Case C-891/26, Dean & Simmons France – a nicotine pouch ban that does not stop at the border
A Member State may decide that its own residents should not use nicotine pouches. Whether it may also stop its factories from making them for buyers elsewhere is the question the Conseil d’État has sent to Luxembourg.
Facts
Décret n° 2025-898 of 5 September 2025 prohibits, throughout France, the production, manufacture, transport, import, export, possession, offer, transfer, acquisition and use of nicotine products for oral use, with exceptions for chewing tobacco, medicines and medical devices among others. It was challenged by Dean & Simmons France and Manufacture de Tabacs Heintz Van Landewyck, EVLB, JT International France, Philip Morris France, British American Tobacco France and the Confédération des buralistes, with the association Contre-feu intervening in support of the decree. In December 2025 the Conseil d’État’s interim relief judge suspended the decree in so far as it banned manufacture, production and export, on an application by EVLB, a French company whose main market, according to that order, was nicotine granules for export to Great Britain and Ireland. On 13 July 2026 the Conseil d’État, ruling on the merits, rejected the other pleas. It held the bans on offer, transfer, acquisition and use justified under Articles 34, 35, 49 and 56 TFEU. It found a serious difficulty only with the bans on production, transport, import, export and possession where those operations serve solely to market the products in another Member State, and it stayed the proceedings.
Question Referred
Proceedings are stayed on the claims made in the applications until the Court of Justice of the European Union has ruled on whether national legislation which, in pursuing the objective of ensuring a high level of protection of human health, especially for young people, prohibits, in the territory of the Member State concerned, the supply, transfer, acquisition and use of products for oral use containing nicotine may, without infringing Articles 34, 35, 49 and 56 of the Treaty on the Functioning of the European Union, also prohibit, in general, the production, transportation, importation, exportation and possession of such products, where those operations are carried out solely in order to market those products in another Member State.
Sources
OJ notice C/2026/5485 (EUR‑Lex) · Case file on CURIA · Conseil d’État, 13 July 2026, No 509446 · Conseil d’État (interim relief), 22 December 2025, No 509561 · Gysbrechts, C‑205/07 (ECLI:EU:C:2008:730)
Comment
The domestic ban is not in question any more; the Conseil d’État has accepted that protecting health, especially that of young people, justifies forbidding French consumers to buy or use the products. What it doubts is the reach of the rest of the decree. A ban on making pouches for export is a measure on exports within Article 35 TFEU, and the Court has defined such measures broadly. In Gysbrechts (C‑205/07) it held that a rule applying to all traders could still be caught where “its actual effect is none the less greater on goods leaving the market of the exporting Member State than on the marketing of goods in the domestic market”. A rule that bans production destined only for other markets has no domestic market left to compare it with.
The harder part for France is justification. The health objective concerns people in France, and the products the referred question has in mind are meant to be sold in other Member States. A Member State may protect its own population; it is less obvious that it may protect the populations of other Member States against products those States allow. One possible justification is enforcement: that permitting production, transport and possession for export makes the domestic ban harder to police. The Court will have to decide whether that is enough, or whether checks on the destination of the goods would do the same job with less restriction.
The question also covers transit and import for re-export, and services under Articles 49 and 56. For companies whose business is exporting, as EVLB’s was according to the interim order, the answer will decide whether they can keep producing in France at all.