Introduction
Regulation of tobacco products
Alternative nicotine products and heated tobacco products
New decree
Comment
It is well known that Mexico has acted as either a trampoline or as a producer of diverse drugs bound for North America and other developed markets.
Since the 1970s, the Mexican government has implemented a considerable number of programmes to avoid the growth of cannabis and poppy flowers bound for use in illegal drugs (ie, marijuana, opium and its derivates). It was possibly during the administration of Felipe Calderón that the country took its most energetic approach to combatting the growth of marijuana and poppies and the production of other synthetic drugs. These actions were known as "the war on drugs" and resulted in extremely complex situations regarding the growth of organised crime in Mexico.
Simultaneously, and obviously in a quieter manner, the Mexican government introduced a number of actions to prohibit or restrict the sale and use of tobacco products. The use of tobacco in Mexico has been documented for several thousand years and it was originally cultivated and used mainly for medicinal and religious purposes. Its "everyday" or common use started during the 20th century.
Regulation of tobacco products
In the late 20th century and the early 2000s, tobacco products – primarily cigarettes and cigars – were regulated by the General Health Law and some of its regulations. In 2000, the Mexican Official Standard NOM-028-SSA2-1999, which establishes the Guidelines for the Prevention and Treatment of Addictions, came into force. This standard included tobacco and tobacco use as official addictions that are subject to particular treatment and considered to be a public health issue. However, it did not impose any restrictions or specific regulations in connection with tobacco products.
It was not until 30 May 2008 that a specific law governing tobacco products was formally issued by the Mexican Congress. This was the General Law for Tobacco Control, enacted during the administration of Calderón and during the "war on drugs". This Law includes diverse provisions that primarily focus on:
- the characteristics of the tobacco products;
- general labelling and marking requirements; and
- publicity restrictions.
On 31 May 2009, the Law's regulations were published in the Federal Official Gazette. These included considerable provisions regarding some of the same aspects as the Law.
It was also during the mid-2000s that various Mexican states started regulating the use of tobacco products in public places. For example, on 29 January 2004, the Law for the Protection of Non-smokers in Mexico City was published in the Mexico City Official Gazette. Interestingly, this was enacted during the period in which the current president of Mexico, Andrés Manuel Lopez Obrador, was the head of the Mexico City government.
Alternative nicotine products and heated tobacco products
Of course, none of these legal provisions even contemplated, let alone regulated, products other than tobacco products. They mainly referred to cigarettes, cigars, rappé and chewing tobacco. Alternative nicotine products, such as vapes, and heated tobacco products were not contemplated by such provisions – they were not even commercially available at that time.
During the past four years, there has been a noticeable increase in the availability of heated tobacco and alternative nicotine sources in the Mexican market. As of today, these remain unrestricted, unforbidden and unregulated by any formal law in Mexico.
Due to the lack of legal provisions that regulate such products, the Mexican health authorities have attempted to assimilate them to those restricted by the Law's article 16(VI). This article prohibits the manufacturing, marketing, distribution or promotion of any kind of product that is not a tobacco product but contains elements associated with a tobacco product trademark, design or audio. It is clear that this product description does not correspond to most vapes, e-cigarette devices or heated tobacco product devices, but rather to publicity, toys, umbrellas and any other product that presents elements related to the trademark of a tobacco product.
In several cases, individuals or legal entities engaged in the marketing of these kind of devices have obtained favourable rulings from the courts, stating that the sale and marketing of these products is not forbidden by a formal law and, thus, should be deemed a legal activity. In 2020-2021, the Mexican Executive Branch made several attempts to restrict or limit the possibility to import vaping devices and the pods or liquids used by them. However, again, various legal entities engaged in their import and marketing obtained favourable resolutions by the courts. The Mexican Supreme Court of Justice has issued several criteria in connection with the unconstitutionality of any kind of absolute restriction on the use of various kinds of substances under free personality development principles – including cannabis and vaping devices.
On 31 May 2022, notwithstanding the existence of such precedents, the Executive Branch issued a decree to restrict and forbid the use and sale of vapes, heated tobacco and electronic cigarettes in all Mexican territory. Interestingly, the Executive Branch has no constitutional power to carry out such a restriction on the marketing and use of a product in Mexico, especially one that is not formally considered as restricted. The decree may be considered to violate several constitutional principles, such as the liberty of commerce and business, due process and legal grounds. Likewise, a restriction of this nature may also be considered to violate various international agreements and treaties.
It is worth considering the reasons behind the clear "war on nicotine" initiated by the current administration in contradiction to the precedents and principles issued by the Mexican Supreme Court of Justice. It is hoped that, in the near future, these products are well regulated with regard to their nature, quality, marketing and publicity. This would be preferable to an increasing absolute restriction or prohibition of such products, which would only heighten the risks associated with the quality issues of these products.
For further information on this topic please contact José Alberto Campos Vargas at Sanchez-DeVanny Eseverri SC by telephone (+52 55 5029 8500) or email ([email protected]). The Sanchez-DeVanny Eseverri SC website can be accessed at www.sanchezdevanny.com.