Vaporizer Ban Declared “Unconstitutional”By Alfonso Núñez | Tue, 10/26/2021 - 15:04
Mexico’s Supreme Court of Justice declared article 16 of the General Law for the Control of Tobacco, which prohibited the commercialization of vaporizers in the country, unconstitutional on October 19 on the basis that it damages free trade.
The status of electronic cigarettes in Mexico has been in a grey area after a February 19, 2020 presidential decree by President Andrés Manuel López Obrador banned the commercialization, sale, distribution, exhibition, promotion and production of any electronic cigarette containing cartridges with substances other than tobacco—vaporizers or vapes. This was allegedly done to protect the country’s health, particularly that of its youth as the World Health Organization (WHO) found the products to be more dangerous than previously imagined, more so than tobacco. However, they were still available for purchase online as well as physically in many of the country’s shopping centers.
The ban had been the subject of ample criticism. US tobacco giant Philip Morris, which owns the cigarette brand Marlboro, said that rather than solving the public health issues of vapes, a complete ban would only detonate the black-market with these products and present regulating challenges for Mexican authorities. Out of 26 subsequent initiatives between the Chamber of Deputies and the Chamber of Senators, 22 looked to regulate instead of prohibit their sale to forestall their introduction to the black-market while still addressing a national health issue.
Last week, Minister Juan Luis Gónzalez Alcantara Carrancá brought the issue to the Supreme Court, arguing that the ban violates the Constitutional freedom of equality. Court President Arturo Zaldívar agreed on its unconstitutionality on the basis of free commerce and the unhindered development of personality. A four-to-two majority of the Court agreed on the prohibition’s unconstitutionality but on different arguments, meaning the final definitive text will be approved in a future private session before being published in the Weekly Judiciary Report of the Federation.
The day after the Supreme Court’s decision, President López Obrador said “other mechanisms” will be studied to regulate vaporizers, recognizing them as an matter of health before commerce. The Minister of Health had previously found electronic cigarettes not containing tobacco to be a crucial issue for the country’s health, a conclusion backed up by the presidency.
While the Supreme Court’s ruling results in a case law providing protection for those being persecuted for the violation of the prohibition, it does not outright legalize the commercialization of vaporizers either, pushing the products further into the grey area they have found themselves in