Federal Supreme Court, Decision 2C_718/2018 of 27 May 2019

26. Juni 2019 – In 2016, the Basel customs inspectorate stopped the import of around 245 kilograms of Snus – a moist form of smokeless tobacco which is usually placed under the upper lip in prepackaged pouches – into Switzerland on the basis of the Swiss Tobacco Ordinance. The importing company appealed this decision and finally reached the Federal Supreme Court. In its recent decision of 27 May 2019, the Federal Supreme Court came to the conclusion that the provision of the Tobacco Ordinance prohibiting tobacco products for oral use, such as Snus, has no legal basis in the Swiss Foodstuffs Act (SR 817.0). It states that according to the old Foodstuffs Act in force at the time of importation in 2016, Snus, like all other tobacco products, falls under the category of so-called “luxury foods”. The Foodstuffs Act states that luxury foods must not pose a direct or unexpected risk to health when used or consumed as normally intended. The Court held that these requirements for luxury foods are less stringent than those for foodstuffs. Finally, the Federal Supreme Court concluded that Snus does not pose any direct or unexpected risk to health, as the Federal Customs Administration admits in its consultation that the consumption of Snus is less harmful than smoking cigarettes. Moreover, the draft for the new Tobacco Products Act does not provide for a ban on Snus. Therefore, the appeal of the importing company was upheld.