Higher Regional Court (OLG) Hamm on Age Verification in Online Sales

The Higher Regional Court (OLG) Hamm issued a judgment on 3 April 2025 (Case No. 4 U 29/24) a landmark decision on the application of the Youth Protection Act (JuSchG) to the online sale of accessories for e-cigarettes.

The central issue in the legal dispute was whether so-called 'replacement pods' – i.e. cartridges for e-cigarettes not filled with nicotine – are subject to youth protection distribution restrictions and whether age verification is necessary. The OLG Hamm affirmed this explicitly, but permitted an appeal to the Federal Court of Justice (BGH) due to the fundamental significance of the legal questions involved.

What was the dispute about?

The plaintiff, a provider of e-cigarette products, objected to the fact that the defendant sold replacement pods for e-cigarettes via an online marketplace without any age verification to end customers. In the course of a test purchase, the product 'P. 2ml Replacement Pod 2-Pack' was delivered without age verification. The plaintiff considered this to be a breach of § 10 JuSchG and sought an injunction against the defendant, as well as disclosure and reimbursement of costs.

Court's decision

The OLG Hamm upheld the claim in full and confirmed the decision of the lower court with the following key findings:

1. Applicability of JuSchG to accessories:
   The court clarified that components of e-cigarettes – in this case specifically: unfilled replacement pods – are subject to the restrictions of § 10 Abs. 3 and 4 JuSchG. The decisive factor is the objective suitability of the products to be used in connection with nicotine-containing substances. Circumventing statutory provisions through the isolated distribution of accessories is therefore not permitted.
2. Obligation to verify age in online sales:
   Shipment without technical age verification (e.g. via PostIdent procedure or equivalent systems) constitutes a clear breach of youth protection requirements. The court emphasised that mere age queries in the ordering process are not sufficient.
3. Claims for injunction and disclosure:
   The defendant was ordered to cease further sales without age verification and to provide comprehensive disclosure of sales already made. In case of non-compliance, a penalty fine of up to EUR 250,000 or, in the alternative, custodial penalty is threatened.
4. Admission of appeal:
   Due to the fundamental significance of the legal questions raised – in particular regarding the interpretation of § 10 JuSchG with regard to accessory products – the OLG explicitly admitted an appeal to the Federal Court of Justice.

Significance of age verification for online trade in e-cigarettes and accessories

The decision of the OLG Hamm has far-reaching implications for the online distribution of e-cigarettes and their accessories. It makes clear that the legislature places not only the supply of nicotine-containing liquids, but also associated equipment and components within the scope of youth protection under JuSchG. Retailers cannot rely on the fact that the product offered 'in itself' does not contain a substance harmful to young persons if it is objectively designed for the consumption of such substances.

This interpretation corresponds to a functional understanding of youth protection and sends a clear signal to the e-cigarette market and comparable industries (e.g. cannabis accessories in the context of the legalization debate): age verification is indispensable not only for end products, but also for accessories.

Recommendations for action for retailers and platform operators

• Review of product range:
  Providers should review all product categories for their youth protection law relevance – in particular accessory items, refill containers and technical components.
• Implementation of effective age verification systems:
  Age queries in the course of ordering or mere checkboxes are not sufficient. Robust technical systems such as the PostIdent procedure or equivalent electronic age verification solutions are necessary.
• Contractual control for platform sales:
  Anyone who permits third-party providers as a platform operator must ensure that they also act in compliance with youth protection requirements – if necessary through contractual obligations and technical controls.
• Compliance documentation and staff training:
  Internal processes should be documented and employees should be sensitised to handling products relevant to youth protection in order to avoid penalties and competition law warnings.

Conclusion

The decision of the OLG Hamm underscores the central role of youth protection in online commerce and sets new standards for the legal assessment of accessory items. The admission of the appeal by the OLG demonstrates the fundamental significance of the legal question – it is to be expected that the Federal Court of Justice will issue a leading decision.

AVANTCORE Lawyers advises manufacturers, retailers and platform operators on all matters of e-commerce and youth protection law. We offer preventive compliance checks, customised contract drafting and support in implementing legally secure age verification systems.