OLG Hamm: Online retailers are not obliged to verify their age
E-cigarette dealers can sell nicotine-free "gummy bear flavor" to children, even if it can be used for e-cigarettes and e-shisha. When selling such flavors, online retailers do not have to carry out age verification, the Higher Regional Court (OLG) Hamm decided in a judgment announced on Thursday, April 27, 2017 (file number: 4 U 162/16).
In this specific case, an online retailer from the Westphalian town of Bünde had offered numerous “liquids” in addition to e-cigarettes, which are vaporized when smoking e-cigarettes and e-shishas. He also sold numerous flavors such as the nicotine-free "Aroma Gummy Bear". According to the description, this was not only suitable for flavoring the liquids; the gummy bear aroma can also refine drinks or be used in cooking and baking.
A competitor from Lünen complained that no age verification was carried out on the internet platform when the gummy bear flavor was sold. According to the Youth Protection Act, e-cigarettes and their accessories are only allowed to be sold and shipped after an age verification. This also applies to refill containers for flavorings.
The defendant company, on the other hand, believed that commercially available food flavors could be sold without age restrictions.
The OLG Hamm also followed this in its judgment of March 7, 2017. According to the Youth Protection Act, products containing nicotine and their containers should not be sold to children and young people by mail order. According to the symptoms of the law, this included e-cigarettes and e-shishas, as well as the so-called e-liquids, but not nicotine-free flavorings. The OLG has approved the revision to the Federal Court of Justice in Karlsruhe.