Legislative background
Restrictions on importation of vapes and nicotine technologies
New Mexican Tariff Schedule
Resolution on article 16(VI) of General Law for Tobacco Control
Further amendment to Mexican Tariff Schedule
Implications of amendments

In the past two years, the government has taken an extremely harsh position against new nicotine products, regardless of whether they contain tobacco. Interestingly, during the same period, perspectives towards tobacco have become increasingly open and attempts have been made to legalise, or at least decriminalise, cannabis products and other substances, which are currently restricted or forbidden under the General Health Law due to their nature as psychotropics or narcotics.

Legislative background

In this regard, the Supreme Court of Justice has issued various criteria in connection with the interpretation of the following articles of the Federal Constitution:

  • article 1, which refers to the human right of equal treatment; and
  • article 4, which refers to the human right of health.

The Supreme Court of Justice's interpretation determines that, from an individual perspective, the free will and liberty of the individual must prevail over the right of health.

Based precisely on this interpretation, in 2018 the Supreme Court of Justice issued a resolution in which it established the obligation of Congress to decriminalise the use of cannabis for recreational and other purposes, which was expected to be issued shortly afterwards.

Simultaneously, and in a completely incongruous manner, the government decided to forbid the marketing of "vaping" (ie, using electronic cigarettes) and other new technologies for nicotine use, irrespective of the fact that the neither the use nor the marketing of such technologies was forbidden or restricted in Mexico in any manner.

Restrictions on importation of vapes and nicotine technologies

Despite this lack of legal basis, in February 2020 the executive branch of the government established a restriction on the importation of vapes and other new nicotine technologies, arguing that such goods represented a health risk. This restriction was made using a special provision set out in article 131 of the Federal Constitution, which entitles the executive branch of the government to:

  • impose restrictions relating to international trade;
  • increase, decrease or suppress import and export duties; and
  • restrict the importation, exportation or traffic of goods within Mexico,

In this regard, on 19 February 2020 diverse amendments to the Mexican Tariff Schedule were published in the Federal Official Gazette. The amendments added products with tariff item numbers 3824.90.83, 8543.70.18 and 8543.90.03, which included:

  • vapes;
  • electronic cigarettes; and
  • consumables for use with vapes and electronic cigarettes.

The amendments also restricted the import and export of these items in order to protect the health of the Mexican population through the identification of such items and the limitation of their availability. However, the marketing and use of these products was still legally feasible within the country, since no related restrictions had been enacted. Although other interpretations existed regarding an alleged prohibition on distributing, selling, advertising and carrying out other activities involving vapes in article 16(VI) of the General Law for Tobacco Control, from a strict legal perspective, this prohibition does not apply to the products at hand and has been declared unconstitutional by several federal courts.

New Mexican Tariff Schedule

In July 2020 a new Mexican Tariff Schedule was published in the Federal Official Gazette. On 24 December 2020 this schedule was further modified to duly reflect the inclusion of the aforementioned tariff classification numbers corresponding to:

  • vapes;
  • electronic cigarettes; and
  • their consumables.

Following the amendment, these tariff classification numbers corresponded to tariff classification number 8543.70.18, which included:

  • electronic nicotine administration systems (SEAN);
  • alternative nicotine consumption systems (SACN);
  • similar systems without nicotine (SSSN);
  • electronic cigarettes; and
  • vaping devices with similar uses.

Resolution on article 16(VI) of General Law for Tobacco Control

Further to the amendments to the aforementioned import provisions, the Second Chamber of the Supreme Court of Justice analysed and published a resolution in a constitutional appeal regarding article 16(VI) of the General Law for Tobacco Control. This is the article that had been interpreted by the authorities as the legal grounds upon which vaping and electronic cigarettes could be forbidden or restricted, and which arguably has nothing to do with such devices. The article refers only to products that are not tobacco products but that contain characteristic elements of tobacco products, such as:

  • ashtrays;
  • lighters;
  • toys;
  • car models; and
  • musical pieces used in ads.

In this regard, the Second Chamber of the Supreme Court of Justice determined that there are a considerable number of devices of diverse nature and technology that could be considered to be SACN, SEAN and SSSN products, all of which may be considered to fall within the prohibition set out in article 16(VI) of the General Law for Tobacco Control, except for those that include tobacco as an ingredient or component. This decision was based on the brief prepared in August 2016 by the World Health Organization (WHO) in the Conference of the Framework Convention on Tobacco Control, which was:

  • adopted in Geneva, Switzerland on 21 May 2003;
  • ratified by the Mexican Senate on 14 April 2004; and
  • published in the Federal Official Gazette on 25 February 2005.

This resolution contains several discrepancies. On the one hand, it recognises the existence of diverse technologies and products, as duly recognised by the WHO. However, on the other hand, it rejects the possibility of including these within a new category of products.

Further amendment to Mexican Tariff Schedule

Based on this resolution, the Mexican Tariff Schedule was amended in order to change the tariff classification applicable to products that use vaporised tobacco and permit their importation into the country.

Therefore, the description corresponding to the tariff classification number 8543.70.18 was amended to remove the reference to SACN products. These will be covered by tariff classification number 8543.70.99, which was precisely the number under which these goods were classified prior to the inclusion of tariff classification number 8543.70.18 in the Mexican Tariff Schedule.

In this regard, Chapter 85 of National Note 16 establishes that SACN devices will be included therein. This chapter refers to:

[m]achines, Apparatuses, and electric material and its parts, apparatuses for recording and reproduction of sound, apparatuses for the recording and reproduction of image and sound in television devices, its parts and accessories.

Implications of amendments

In essence, these amendments will permit manufacturers and marketing entities to import and sell certain devices that use vaporised tobacco in Mexico. However, vapes are not allowed to be imported or sold, despite the technology that they use and the risks involved being similar.

These amendments could be considered to present diverse legal and constitutional challenges, since they will limit access to the Mexican market. The one kind of product that can be legally imported is currently imported only by one of the larger tobacco products companies in Mexico.

Similarly, based on the actual terms and content of the resolution issued by the Supreme Court of Justice, it may be considered that other new nicotine technologies should also be considered as covered by the constitutional violation regarding their use and marketing. Therefore, it is unclear why only the SACN products were removed from the applicable tariff classification number of the Mexican Tariff Schedule.


It appears that the Mexican administration has again taken an incongruous position. On the one hand, it is amending the total and absolute restriction on the use of cannabis; however, on the other, it is forbidding, through the limitations and restrictions on importation and international trade, the marketing of and access to new technologies, all of which have been scientifically proven to be less risky than burning tobacco products.

If the underlying reason for such prohibitions is health, it should not only be SACN products for which the absolute restriction on import has been lifted, but also other new technologies that involve the consumption of nicotine, such as vaping products.

Likewise, the exclusion of only one category of products from the specific restriction will also result in other legal loopholes since it is unclear whether these products will be subject to:

  • the safety restrictions applicable to electronic products;
  • import permits;
  • sanitary licence requirements; or
  • payment of excise taxes for tobacco products.

However, in a recent public conference, the Mexican president suggested that there is a possibility that the authorisation to import and export SACN products included in the 16 July 2021 decree might be reverted. It therefore remains to be seen how the Mexican authorities will comply with the Second Chamber of the Supreme Court of Justice's judgment.

It seems that this is not the last thing that will be heard on this matter.

For further information on this topic please contact José Alberto Campos Vargas or Maria Luisa Mendoza at Sanchez-DeVanny Eseverri SC by telephone (+52 55 5029 8500) or email ([email protected] or [email protected]). The Sanchez-DeVanny Eseverri SC website can be accessed at www.sanchezdevanny.com.