Pro Rauchfrei sues again for lack of warnings on images on cigarette vending machines – first success in court

05.04.2024  Although Pro Rauchfrei e.V. obtained a landmark ruling from the Federal Court of Justice (BGH, 26 October 2023 – I ZR 176/19) in October last year after more than six years, according to which illustrations of packs must also show health warnings, regrettably nothing has changed in practice apart from a new pack design.

For this reason, Pro Rauchfrei has brought two new proceedings before the Bamberg and Düsseldorf Higher Regional Courts. The first case concerns digital vending machines from the tegut retail chain, while the case pending in Düsseldorf is directed against tobaccoland, a well-known vending machine operator in Germany. The latter operates classic street vending machines.

In an initial decision in favour of Pro Rauchfrei, the Bamberg Higher Regional Court (decision of 26.02.2024, 3 UKl 4/24 e) finds clear words for disregarding the BGH decision:

Since the above-mentioned judgement of the Federal Court of Justice was handed down, there has been legal clarity for the retail chains that use such vending machines and were therefore affected as providers, with the result that they have positive knowledge that they must promptly adapt their offer in accordance with the requirements of the Federal Court of Justice. However, the defendant failed to do so. The infringement situation thus presents itself in a different, increased quality than before, because the defendant is now ignoring a clear legal requirement with positive knowledge of the illegality of its actions. In the present case, urgency must therefore be linked not only to the knowledge of an infringement as such, but also to the knowledge of the failure to make the changeover that has been mandatory since 26 October 2023.

Chairman Stephan Weinberger explains:

In the proceedings now pending, the other side is trying to obtain a favourable decision for itself with a large number of expert opinions and documents that have already been submitted in the BGH proceedings. We see this as an act of desperation.

The oral hearing in the tobaccoland case will take place on 9 April. For the first time, the new design of the illustrations will be discussed, which, in the opinion of the tobacco industry, should no longer mean that warnings have to be visible on them. Weinberger counters:

The new buttons are still designed like cigarette packets in terms of brand logo, proportions, colouring and dimensions and may remind the customer of a cigarette packet. Warning notices must therefore also be affixed. If necessary, we will have this clarified again in legal proceedings through the courts.

In order to see related documents, please visit the German version. The documents are not translated into English.