Herbal cigarettes not containing tobacco or nicotine are subject to excise duty as are ordinary cigarettes. This is due to the interpretation of the National Tax Information Director at 12 December 2017 The signature. 0111-KDIB3-3.4013.226.2017.1.MK.
The applicant for interpretation intends to create a product intended to help quit smoking. His product is tobacco-free and nicotine-free. Instead of tobacco, a mixture of mint, persica, etc. will be used.
The applicant submitted its own claim that such a product is not subject to excise duty because it does not contain nicotine and has medical properties (helps to quit smoking).
The statutory definition of tobacco and cigarettes in the Excise Tax Act is more complicated than it might seem. It is also necessary to include EU directives.
A key aspect of interpretation was the possibility of considering herbal cigarettes as a medical product.
According to the Excise Tax Act, non-smoking products are also considered to be cigarettes unless they are used solely for medical purposes.
The applicant sought to highlight the potential medical advantages of the product, however, the Director of National Tax Information considered that there were insufficient grounds for determining this product as a medicinal product:
„the medicinal activity of the products concerned must not result, inter alia, from the subjective conviction of the seller of such products, but should be adequately verified and documented by the relevant operators in such matters."
The Authority also stressed that tobacco-free products may be taxed on excise duties:
„The determining feature of the product, resulting in excise duty, is the possibility of smoking without further processing, whether or not the products contain tobacco(...)’