Mexico

Vap Labs asked the Federal Commission for Protection Against Health Risks (COFEPRIS) about the requirements needed to import and commercialize electronic cigarettes (e-cigarettes). COFEPRIS responded that the commercialization of e-cigarettes was banned under the scope of Article 16(VI) of the General Law on Tobacco Control, which states: “It is prohibited to trade, sell, distribute, display, promote or produce any object that is not a tobacco product which contains some of the brand elements or any type of design or auditory sign that identifies it with tobacco products.” Vap Labs filed an Amparo action based on alleged violations of constitutional principles. The District Court agreed and ordered COFEPRIS to authorize the importation, sale, and marketing of e-cigarettes in Mexico. COFEPRIS and the Chamber of Deputies of the Congress of Mexico requested the revision of the District Court's decision. They argued that the District Court decision should be void since the import and commercialization ban incorporated in Article 16(VI) does not violate the Mexican Constitution; Article 16(VI) instead establishes reasonable and proportionate restrictions on the exercise of Vap Labs' economic freedom. The Supreme Court of Justice for the Second Chamber agreed and ordered the District Court's decision's revocation and amendment, declaring Article 16(VI) constitutional. This is the fifth decision on this issue of the Second Chamber. Similar to a previous case, the Court distinguished between systems that operate exclusively with tobacco and those that do not, clarifying that Article 16(VI)’s ban applied only to e-cigarettes and not to heated tobacco products as these are tobacco products. This ruling applies only to the plaintiff who was a party to this case. See also Saborn Hermanos Sociedad Anonima v. Mexico, 853/2019, Mexican Supreme Court (2020).