The regulation of and risks associated with vaping are among the most debated topics among health authorities and industry players worldwide. Mexico is no exception in this regard, as its developing vaping industry is subject to considerable scrutiny and the health authorities are taking a prohibitionist stance; however, this approach is not new. In recent decades, a diverse range of health-related products and activities have been banned.
The reasons for prohibition are diverse and clampdowns may be the result of (for example) enforcement officers' personal agendas or perspectives on health matters, or the political or administrative situation at a given time.
The Mexican health authorities have taken a prohibitionist approach to a number of products and services, including:
- dietary supplements;
- herbal remedies;
- homeopathic medicine;
- piercing and tattoos;
- tobacco products; and
- wellness and holistic therapies.
Owing to the growing relevance and awareness of the vaping industry, as well as numerous health-related cases outside Mexico involving products of this kind, the health authorities have taken a restrictive and prohibitionist approach to all vaping products and related activities.
Vaping as an activity, vapers of all sizes and shapes, vaping liquids, accessories and other new products and technologies that introduce nicotine into the body or relate to vaping in some manner are forbidden due to the potential health risks involved.
However, such prohibition is based on potential, rather than actual or duly evidenced risks to human health. According to the health authorities, the possibility of a risk to human health is considered more relevant than many fully evidenced health risks.
Considering the above, the health authorities deem the use and consumption of well-known hazardous substances and activities permissible, whereas new technologies and products which could become health risks must be prohibited until evidence to the contrary exists.
Vapes are relatively new products and, as such, have no specific legislation. The health authorities have adopted the Federal Law for Tobacco Control as the legal basis for prohibiting them; however, the law is inapplicable to non-tobacco (or related) products.
Article 16, Section VI of the law sets out the grounds for prohibiting vaping. This provision establishes that the possession, marketing, exhibition or warehousing of any products that are not tobacco products but which include the trademark of or a similar reference to tobacco products are strictly forbidden. The argument that vaping promotes the use of tobacco products – which are legal and regulated – by smokers and non-smokers has been used as grounds for prohibiting vaping products.
The legal provisions on which this prohibition is predicated apply to tobacco products, which differ significantly from vaping products. These provisions originally applied to products such as toys, ashtrays, clothing, lighters, pens, badges, cigarette and cigar boxes and countless other products with cigarette, cigar or snuff trademarks. Such marks were commonly sighted at sporting and public events until the early 2000s, when multiple jurisdictions – including Mexico – imposed tighter restrictions on the tobacco industry.
Arguably, the health authorities' attempt to prohibit and restrict vaping and other similar new tech products under these provisions is in clear violation of the Constitution and Mexican law. According to principles established by the Constitution and legal interpretation, any act or business that is not expressly forbidden by law is permitted. As such, products and acts that are not expressly forbidden by law must also be permitted, including vaping products.
The principal law governing restricted products and substances for human consumption is the General Health Law, which was enacted and published in the Official Federal Gazette on 7 February 1984, and the principal law governing tobacco products is the General Law for Tobacco Control, which was published in the Official Federal Gazette on 30 May 2008. Both laws were published long before vaping products appeared on the market.
Similarly, any legal provision that is discriminatory or which contravenes constitutional principles or human rights (eg, the right to self-determination) must be deemed contrary to the Constitution. In this regard, the federal courts and the Supreme Court of Justice have issued multiple decisions where health authority restrictions on vaping products and related activities have been deemed unconstitutional.
In view of existing court precedent, it is highly likely that future legal challenges to restrictions on products and activities without proper consideration of constitutional principles and human rights will have good grounds for obtaining judicial and constitutional protection from the courts.
Unfortunately, under Mexican law, the existence of precedent and jurisprudence does not prohibit the health authorities from implementing or applying legal provisions deemed to be unconstitutional. Parties which face similar challenges or that wish to engage in commercial activities involving prohibited products should therefore employ the necessary legal remedies.
This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.