In two judgments of 14 April 2026, the Federal Supreme Court (the Court) dismissed the appeals of two distributors of disposable e-cigarettes against decisions of the Consumer and Veterinary Affairs Service (Service de la consommation et des affaires vétérinaires of the Canton of Geneva, SCAV), prohibiting the marketing of several disposable e-cigarette products and ordering their recall, on the grounds that their reservoirs exceeded the 2 ml limit under art. 9 para. b of the Federal Act of 1 October 2021 on Tobacco Products and Electronic Cigarettes (TobPA), which entered into force on 1 October 2024.

The central legal question in both cases concerned the interpretation of art. 9 para. b TobPA, which provides that the volume of nicotine-containing liquids must not exceed 2 ml per disposable e-cigarette or single-use cartridge. The French and Italian versions of the provision refer to the volume of the liquid itself, whereas the German version refers to the volume of the reservoir (Behälter) intended to contain such liquid. The Court resolved this divergence by reference to legislative history and the EU law alignment purpose of the provision. Art. 9 TobPA was adopted to harmonise Swiss law with Directive 2014/40/EU, which unambiguously limits the volume of the reservoir ("Tank") of disposable e-cigarettes to 2 ml. Against this backdrop, the Court held that the French and Italian texts reflected a mere drafting inadvertence, and that the German version was authoritative: Art. 9 para. b TobPA prohibits the placing on the market of disposable e-cigarettes with a reservoir exceeding 2 ml, regardless of the actual quantity of liquid contained therein.

Details of Decision 2C_353/2025: The distributor argued that its ISOK X and ISOK NEOS products were compliant with the law because they contained no more than 2 ml of nicotine liquid, absorbed into a cotton element. The Court rejected this argument. The concept of "reservoir" refers to the space designed to store the liquid to be inhaled, whether or not a cotton element is inserted; the cotton cannot be equated with the reservoir, as its volume is neither fixed nor easily measurable. The measured volumes of the reservoir were 3.5 ml and 4.3 ml, respectively, rendering the products non-compliant. The Court also rejected the argument that the TobPA contained a genuine legal gap with respect to cotton-equipped devices, finding that the legislator had consciously adopted the EU-aligned 2 ml reservoir limit with full awareness that it might not reflect the latest technological developments.

Details of Decision 2C_492/2025: The distributor contested the classification of its LOST MARY BM6000 and ELFBAR AF5000 products as "disposable" e-cigarettes, arguing that their rechargeable batteries and refillable cartridges made them reusable devices not subject to the 2 ml limit. The Court left open whether these products qualified as "disposable" within the meaning of art. 9 para. b TobPA, finding this question unnecessary to decide. Independently of that classification, art. 9 TobPA exhaustively regulates the permissible containers for nicotine-containing liquids: such liquid may only be placed on the market either in standalone refill containers of up to 10 ml (art. 9 para. a) or pre-filled in disposable e-cigarettes or single-use cartridges with a reservoir of at most 2 ml (art. 9 para. b). No other mode of supply is admissible. The products in question were designed with a 2 ml base reservoir permanently connected to an integrated 10 ml cartridge, giving a total pre-filled reservoir capacity of 12 ml, which exceeded the permissible limits under any reading of art. 9 TobPA. The Court further rejected the argument that the products could be placed on the Swiss market pursuant to the "Cassis de Dijon" principle under the Federal Act of 6 October 1995 on Technical Barriers to Trade (TBA), as there was no evidence that the products were lawfully marketed in any EU or EEA member state.

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