Joseph Hart 1 May 2025

 

EU governments are coming up with ever more creative ways to ban things they don’t like. Last year, we wrote about Luxembourg’s attempt to limit nicotine pouch strengths to a barely-there 0.46 milligrams. Spain is the latest country to attempt this de facto ban by implementing a 0.99 mg limit on pouches.

No EU citizen who uses pouches wants this kind of product. It’s been a long time since citizens’ wants and needs have had much purchase in the EU’s legislative process. But Sweden has found a way to bite back.

Spain’s Royal Decree

Spain’s draft Royal Decree was submitted to the European Commission’s TRIS notification system on January 24, 2025. There was a three-month period for the EC or other member states to object to the decree before Spain’s Ministry of Health could move it forward. Thankfully, Sweden has piped up.

While the decree covers a range of issues, such as plain packaging, additives, and flavours, Sweden feels that the nicotine strength aspect is tantamount to restricting the free movement of goods. In other words, complying with these limits would essentially mean that an important Swedish import is banned in Spain because any manufacturers would need to reformulate the product to compete in the market.

Text: European Court of Justice with focus on landmark cases impacting EU goods' free movement.

How did Spain arrive at the 0.99 mg limit?

The 0.99 mg cap suggests that something must happen at 1 mg and above. However, Spain’s National Markets and Competition Commission (CNMC) explicitly criticised the proposal for lacking scientific evidence to support the stringent limit. While other countries with the EU have 20 mg limits, even hyper cautious Canada allowed 4 mg ZONNIC pouches.

Thankfully, Spanish lawmakers’ decision to push for a <1 mg limit could be an error that brings the whole house of cards down. Here’s why.

Can the Swedish argument stand up?

While EU lawmakers are pretty contemptuous of ordinary citizens’ opinions, they can’t ignore European Court of Justice rulings. There is some precedent from cases that are roughly analogous to the absurd 0.99 mg limits imposed on nicotine pouches.

Cassis de Dijon (Case 120/78)

This European Court of Justice (ECJ) established the core principles governing the free movement of goods in the EU. For the unfamiliar, I’ll try to explain it as simply as possible.

  • A German retailer tried to import Cassis de Dijon, a French blackcurrant liqueur with 15% to 20% ABV.
  • German law requires fruit liquors to be 25% ABV or above, and therefore blocked the import.
  • Germany said keeping these drinks above 25% ABV would stop its citizens consuming alcohol as if they were “ordinary” drinks, making it a public health issue.
  • The retailer challenged this under Article 34 TFEU, which prohibits import bans or measures having equivalent effect (MEQRs) on trade between EU member states.
  • The retailer said this was an MEQR because it disproportionately restricted the free movement of goods.

The court ruled that goods lawfully produced and marketed in one EU member state must be accepted in all others, even if they don’t meet the importing state’s technical standards.

Now, there are exceptions. For example, if public health were at stake and the restrictions were proportionate. The arbitrary nature of the 0.99 mg cap could be decisive here.

German Beer Purity Law (1987)

The German Beer Purity Law is another famous and illustrative example. This 16th century law states that beer sold in Germany must be brewed exclusively with water, barley, hops, and yeast.

In 1987, the ECJ ruled that free movement of goods (Article 34 TFEU, again) should permit beers made in other EU countries that used additives or ingredients that are legally permitted in their jurisdiction. In other words, German beer standards imposed a trade barrier that forced other EU countries to reformulate drinks to compete in the market.

Walter Rau (Case 261/81):

Belgium required margarine to be sold in cube-shaped packaging to distinguish it from butter. The ECJ ruled that this restriction violated Article 34 TFEU for the following reasons:

  • Foreign producers faced extra costs to create cube-shaped packaging solely for the Belgium market.
  • Labeling could achieve the same goal without restricting trade.
  • The burden of making cubes essentially discriminated against foreign butters because it required reformulation or repackaging to meet Belgian standards.

Final thoughts

It’s clear to see that these three cases have some similarities to the Spain/Sweden nicotine pouch debate. While EU Commission decisions can sometimes leave you scratching your head, freedom of movement of goods is such a core tenet that it should be enough to dash the decree on the rocks.

The proposed 1 mg limit is not based on public health science. It’s a sneaky way to implement a de facto ban and inconvenience EU manufacturers. The EU has to rule against these restrictions, and as much as they might hate it, do something to help Spanish smokers transition to safer products.