The e-cigarette industry and the government are waging a "legal war." The Ministry of Economy and Finance filed complaints against companies that made liquid products without a tobacco manufacturing license, and one company has been sent to the prosecution. In response, the industry is fighting back with a constitutional complaint and a request for an injunction to suspend the regulation's effect. This erupted as the revised Tobacco Business Act, which regulates synthetic nicotine liquid e-cigarettes just like conventional cigarettes, took effect. ChosunBiz looked into what is going on on the 16th.

A view of a smoking area near Seoul Station. /Courtesy of News1

◇ Government regulates liquid e-cigarettes using nicotine as a raw material vs. industry says "RS nicotine is not included"

The revised Tobacco Business Act began to apply at the end of April. Until now, only "tobacco leaves" were defined as raw materials for cigarettes, but the scope has expanded to "tobacco or nicotine."

As a result, synthetic nicotine liquid e-cigarette products also came under regulation. In addition to having to pay tobacco-related taxes and charges, those who make or sell tobacco without government approval are now subject to punishment.

The government is taking a hard line. In May, the ministry asked police to investigate three companies on suspicions including selling high-concentration nicotine solution products online. Currently, one of the three companies has been sent to the prosecution. However, another received a "no charges" disposition. Police are still investigating the remaining one.

Amid this, some e-cigarette companies argue, "The nicotine we use as a raw material is a different substance from the nicotine that the Tobacco Business Act targets for regulation." Nicotine is divided into "S-type nicotine" and "R-type nicotine," depending on molecular arrangement. Recently, companies selling products using so-called "RS nicotine," in which R-type and S-type coexist, have emerged. They argue RS nicotine is a different substance from the "nicotine" regulated by the revised Tobacco Business Act and therefore is not subject to sanctions.

A draft partial amendment to the Enforcement Decree of the Tobacco Business Act, publicly notified for legislation from Jun. 25 to Aug. 4. It states, "We intend to define the chemical meaning of nicotine based on molecular formula and bonding structure, and to clarify that its optical isomers and mixtures, salts, and complexes are included, in order to prevent confusion in law enforcement." /Courtesy of Ministry of Government Legislation National Participation Legislation Center

◇ Legal war spreads from the Tobacco Business Act to the enforcement decree

The legal war between the e-cigarette industry and the government is spreading beyond the Tobacco Business Act to its enforcement decree. The ministry has given advance notice of legislation for an enforcement decree that specifies RS nicotine is also subject to sanctions. The enforcement decree even includes the chemical formula for nicotine (C10H14N2).

A ministry official said, "Because nicotine is a chemical concept, the law can be applied even without a separate definition," and added, "Revising the enforcement decree is not about creating a new regulatory target but about clarifying the scope to eliminate confusion in law enforcement." The government sees the industry as trying to evade regulation by invoking RS nicotine.

A view of an e-cigarette store in Seoul on Jun. 23. /Courtesy of News1

The industry pushed back. Groups including the Korea Electronic Liquid Safety Association submitted opposition, saying, "Expanding the scope of 'nicotine' in the enforcement decree without delegation from the law exceeds the limits of delegated legislation." Because whether something is "tobacco" determines taxes, manufacturing permits, and criminal penalties, it should be set by law, not by enforcement decree, they said. The industry also asked the Ministry of Government Legislation to interpret the legal definition of nicotine under the Tobacco Business Act.

Earlier, the industry filed a constitutional complaint with the Constitutional Court last month targeting the definition of tobacco under the Tobacco Business Act and provisions on manufacturing permits and punishment, and also applied for an injunction to suspend the effect. A legal source explained, "If RS nicotine, which is not clearly stipulated in the law, is interpreted as tobacco and punished as unlicensed manufacturing, that would run counter to the principle of clarity under the constitutional principle of nulla poena sine lege." The source added, "In that companies not previously subject to the Tobacco Business Act would newly come under regulation, the freedom of business or infringement of property rights could also become issues."

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