Decree: Prohibiting the Commercialization of Electronic Cigarettes

June 06 2022

Decree prohibiting the circulation and commercialization of Electric Cigarettes of the Ministry of Health

On May 31, 2022, a decree prohibiting the circulation and commercialization of Electronic Nicotine Consumption Systems (“ENCS”), Similar Systems without Nicotine (“SSWN”), Alternative Nicotine Consumption Systems (“ANCS”), electronic cigarettes and vaporizing devices with similar use, as well as the solutions and mixtures used in such systems (hereinafter as the “Decree” and all the electronic cigarettes and vaporizing devices as “Electronic Cigarettes”), went into effect after its publication in the Federal Official Gazette (“OGF”) by the Ministry of Health.

Relevant background

On February 19, 2020, a decree was published in the Federal Official Gazette, through which the Ministry of Economy prohibited the entry and exit of “vape devices” to national territory.

On July 16, 2021, a decree was published in the Federal Official Gazette, through which the Ministry of Economy modified the descriptions found in the General Import and Export Taxes Law (hereinafter the “Law”), which, for the first time, mentioned electronic cigarettes and vaporizers through the established SEAN, SSSN, and SACN terms.

On October 19, 2021, the Plenary of the Supreme Court of Justice (hereinafter “SCJN”), solved the Thesis Contradiction under file number 39/2021, in which it established the unconstitutionality of article 16, section VI of the General Law for Tobacco Control, which prohibits “commerce, sale, distribution, exhibition, promotion or production of any object that is not a tobacco product that contains any brand elements or any type of design or signal that identifies it with tobacco products”, arguing that it failed the proportionality test and  violates the right to freedom of commerce.

On October 22, 2021, a decree was published in the Federal Official Gazette, through which the Ministry of Economy prohibited in any way, the import and export of all Electronic Cigarettes into Mexican territory.

On April 27, 2022, the House of Representatives approved the ruling that enacts the General Import and Export Tax Law, which is yet to be published. The aforementioned law prohibits the import and export of all Electronic Cigarettes.

On May 19, 2022, the Federal Commission for the Protection against Health Risks (“COFEPRIS” for its acronym in Spanish) in coordination with the Ministry of the Interior, issued a maximum health alert “due to the health risks posed by products commonly known as vapers in all their forms“.

The aforementioned alert references the content of Vitamin E acetate in Electronic Cigarettes, a toxic substance that causes acute respiratory illness and even death. Due to this, health surveillance actions and verification inspections were increased by competent authorities.

DECREE

The Decree published in the Federal Official Gazette on May 31, 2022, is the first legal document that contemplates the prohibition for trading Electronic Cigarettes inside Mexican territory, since previously only their import and export was prohibited (considering that the SCJN declared article 16, section VI of the General Law for Tobacco Control, unconstitutional).

The Decree in question also states that the applicable sanctions will be imposed to those who fail to comply and continue to trade Electronic Cigarettes within the country.

In this regard, it is important to mention that the SCJN’s reasoning in the Thesis Contradiction mentioned in the third point of the background, could also be used to file a defense against the restrictive measures established by the Decree.

While the Decree prohibits the trade inside the country of Electronic Cigarettes, the absolute ban of these products violates the rights established in the Federal Constitution, in addition to the fact thar it also violates the rights to free development of personality and the right to free trade.


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