Nicotine sachets: sales remain prohibited despite a partial suspension of the decree

By an order issued on December 22, 2025, the Council of State, ruling in summary proceedings pursuant to Article L. 521-1 of the Code of Administrative Justice, partially suspended the implementation of Decree No. 2025-898 of September 5, 2025, concerning oral products containing nicotine. This decision follows an appeal filed by the company EVLB, focusing exclusively on the prohibition of the manufacture, production, and export of these products. It should be noted that the appeal did not target the prohibition of offering, transferring, acquiring, or using nicotine products for oral use within the national territory. Consequently, the order of the judge in summary proceedings does not concern the marketing or use of these products in France, which remain prohibited.

A suspension based on the conditions for the entry into force of the decree

To order the partial suspension of the decree of September 5, 2025, the judge of the summary proceedings division of the Council of State relied exclusively on the conditions of its entry into force, and more specifically on the time allowed for economic operators to adapt to the ban on the manufacture, production, and export of nicotine products for oral use. Pursuant to Article L. 521-1 of the Code of Administrative Justice, the judge examined, firstly, the existence of an emergency situation and, secondly, the existence of grounds capable of creating serious doubt as to the legality of the decree on this specific point.

Regarding the urgency of the situation, the Council of State noted that the applicant company had, until the decree was issued, been engaged in lawful production and export activities, primarily targeting foreign markets. It considered that the immediate prohibition of these activities, without a sufficient period for adaptation, was likely to cause serious and immediate harm to the company's economic situation, particularly with regard to investments made, recruitment undertaken, and contractual commitments already entered into. This assessment is based solely on the economic and organizational consequences of the timetable adopted by the regulatory authority, regardless of any consideration of the harmfulness or usefulness of the products concerned.

On the second criterion, the judge in chambers considered that the timeframe stipulated by the decree, with an entry into force set for April 1, 2026, could be deemed insufficient to allow the companies concerned to reorganize their operations or, where appropriate, relocate their production. This element alone appeared, based on the current state of the investigation, to raise serious doubts as to the legality of the decree, solely insofar as it prohibits the manufacture, production, and export of oral products containing nicotine.

This analysis is strictly limited to the question of the entry into force and in no way prejudges the outcome of the substantive appeal. The Council of State did not examine the other arguments raised, particularly those relating to freedom of trade and industry, the free movement of goods, or the proportionality of the measure with regard to public health objectives. The suspension thus imposed is provisional and procedural in nature, pending a final decision on the legality of the decree.

A legal analysis confirming the status of nicotine and consistent with the approach advocated by the CNCT

The ruling issued by the Council of State makes a substantial legal contribution by explicitly reiterating the framework applicable to nicotine under the Public Health Code. The judge in summary proceedings confirms that nicotine is classified as a poisonous substance and that, apart from the strictly defined exemptions for medications, tobacco products, and vaping devices, products containing nicotine fall under the general law applicable to substances posing a health risk.

The Council of State thus reiterates that the provision of nicotine products can only be legal if the specific requirements for medicines are met, including, in particular, pharmaceutical oversight and strict dispensing procedures. This analysis is consistent with the law applicable prior to the decree of September 5, 2025, and does not constitute a new regulatory creation.

This interpretation aligns perfectly with that defended by the National Committee Against Smoking (CNCT) in its legal actions, according to which the marketing of nicotine sachets, under the conditions currently observed on the market, is prohibited under French law and was already so before the decree. In this respect, the ordinance confirms that the decree of September 5, 2025, did not establish a ban ex nihilo, but rather clarified and strengthened an existing legal framework based on the protection of public health.

A ban on sales that remains fully in effect

The ruling by the Council of State does not in any way call into question the ban applicable to the sale of nicotine products for oral use within the national territory. The judge in summary proceedings expressly specifies that the suspension imposed concerns only the manufacturing, production, and export activities, and that it does not extend to the offering, transfer, acquisition, or use of these products. These various operations therefore remain strictly prohibited under French law.

This decision establishes that the ban on the sale of nicotine sachets is not a direct and exclusive consequence of the contested decree, but rather falls within a pre-existing legal framework that was already fully applicable before its entry into force. Any interpretation of the order as a challenge, even partial, to the ban on the sale of nicotine products for oral use is therefore legally unfounded.

The decision thus confirms that the placing on the market, distribution and use of these products remain prohibited on the national territory, including during the period of partial suspension of the decree relating to the manufacture, production and export.

A risk of overinterpretation and misinformation

The strictly limited scope of this interim order, however, exposes it to a risk of overinterpretation in the public debate. Some economic actors might be tempted to present this decision as a challenge to the very principle of the ban on nicotine sachets, whereas it only concerns the conditions for the entry into force of the ban on their manufacture, production, and export. Such an interpretation would be legally inaccurate and constitute a form of misinformation, as it would obscure both the full maintenance of the sales ban and the explicit confirmation of nicotine's status as a poisonous substance.

This risk is all the more pronounced given that, throughout 2025, certain manufacturers and distribution networks, particularly tobacconists, were especially active in challenging the ban on these products, even though nicotine sachets were already being sold in France outside of any legal framework. The mobilization of these stakeholders against the decree of September 5, 2025, thus developed in a context where the sale of these products was already occurring illegally, which increases the risk of the State Council's ruling being exploited for misleading communication. The State Council has not validated any health-related arguments nor recognized the legality of these products; any communication suggesting otherwise would constitute an abusive interpretation of a provisional and strictly procedural decision, the CNCT (National Committee Against Tobacco) reiterates.

©Generation Without Tobacco

AE