We learn via the official website of lawyer Thierry Vallat that the Delaunay amendment which we had discussed in a previous article was rejected by the Senate.
The question of advertising e-cigarettes and vaping products has just rebounded with the adoption by senators of the Sapin 2 bill of July 8, 2016. It will be recalled that amendment n ° 957 had been adopted. presented by Michelle Delaunay and 7 other deputies as part of the examination in the National Assembly of this Sapin 2 bill relating to transparency, the fight against corruption and the modernization of economic life.
The purpose of this amendment is to make it possible to advertise in e-cigarette shops and to allow the display of vape products in shop windows.
Directive n ° 2014/40 / EU of 3 April 2014 relating to tobacco products and related products in fact provided for in the fifth point of its article 20 the prohibition in the majority of the media (radio, television, internet, press , sponsorship) of direct and indirect advertising for electronic vaping devices and associated refill bottles that contain nicotine (read: The CJEU validates the Tobacco Directive and the specific regulation of…)
Only the support for "display", as it is the sole responsibility of the Member States, and the media for the professional organizations concerned, in that they are necessary for the exercise of this trade and have no impact on the general public, are not concerned by this European text. In addition, advertising remains authorized at the point of sale.
The January 26 2016 law of modernization of our health system has recently transposed Article 23 of the Tobacco Directive to its article 20. However, writing the article transposed, because 
that it was merged with the prohibition of advertising for tobacco products, renders the prohibition disproportionate and probably contrary to the intention of the legislator.
Indeed, given the extensive notion of "advertising" in the case law, establishments marketing vaping products can no longer have a name in relation to the products they sell, or display their products in the shop window. As a result, consumers can no longer know from outside the outlets what is sold there. This situation is all the more disproportionate as, in the case of tobacco products, retailers have the option of putting a "carrot" type sign that refers to tobacco.
The purpose of amendment 957 is therefore to make the wording of Article L. 3513-4 of the Public Health Code more flexible in order to allow vaping products stores to be able to refer to vaping products on their teaches, and to be able to display their products without advertising in their windows. It also provides for the size of advertising posters authorized in points of sale to be defined in a decree for greater clarity.
Adopted by the deputies 10 June 2016, he thus added a new article 54 sexies to the law Sapin 2 with an article L. 3513-4 of the code of the health thus written ;
“Propaganda or advertising, direct or indirect, in favor of vaping products is prohibited.
“These provisions do not apply:
"1 ° To publications and online communication services published by professional organizations of producers, manufacturers and distributors of vaping products, reserved for their members, nor to specialized professional publications, the list of which is established by ministerial decree signed by the ministers in charge health and communication; nor to professionally edited online communication services which are only accessible to professionals in the production, manufacture and distribution of vaping products;
“2 ° To printed and edited publications and online communication services made available to the public by persons established in a country not belonging to the European Union or the European Economic Area, when these publications and communication services online communication is not primarily intended for the community market;
“3 ° Posters relating to vaping products, placed inside establishments marketing them and not visible from the outside, the maximum format of which is fixed by decree.
"4" The commercial sign affixed to the facade of establishments marketing vaping products;
"5 ° To vaping products displayed in shop windows, provided that they are not accompanied by posters, signs or any other advertising object. ".
“Any sponsorship or patronage operation is prohibited when its object or effect is propaganda or direct or indirect advertising in favor of vaping products. "
And the Delaunay amendment, so important for a vaping sector that was badly damaged after the transposition texts published on May 19, 2016 (Vaping: the regulation of electronic cigarettes resulting from the ...) was retested by the Senate which purely deleted and simply article 54 sexies of the bill which will therefore now have to go through the Joint Committee responsible for finding a compromise text.
Nothing has yet been decided to date, especially since the preparation of the application decrees is underway and a ministerial working group set up following the " 1er top of the vape ”Which was held at the beginning of May 2016 in Paris began its work on July 7 and will resume it next September, in order to define the implementing regulations to come.
Source : Thierry Vallat
