Health warnings on empty pods and devices without liquid

Anyone placing refillable pod systems on the market in Switzerland usually also sells replacement pods individually: a coil unit with a heating element and an empty tank, without liquid, without nicotine, without a battery. It is filled by the consumer with separately purchased liquid.

For these articles, a question arises that the law does not answer unambiguously: must the packaging carry the statutory health warning?

Why the wording is no help

Art. 14 para. 2 of the Tobacco Products Act (TabPG) exempts the packaging of devices from the health warning requirement where they contain neither tobacco nor liquid. Art. 17 para. 3 TabPG contains an identically worded exemption for the product information.

Both provisions speak of “devices”. Art. 3 let. f TabPG, however, expressly distinguishes within the electronic cigarette between the device and the refill material for that device.

An empty replacement pod can be assigned to either category. It is hardware, contains nothing and is supplied without liquid — which argues for “device”. But it is also a wearing part intended for refilling — which argues for the other interpretation. The outcome determines whether packaging must carry the health warning under Art. 14 para. 1 let. e TabPG and whether product information under Art. 17 must be enclosed.

The reply from the Federal Office of Public Health (FOPH)

As part of the self-monitoring obligation under Art. 25 TabPG, the FOPH, Tobacco Products Team, was asked in August 2026 for an interpretation. The reply:

If the pod or the coil unit is not pre-filled, the exemptions of Art. 14 para. 2 and Art. 17 para. 3 TabPG apply.

Translated from the original German reply.

What is decisive is therefore not whether an article is conceptually a “device” or “refill material”, but a single factual criterion: whether it is pre-filled or not.

What follows from this

For pods and coil units that are not pre-filled, the following applies:

• No health warning under Art. 14 para. 1 TabPG on the packaging.
• As no health warning is to be affixed to the primary packaging, Art. 15 para. 6 TabPG has no application to the outer packaging. Outer cartons, trays and displays also require no health warning.
• No product information under Art. 17 para. 1 and 2 TabPG. This concerns in particular the list of ingredients, contraindications, warnings for risk groups, undesirable effects, information on addictive potential and toxicity, and the contact details.

The following remain unaffected:

• The mandatory particulars under Art. 10 para. 1 let. a to c TabPG. The description of the goods, the company name or the importer registration number (Reversnummer) of the importer and the country of production must still be affixed to both packaging levels.
• The prohibition on sales to minors under Art. 23 TabPG. It attaches to the sales transaction, not to the labelling.

The distinction is narrow

The reply concerns exclusively articles without liquid. Pre-filled pods, disposable devices and refill liquids are not covered — the health warning and information requirements continue to apply to them unchanged.

By analogy, however, all articles that give rise to the same factual situation are covered: empty cartridges, base devices without liquid, starter kits without liquid, and the associated outer and display cartons.

What this means for the design

Anyone who nevertheless affixes the health warning voluntarily — for example as a precaution or because existing artwork is not to be changed — does not have to comply with the minimum areas of 35 per cent or 26.25 cm² respectively under Art. 15 para. 1 and para. 4 TabPG. They are binding only where there is a legal obligation to display the health warning.

It nevertheless remains sensible to follow the design rules of Annex 1 of the Tobacco Products Ordinance (TabPV). If practice changes, the packaging will then be compliant without redesign.

A notice that is not based on Art. 14 TabPG should not be set in a white field with a black frame. This design is reserved for the statutory health warning; an imitation could be misleading.

The reply quoted is an informal interpretation and not a ruling. It does not formally bind the authority and may change if practice changes. For the self-monitoring obligation under Art. 25 TabPG it is suitable as evidence of a diligent enquiry — it should be filed in the packaging dossier together with the question and the reply. This article is compliance information and does not replace legal advice or a binding ruling from the competent authority in an individual case.