Nicotine sachets: the extension of the French ban to production, transport, import, and possession before the CJEU

The French Council of State referred the scope of the French ban on oral products containing nicotine, including nicotine sachets, to the Court of Justice of the European Union (CJEU). Acting on a petition filed by six tobacco and nicotine companies and the Confederation of Tobacconists, the Council upheld the ban on July 13, 2026.[1] The core of the decree of September 5, 2025, remains unchanged, particularly the ban on their sale within the national territory. Only the ban on their production, transport, and export to other Member States remains suspended. The notice of referral was published in the Official Journal of the European Union on November 3, 2026. Simultaneously, an amendment to the 2027 Social Security Financing Bill (PLFSS), presented to the Senate, proposes replacing the ban with a taxation system coupled with a sales monopoly granted to tobacconists. Opponents of the ban are thus acting simultaneously in the courts and in the parliamentary arena.

The procedure initiated is based on the preliminary ruling mechanism, provided for in Article 267 of the Treaty on the Functioning of the European Union (TFEU). When a national court has a question regarding the interpretation of EU law, it can refer the matter to the CJEU and suspend proceedings pending the Court's ruling: this is known as a stay of proceedings. The Court does not decide the national dispute; it clarifies the interpretation of the Treaties, which the national court then applies to the contested text.[2].

Industrialists and tobacconists: a united front in legal proceedings largely dismissed

Decree No. 2025-898 of September 5, 2025, prohibits the production, manufacture, transport, import, export, possession, offering, transfer, acquisition, and use of oral products containing nicotine within the national territory. It specifically excludes chewing tobacco and medications, including nicotine replacement therapies. It was enacted pursuant to Article L. 5132-8 of the Public Health Code, which regulates poisonous substances. Six appeals were filed between November 2025 and March 2026 by Dean & Simmons France, the Heintz Van Landewyck Tobacco Factory, EVLB, JT International France, Philip Morris France, British American Tobacco France, and the Confederation of Tobacconists.

The applicants mobilized a very wide range of means. On procedural grounds, they invoked the lack of consultation with ANSES, irregularities in the signature and a failure to comply with the TRIS notification procedure provided for by Directive (EU) 2015/1535. On the merits, they emphasized the freedom to conduct business, equal treatment with tobacco and vaping, the right to property, the European Convention on Human Rights, European food law and the freedoms of movement guaranteed by the Treaty on the Functioning of the European Union (TFEU).

The Council of State dismissed almost all of these arguments. It noted that the draft decree had indeed been notified to the European Commission on February 24, 2025, and that France had responded to the detailed opinions issued by other Member States. It ruled that the health risks, particularly those affecting young people, justified the ban, and that the effectiveness of these products for smoking cessation had not been established. Above all, it considered that less restrictive measures, such as limiting nicotine content, prohibiting sales to minors, or regulating distribution, would not be sufficient, as the risks also concern young adults. It added that a ban covering all activities strengthens the coherence of the legislation and limits the development of an illegal market. Based on the case law of the CJEU relating to snus (judgment Swedish Match, C-210/03, 2004), it validates the prohibition of the offering, sale, acquisition and use under Union law.

Before the CJEU, a question limited to flows destined for abroad

The Council of State suspended its ruling on a single point: the prohibition on producing, transporting, importing, exporting, and possessing these products, even when these operations are solely for the purpose of marketing them in another Member State where they are authorized. The applicants, particularly EVLB, argue that the decree should have included an exception for these export-oriented activities. They invoke the free movement of goods (Articles 34 and 35 of the TFEU), the freedom of establishment (Article 49), and the freedom to provide services (Article 56).

The Ministry of Health responds that only a ban on all activities guarantees the consistency of the system, particularly in the face of online orders. It argues that distinguishing between products based on their intended use would be very difficult to enforce. Deeming the issue crucial and serious, the Council of State referred the matter to the CJEU under Article 267 of the Treaty on the Functioning of the European Union.

The Court must decide whether a Member State that already prohibits the offering, sale, acquisition, and use of these products, in order to ensure a high level of health protection, particularly for young people, can also prohibit their production, transport, import, export, and possession in general. The case is registered under number C-891/26, and the referral notice was published in the Official Journal of the European Union on 3 November 2026. No hearing date or judgment date is known at this stage. The scope of these proceedings is therefore limited. The Court is not asked to rule on whether the sale of nicotine sachets to French consumers should be authorized. The ban on marketing within France has already been ruled compliant with EU law by the French Council of State. Only the extension of the ban to industrial and logistical activities geared towards other European markets remains unresolved.

In the Senate, a new attempt by tobacconists to overturn the ban

In parallel with the European procedure, Amendment No. 500 The draft bill for social security financing (PLFSS) for 2027, presented by Senator Joseph on November 5, 2026, was declared inadmissible³. It proposed replacing the ban on nicotine sachets with a progressive excise tax of €22 to €66 per kilogram between 2027 and 2029, and granting their retail sale a monopoly to tobacconists, with a limit of 16.6 mg of nicotine per sachet and a ban on sales to minors. Its explanatory memorandum reiterated arguments that the Council of State had already rejected on July 13, 2026, notably the supposed effectiveness of mere regulation and the risk of a parallel market¹.

This initiative is part of the ongoing efforts of the Confederation of Tobacconists, which has also filed a petition with the Council of State, to overturn the ban and monopoly on the sale of these products. However, the argument that this network guarantees the protection of minors is contradicted by the facts. A survey conducted in the summer of 2025 by the Audirep Institute for the CNCT (National Committee Against Tobacco) reveals this.[3], based on nearly a thousand test purchases, shows that 31% of tobacconists agree to sell tobacco to a 17-year-old minor and that 81% do not ask for identification.

In France, the tobacco industry's influence is largely exerted through the network of tobacconists. Receiving significant public subsidies and serving as regular interlocutors with government authorities, they also receive substantial funding from manufacturers and, to a large extent, act as their intermediaries with policymakers.

©Generation Without Tobacco

AE

[1] Council of State, 1st and 4th chambers sitting together, Decision No. 509446 of July 13, 2026, Dean & Simmons France and others, published on July 13, 2026, accessed on November 9, 2026

[2] Juriguide, Nicotine sachets: European courts seized with the French export ban, Published on November 6, 2026, accessed on November 9, 2026

[3] Press release, One in three tobacconists still agrees to sell to minors without any identity checks., CNCT, published on November 12, 2025, accessed on November 9, 2026