TOBACCO CONTROL LAWS

Comercial Hotelera Mexicana de Occidente, S.A. v. Mexico

The plaintiff, Comercial Hotelera Mexicana de Occidente, S.A. de C.V., a Mexican hotel chain, filed an appeal for legal protection against Article 10(XV) of the Law for the Operation of Commercial Establishments in the Federal District (Ley para el Funcionamiento de Establecimientos Mercantiles del Distrito Federal), a clause that prohibits the sale of tobacco and all its derivatives in commercial establishments in both the hotel and restaurant industry. The plaintiff argued that this clause violated the right to commerce found in Article 7 of the Mexican Constitution. The Court found that the law did violate the right to commerce because the prohibition only applies to a few commercial establishments.  Because the law did not regulate any other industries, the Court concluded that the law was discriminatory and constituted an unjustifiable and inefficient means of decreasing tobacco consumption. 

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Comercial Hotelera Mexicana de Occidente, S.A. v. Mexico, Registry No. 168757, Tribunales Colegiados de Circuito [Collegiate Circuit Courts](2008).

  • Mexico
  • Sep 28, 2008
  • Collegiate Circuit Courts (Tribunales Colegiados de Circuito)

Parties

Plaintiff Comercial Hotelera Mexicana de Occidente, S.A.

Defendant Mexico

Legislation Cited

Constitution of Mexico

Law for the Operation of Commercial Establishments in the Federal District (Ley para el Funcionamiento de Establecimientos Mercantiles del Distrito Federal)

Related Documents

None

Type of Litigation

Challenge to Government Policies Relating to Tobacco Control/Public Health
Tobacco companies or front groups may challenge any legislative or regulatory measure that affects their business interests. Unlike public interest litigation, these cases seek to weaken health measures. These cases frequently involve the industry proceeding against the government. For example, a group of restaurant owners challenging a smoke free law as unconstitutional.

Tobacco Control Topics

Advertising, Promotion and Sponsorship
Measures restricting any form of direct or indirect tobacco advertising, promotion and sponsorship. (See FCTC Art. 13)

Substantive Issues

Right to Commerce
A violation of the right to carry on trade, business, or profession of a person’s choice. This right may also be called the right to free enterprise or economic freedom. The industry may argue that a business should be able to conduct its business without government regulation, including whether or not to be smoke free.
Right to Equal Protection
A violation of the right to equal protection under the law, or another form of discrimination. The industry may claim that regulations discriminate against tobacco companies or tobacco products. Smokers may claim that addiction is a health condition, so regulations discriminate against them based on their health condition. Facilities subject to smoke free laws may claim that smoke free (SF) exceptions (e.g., hotel rooms, mental hospitals, etc.) unfairly discriminate against SF businesses because the law should apply to all locations equally.
Reactionary Regulation
Regulatory measures consisting of political actions designed to punish the tobacco industry or tobacco users. The industry may argue such arbitrary and capricious regulations will fail to achieve the stated objective. They may also argue that the measures are too extreme, prohibitively expensive, and violate the principle of proportionality.

Type of Tobacco Product

None

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