José Alberto Campos-Vargas Ernesto Vega Zaldivar August 5 2020 Tobacco yes, marijuana yes, vaping no: absurd approach to major health problem Sanchez DeVanny Eseverri SC | Healthcare & Life Sciences - Mexico José Alberto Campos-Vargas, Ernesto Vega Zaldivar Healthcare & Life Sciences Legal backgroundProhibitionCommentBefore the COVID-19 pandemic, vaping was one of the most widely discussed topics among health authorities internationally. Mexico was no exception in this regard, as its growing vaping industry has faced considerable scrutiny and the health authorities have made several attempts to prohibit the use, sale and marketing of vaping products.Legal backgroundAs a general rule, the Mexican health authorities prohibit vaping, vapes, vaping liquids, vaping accessories, flavours and most other kinds of vaping-related product.This prohibition is based on the Federal Law for Control of Tobacco Products (the Tobacco Law) of 30 May 2008; however, vaping technology was virtually non-existent at that time and thus the law was silent on regulating vaping products.The Tobacco Law defines 'tobacco products' as "any product or substance that totally or partially uses as raw material tobacco leaves and which is bound to be smoked, chewed or sniffed", including cigars, cigarettes and chewing tobacco, all of which must be include the Nicotiana tabacum plant as raw material, either in natural or substitute form.Additional restrictions under the Tobacco Law include a ban on:providing direct access to tobacco products during retail activities;selling tobacco products using vending machines;promoting, distributing or delivering tobacco products in a gratuitous manner;selling tobacco products on premises used for educational purposes; andusing underage individuals in any kind of activity involving tobacco products (eg, the transportation, sale, distribution or publicity thereof).In addition to these prohibitions, it is expressly forbidden to:Market, sell, distribute or produce any kind of product that, although not a Tobacco Product, contains any of the tobacco products trademark elements or any other kind of mark or signal whether visual or sound that can be directly identified with Tobacco Products regulated by such Law. (Emphasis added.)The main purpose of this provision is to avoid the manufacturing, marketing or distribution of products (eg, toys, ashtrays and cigarette boxes) that in some manner include tobacco product trademarks or logos.However, the Tobacco Law is silent on the prohibition of other products which are used to smoke tobacco or other substances (eg, hookahs, pipes, hitters (heaters) and cigarette holders) and include neither the 'trademark elements' referred to by the Tobacco Law nor any reference to or restriction on vapes, vaping liquids and other similar products.Notwithstanding that the above provisions neither prohibit nor restrict the use of products not specifically regulated by the Tobacco Law, the health authorities assert that vapes and related items should be considered products with 'trademark elements' of tobacco products and thus it is illegal to sell, advertise or use them in Mexico.The health authorities' main argument is that the use of vaping products constitutes a health risk and promotes tobacco product use by smokers and non-smokers alike.Based on this interpretation, the health authorities have made several attempts to prohibit the sale and marketing of vaping products. Most of these attempts have been challenged by individuals or legal entities engaged in the tobacco industry, with favourable outcomes in the federal courts and the Supreme Court of Justice.ProhibitionOn 19 February 2020 the Executive Branch issued a decree amending the General Law on Import and Export Duties and its explanatory notes in order to:establish new tariff classifications for vaping products; andprohibit the import of such goods into Mexico.This prohibition would essentially impose tighter restrictions on the import of vaping products than on narcotics, psychotropic, toxic, poisonous or hazardous substances and other much more dangerous and high-risk products.As such, the health authorities issued a de facto prohibition on the use and marketing of vapes and related products by making their import illegal.This prohibition may be considered a violation of not only the Constitution, but also international trade agreements, as the import ban goes beyond the scope of product regulation laws and has no scientific or technical justification.In 2018 the Supreme Court of Justice determined that a complete prohibition on using marijuana as a recreational product would violate each individual's "free development of personality" and thus their potential to differentiate themselves from others and would therefore be a constitutional violation.The Supreme Court of Justice established that it is unconstitutional for the state to impose a single standard of healthy living in a country that allegedly recognises the existence of human rights – including uniqueness and independence – and each individual's personal freedom to determine the manner in which they live (eg, smoke marijuana), even if it is not in the best interests of their health.Moreover, the Supreme Court of Justice recently issued several precedents establishing that the health authorities' use of certain Tobacco Law provisions to deem vaping illegal and prohibit the import of vaping-related products violates Article 1 of the Constitution and the constitutional principles of equal treatment and proportionality, as such restrictions were stricter than those which apply to tobacco products.This violation derives from the total and restrictive prohibition on the sale and marketing of products which, although not considered tobacco products, may relate thereto and can thus be considered products from which the law attempts to protect an individual's health.CommentUnder Mexican law, the existence of certain precedents – and even jurisprudence in a determined sense – does not prohibit the authorities from implementing or applying legal provisions deemed to be unconstitutional to parties other than those which filed a legal remedy and obtained a favourable resolution thereto.Considering the above facts, Mexico will likely become a country where smoking tobacco, marijuana or sugar cane pulp in hookahs is permitted but vaping is illegal, despite the lack of evidence to show that vapes pose a greater health risk than tobacco or marijuana.For further information on this topic please contact José Alberto Campos Vargas or Ernesto Vega Zaldivar 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.