Switzerland’s highest court has determined that the sale of chewing tobacco must be authorised, thus overturning a decision by a lower court.
The high court ruled on the appeal of an importer whose goods - nearly 250 kilogrammes of Odens 10 Extreme White chewing tobacco - had been refused entry in 2016 by Basel customs inspectors. Last year, the Federal Administrative Court confirmed that this was in compliance with food legislation.
The Federal Court, which on Tuesday annulled the administrative court's decision, was of a different mind. As a preamble, it noted that, until a new Tobacco Products Bill is adopted, tobacco products remain governed by the former Foodstuffs Act of 1992.
This law distinguishes between "nutritious products", which must not endanger health, and “pleasure products” such as alcohol and tobacco, which must not present a “direct or unexpected” health risk. In the Tobacco Ordinance of 2004, the Federal Council expressly prohibited the import and sale of "tobacco products for oral use". At the time, it was inspired by European law.
The Federal Court ruled that the government clearly exceeded its jurisdiction because European law was not binding and by distinguishing between nutritious products and pleasure products it clearly wanted to allow the sale of alcohol and tobacco.
Since neither party claims that oral tobacco presents a direct or unexpected health risk, its prohibition is illegal, the Federal Court concludes. Swiss customs authorities are therefore ordered to allow the applicant's cargo to enter Switzerland.
A new law on tobacco is pending for discussion in parliament.