smoking and on the use of other products corresponding to smoking in the way they are used but not containing tobacco. The Act also contains provisions on nicotine-free liquids intended to be consumed through electronic cigarettes.

The Act contains provisions on:

– product requirements and reporting obligations (Chapter 2);

– labelling and packaging (Chapter 3);

– marketing of tobacco products, electronic cigarettes and refill containers (Chapter 4);

– trade (Chapter 5);

– smoke-free environments (Chapter 6);

– supervision (Chapter 7);

– fees (Chapter 8);

– appeals (Chapter 9);

– penalties and forfeiture (Chapter 10); and

– authorisations (Chapter 11).

Section 3    For the purposes of this Act, the following definitions shall apply:

1. electronic cigarette: a product that can be used for the consumption of nicotine vapour via a mouthpiece, or any component of that product, including a cartridge, a tank and the device without a cartridge or a tank;

2. refill container: a receptacle that contains a nicotine-containing liquid, which can be used to refill an electronic cigarette;

3. herbal product for smoking: a product based on plants, herbs or fruits which contains no tobacco and can be consumed via a combustion process;

4. retail trade: sales to consumers;

5. wholesale trade: sales other than retail;

6. point of sale: a physical point of sale or a retail website;

7. physical point of sale: specific premises or other delimited space for retail;

8. sponsorship: any form of public or private contribution to an event, activity or person with the objective, or direct or indirect effect, of promoting a good or product;

9. cross-border distance sales: sales where, at the time the good or product is ordered, the consumer is in Sweden and the retail outlet is in another country, or the retail outlet is in Sweden and the consumer is in another Member State;

10. Member State: a State which is a member of the European Union or another State covered by the Agreement on the European Economic Area (EEA) which has transposed into national law the provisions of Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products and repealing Directive 2001/37/EC.

Chapter 4 Marketing of tobacco products, electronic cigarettes and refill containers

Section 1    The marketing of tobacco products to consumers is prohibited.

However, the prohibition imposed in the first paragraph does not apply to information in:

1. periodicals or other comparable publications to which the Freedom of the Press Act applies, except in the case of commercial advertisements;

2. other printed matter to which the Freedom of the Press Act applies;

3. television broadcasts, on-demand television or sound broadcasts, except in the case of commercial advertisements; or

4. other transmissions or technical recordings to which the Fundamental Law on Freedom of Expression applies.

Section 2    Inside physical points of sale, it is permitted to use commercial communications for tobacco products that are not insistent, outreaching or encourage the use tobacco. Such commercial communications shall, to the extent possible, be placed in such a way that they are not visible from outside the point of sale.

Section 3    It is prohibited to market electronic cigarettes or refill containers to consumers by means of commercial communications in:

1. periodicals or other comparable publications to which the Freedom of the Press Regulations apply;

2. information society services; and

3. television broadcasts, on-demand television or sound broadcasts.

The first paragraph does not apply to information to which the Freedom of the Press Act or the Fundamental Law on Freedom of Expression applies, except in the case of commercial advertisements.

Section 4    Inside physical points of sale, it is permitted to use commercial communications for electronic cigarettes and refill containers that are not insistent, outreaching or encourage the use of such products.

Section 8    Sponsorship promoting tobacco products, electronic cigarettes or refill containers is prohibited if it is likely to have cross-border effects.

Section 9    Manufacturers, wholesalers and importers may not sponsor national events or activities to which the public has access if the sponsorship promotes tobacco products, electronic cigarettes or refill containers.

Section 10    Provisions prohibiting sponsorship on the radio, TV and on video-sharing platforms and product placement on TV and on video-sharing platforms are laid down in the Radio and Television Act (2010:696).

Additional provisions on marketing

Section 11    The provisions of the Marketing Act (2008:486) shall apply to marketing that is contrary to any one of Sections 1-9 in the case of:

1. supervision by the Swedish Consumer Agency pursuant to Chapter 7, Section 8; or

2. an action brought by a businessman or association within the meaning of Section 47(2) and (3) of the Marketing Act.

When applying Sections 5, 23 and 26 of the Marketing Act, a marketing measure that is contrary to any one of Sections 1-9 or Chapter 3, Section 3 or 4 shall be deemed undue to consumers. A marketing measure that is contrary to Section 1, first paragraph, and is carried out in a medium referred to in the first paragraph, point 3 or 4, or is contrary to Section 3, first paragraph, point 1 or 3, or Section 5, point 2 or 3, may give rise to a market disruption fine in accordance with the provisions of Sections 29-36 of the Marketing Act.

Chapter 5

§ 18 Tobacco products, electronic cigarettes and refill containers may not be sold or otherwise supplied in the course of trade to persons under the age of 18. Persons supplying such goods or products shall ensure that the recipient has reached the specified age. If there is specific reason to assume that goods or products are intended to be given to someone who is not at least 18 years of age, they must not be supplied. § 17 Tobacco products, electronic cigarettes and refill containers may not be sold or otherwise supplied in the course of trade to persons under the age of 18. Persons supplying such goods or products shall ensure that the recipient has reached this age. If there is specific reason to assume that goods or products are intended to be given to someone who is not at least 18 years of age, they must not be supplied. At points of sale, there must be a clear and visible sign informing of the ban on selling or supplying the goods or products referred to in the first paragraph to persons under the age of 18. At points of sale, there must be a clear and visible notice informing of the ban on selling or supplying the goods or products referred to in the first paragraph to persons under the age of 18.
Section 1    Only permit holders may engage in retail or wholesale trade of tobacco products.

