The European Commission considers that France’s controversial ban on nicotine pouches is compatible with EU law. This is clear from a response from Health Commissioner Olivér Várhelyi, following calls from Swedish MEPs for the Commission to take action against the French rules.
When France introduced a ban on the sale, possession and transport of nicotine pouches earlier this year, the decision drew strong criticism from Sweden. Both Swedish MEP and Minister for Foreign Trade Benjamin Dousa has questioned whether the ban is compatible with the free movement of persons within the EU.
However, according to the Commission’s reply, there are currently no grounds for taking action against France.
– “The Commission’s assessment is that the French legislation is both justified and proportionate in relation to the objective of protecting the life and health of the population, and of minors in particular,” writes Health Commissioner Olivér Várhelyi in his reply.
Member States have considerable scope for action
Várhelyi points out that nicotine pouches are not yet covered by any harmonised EU legislation. Member States therefore have considerable scope to introduce national rules if they are deemed necessary to protect public health.
He refers both to Article 36 of the TFEU and to the case law of the Court of Justice of the European Union concerning Member States’ right to determine for themselves the level of protection they wish to provide for human health.
Reiterates criticism of nicotine pouches
In his reply, the Commissioner also reiterates the position previously put forward by the Commission ahead of the forthcoming review of EU tobacco regulations.
– New tobacco and nicotine products, such as nicotine pouches, pose serious health risks and represent a major public health problem, writes Várhelyi, referring to the Commission’s evaluation of the EU’s tobacco control framework.
The wording has previously criticised by both researchers and Swedish policymakers, which argues that it does not distinguish between the risk levels of different nicotine products.
No news on future regulations
At the same time, the Commission has not provided any guidance on how nicotine pouches will be regulated at EU level in future.
Várhelyi writes that the Commission is now continuing its work on impact assessments and consultations ahead of the forthcoming review of EU tobacco legislation.
– “It would be too early to speculate on the content of the forthcoming review of EU tobacco control legislation,” he writes.
However, the response is unlikely to reassure the Swedish MPs who have previously called on both Commission President Ursula von der Leyen and European Parliament President Roberta Metsola to take action against France’s ban.
This is what has happened with white snus in France:
- Earlier this year, France decided to ban the sale, possession and transport of nicotine pouches.
- The French decision does not mean that a completely new law is being introduced. Instead, this is a matter of applying existing French legislation, under which nicotine products not covered by specific national or European regulations may not be sold. As nicotine pouches are not currently covered by any harmonised EU legislation or any specific French regulations, they have therefore been banned.
- Sweden has criticised the decision, arguing that it risks contravening EU rules on the free movement of goods. The issue has been raised by several Swedish MEPs and by the Minister for Foreign Trade, Benjamin Dousa.
- The European Commission now considers that France’s rules can be justified on public health grounds as long as there is no common EU legislation on nicotine pouches.
