Provision of hookah services is a form of stimulating the sale of tobacco products, which is expressly prohibited by law - SC ACC

Due to changes in legislation, hookahs are subject to an absolute ban in restaurant establishments from 11 July 2022, regardless of their composition.

The provision of hookah services prohibited by Article 13 of the Law of Ukraine ‘On Measures to Prevent and Reduce the Use of Tobacco Products and Their Harmful Effects on Public Health’ by restaurant establishments is a promotion of tobacco products within the meaning of Article 16 of the Law, even if the product is not directly advertised.

This was stated by the Administrative Cassation Court within the Supreme Court in a case brought by an LLC against the State Service of Ukraine on Food Safety and Consumer Protection to declare unlawful and cancel the resolution on imposing financial sanctions for providing hookah services in a restaurant.

 In support of its claims, the LLC stated that it did not take actions aimed at promoting the sale of tobacco products and did not sell tobacco, but provided hookah services that were not aimed at creating or maintaining consumer awareness and interest in tobacco products. 

The courts of first and appellate instances, in upholding the claims, proceeded from the fact that Ukraine does not have a complete ban on hookah services. The inspection report and the disputed resolution do not reveal what the defendant considers to be the promotion of tobacco products. Therefore, the conclusions of the State Service of Ukraine on Food Safety and Consumer Protection that the plaintiff violated the ban on promotion of tobacco products are unlawful.

The ACC of the Supreme Court overturned the decisions of the courts of previous instances and issued a new decision to dismiss the claim.

The court stated that on 16 December 2021, the Verkhovna Rada of Ukraine adopted the Law of Ukraine ‘On Amendments to Certain Laws of Ukraine on Protection of Public Health from the Harmful Effects of Tobacco’, which strengthened the fight against the spread of tobacco smoking, alternatives to traditional tobacco smoking, promotion of tobacco products and their use in public places.

Article 13 of the Law of Ukraine ‘On Measures to Prevent and Reduce the Use of Tobacco Products and Their Harmful Effects on Public Health’, as amended, came into force on 11 July 2022 and prohibits smoking, consumption and use of tobacco products, items related to their use, herbal smoking products, e-cigarettes, devices for consuming tobacco products without combustion, hookahs, in particular, in the premises of restaurant establishments.

The introduction of the terms ‘consumption’ and ‘use’ prohibited not only the smoking process, but also all forms of consumption of tobacco products and their substitutes in restaurant establishments.

Hookah tobacco is a specialised type of tobacco that is subject to the same prohibition in restaurant establishments as regular tobacco.

In addition, part 2 of Article 13 of the Law of Ukraine ‘On Measures to Prevent and Reduce the Use of Tobacco Products and Their Harmful Effects on Public Health’ prohibits any use of hookahs in restaurant establishments and other places where a ban is in force.

Along with the prohibition of hookahs in restaurant premises without exception, the provision of hookah services by a restaurant should be considered as a promotion of tobacco products in accordance with Article 16 of the Law, even if the product is not directly advertised.

Thus, the courts of first instance and appellate courts erroneously concluded that the provision of hookah services in a restaurant does not fall under the complete ban established in part 2 of Art. 13 of the Law of Ukraine ‘On Measures to Prevent and Reduce the Use of Tobacco Products and Their Harmful Effects on Public Health’ as amended on 11 July 2022, effectively legalising smoking, consumption and use of tobacco products in such establishments, and had no grounds to declare unlawful and cancel the resolution of the State Service of Ukraine on Food Safety and Consumer Protection imposing financial sanctions on the LLC.

Resolution of the Supreme Court of 20 December 2024 in case No. 320/29317/23 (administrative proceedings No. K/990/24316/24) - https://reyestr.court.gov.ua/Review/123946428.

This and other legal positions of the Supreme Court can be found in the Database of Legal Positions of the Supreme Court - https://lpd.court.gov.ua.