Luxembourg under fire for proposed ‘de facto’ ban on nicotine pouches

The European Commission, Sweden and Greece have raised several objections to a draft bill proposed by Luxembourg that would require the strength of nicotine pouches to be so low, as to be a de facto ban on the products.

Severely limiting nicotine content

Sweden has objected, saying that setting a ceiling of 0.048 mg nicotine per pouch, ‘effectively excludes all relevant products on the market. The draft can therefore be equated with a ban…an intrusive form of measure that hinders the free movement within the EU internal market. Such a measure must therefore be duly justified and proportionate to the objective to be achieved“. Sweden further asked why “other, less restrictive measures, could not be sufficient and proportionate.”

Greece complained to the Commission that the Bill “sets disproportionate maximum nicotine levels for nicotine pouches and novel nicotine products” which “hinders the functioning of the internal market”.

Nicotine pouches to be treated like tobacco

Luxembourg’s draft law aims to make nicotine pouches equivalent to cigarettes and other tobacco products by proposing restrictions on communication and labelling; and requiring compulsory graphic health warnings. The draft bill would also ban the sales of heated tobacco with “characterising flavours”. The justification for these proposals is that  “these products, like tobacco products, may have adverse health effects and should be treated in the same way from a legal perspective. Thus, the draft law proposes to establish a similar regime for nicotine pouches as that for tobacco products, making them subject to the same restrictions and obligations.”

Health warnings imposed on tobacco products for smoking focus on the inhalation of smoke and the related health impact. The European Commission noted  that “while several provisions [of the Tobacco Products Directive] apply to tobacco products in general, certain provisions [including those on graphic health warnings] only apply to tobacco products for smoking… [Luxembourg] must ensure this difference is respected.”

The complaint made by Greece also makes the point that the health warnings used for cigarettes and other tobacco products are not appropriate for nicotine pouches and other smokeless products because although they contain nicotine, they do not produce smoke.

The ‘standstill period,’ during which the Commission and Member States can comment on the Bill, has been extended from 10 March to 10 June.