A permit is not required for retailers or wholesalers who have neither their registered office nor a permanent establishment for business activities in Sweden.

Permits may be valid for a certain period of time or until further notice. If the person applying for a permit intends to engage in retail from a physical point of sale, the permit shall relate to that point of sale.

Section 3    Applications for permits shall be made in writing.

Permits for retail trade will be issued by the municipality in which the point of sale is located. In the absence of a physical point of sale, a permit will be granted by the municipality in which the company wishing to engage in such trade has its registered office or, in the absence of a registered office in the country, by the municipality in which the company has a permanent establishment.

Permits for wholesale trade will be issued by the municipality in which the company wishing to engage in such trade has its registered office, or in the absence of a registered office in the country, by the municipality in which the company has a permanent establishment.

Section 14    A trader who has his registered office or permanent establishment in Sweden may not engage in the retail of electronic cigarettes or refill containers without prior notification of the sale.

The notification shall be made to the municipality where the physical point of sale is located. In the absence of a physical point of sale, the notification shall be made to the municipality in which the company has its registered office or, in the absence of a registered office in the country, to the municipality in which the company has a permanent establishment.

Section 16    Persons conducting sales under Section 14 or 15 shall exercise self-monitoring with respect to the sale and other handling of electronic cigarettes and refill containers and ensure that there is an appropriate self-monitoring programme.

The notification of sales in accordance with Section 14 or registration in accordance with Section 15 shall be accompanied by the self-monitoring programme and other information needed for supervision by the municipality and the Public Health Agency of Sweden. Any change to such information shall be notified to the municipality or the Public Health Agency of Sweden without delay.

Section 17    Tobacco products, electronic cigarettes and refill containers may not be sold or otherwise supplied in the course of trade to persons under the age of 18. Persons supplying such goods or products shall ensure that the recipient has reached this age.

If there is specific reason to assume that goods or products are intended to be given to someone who is not at least 18 years of age, they must not be supplied.

At points of sale, there must be a clear and visible notice informing of the ban on selling or supplying the goods or products referred to in the first paragraph to persons under the age of 18.

Section 18    Tobacco, electronic cigarettes and refill containers sold to consumers shall be offered in such a way that it is possible to check the age of the recipient. This shall also apply where the sale takes place through a vending machine, by means of distance selling or in a similar way.

Chapter 6

Section 1    For the purposes of this chapter, smoking shall mean:

1. smoking of tobacco;

2. inhalation after vaporisation or other heating of tobacco;

3. use of electronic cigarettes;

4. use of herbal products for smoking; and

5. use of other products corresponding to smoking in the way they are used but not containing tobacco.

Chapter 7

Section 3    The municipality shall exercise supervision to ensure that this Act and related regulations are followed in respect of:

1. the prohibition on the supply of flavoured liquids in accordance with Chapter 2, Section 6a, at physical points of sale;

2. health warnings, product presentation and identification and safety markings in accordance with Chapter 3, Sections 1, 3, 4, and 7, at physical points of sale;

3. supply of electronic cigarettes and refill containers in accordance with Chapter 2, Sections 7 to 9 and Chapter 3, Sections 2, 5, and 6, at physical points of sale;

4. marketing in accordance with Chapter 4, Sections 1, 2, and 4 to 7 with respect to marketing measures at or in connection with physical points of sale; and

5. smoke-free environments referred to in Chapter 6, Section 2 and not provided solely for staff and premises referred to in Chapter 6, Section 3.

Section 4    The municipality and the Police Authority shall exercise supervision to ensure that this Act and related regulations are followed in respect of:

1. supply of novel tobacco products in accordance with Chapter 2, Section 3, at physical points of sale;

2. sale of tobacco products in cases other than those which involve cross-border distance sales in accordance with Chapter 5, Sections 1, 6 to 10, 12, and 13;

3. notification of sales of electronic cigarettes and refill containers as well as self-monitoring, in cases other than cross-border distance sales, in accordance with Chapter 5, Sections 14 and 16; and

4. an age limit in accordance with Chapter 5, Sections 17 and 18.

Section 5    The Public Health Agency of Sweden shall exercise supervision to ensure that this Act and related regulations are followed in respect of:

1. product requirements and reporting obligation, in cases other than those referred to in Section 4, in accordance with Chapter 2, Section 1, first and second paragraphs, and Chapter 2, Sections 2 to 11;

2. prohibition on flavourings, in cases other than those referred to in Section 3, in accordance with Chapter 2, Section 6a;

3. health warnings, product presentation and accompanying information, in cases other than those referred to in Section 3, in accordance with Chapter 3, Sections 1 to 6;

4. registration in accordance with Chapter 5, Sections 5 and 15, in the case of cross-border distance sales and self-monitoring in accordance with Chapter 5, Sections 6, 7 and 16, in the case of such cross-border distance sales; and

5. prohibition on manufacture or import as referred to in regulations issued on the basis of Chapter 11, Section 5.

Section 8    The Swedish Consumer Agency shall exercise supervision to ensure that this Act and related regulations are followed in respect of marketing, in cases other than those referred to in Section 3, in accordance with Chapter 4, Sections 1 to 9.