Mexico’s Vape Ban Deemed Unconstitutional

As South America leans more and more towards prohibition, Mexico's second chamber of the supreme court has deemed the local vape ban unconstitional.

Diane Caruana

January 14, 2024

Mexico has set new stringent tobacco regulations as part of the General Law for Tobacco Control reform, with the aim of curbing smoking and promoting public health. The comprehensive measures build on existing federal and state tobacco control laws from 2008, and include a complete ban on the promotion, advertising, and sponsorship of tobacco products.

With the above, new regulations regarding the sales and use of vaping products have been included. However Mexico’s ban on vape sales has been deemed unconstitutional by the nation’s top court, the Second Chamber of the Supreme Court, with three favorable votes.

Local vape merchants will be able to challege the ban

While this decision allows retailers involved in the case to resume selling the products, other merchants may individually challenge the ban’s constitutionality through separate court cases, in order to gain the right to sell these products.

The ruling asserts that the presidential decree enforcing the ban violates freedom of commerce, presenting a legal setback for the government’s attempt to restrict vape sales in Mexico. However, part of an amparo lawsuit, this ruling applies specifically to the case in question. Hence the general vape ban remains intact.

This means that while this decision allows retailers involved in the case to resume selling the products, other merchants must individually challenge the ban’s constitutionality through separate court cases in order to gain the right to sell these products. Yet, while the decision doesn’t establish a legal precedent, it signals the Supreme Court’s acknowledgment of the decree’s unconstitutionality.

Alberto Gómez Hernández, policy manager of the World Vapers’ Alliance (WVA), welcomed the decision. He emphasized that the ban not only infringes on the freedom of trade for businesses, but also on the health and personal development rights of Mexican adults.

Gómez Hernández expressed hope for a reversal of the ban by the government or the judiciary. He reiterated that the prohibition has always failed, exacerbated smoking-related public health issues, and led to a significant black market controlled by criminal organizations. With over 40,000 annual smoking-related deaths in Mexico and nearly 15 million smokers, Gómez Hernández urges the country to drop the ban and adopt a strategy that incorporates the use of less harmful nicotine products as smoking cessation tools.

Argentina urged to repeal its own ban

Similarly, Argentina’s President is being urged by tobacco harm reduction experts to rethink the local harsh vape ban. The Argentinean vapers’ association Asovape Argentina and theWVA have jointly written an open letter to President Javier Milei, urging the repeal of ANMAT’s (National Administration of Medicines, Food and Medical Technology) administrative provision 3226/2011, which prohibits the commercialization of vaping products. The provision, enacted on May 6, 2011, bans the importation, distribution, marketing, advertising, and promotion of e-cigarettes.

In the letter, the associations highlight that numerous studies conducted since the ban demonstrate the significantly lower risk profile and effectiveness for smoking cessation associated with these devices, as well as the low health risk of nicotine. They argue that the ban infringes upon the individual freedom of Argentine adults and their rights to the free development of personality, information, and health.

Argentina has a smoking rate of 24.5%, one of the highest in the world, with approximately 225,000 Argentines falling ill and nearly 60,000 dying from smoking-related diseases annually. The signatories emphasize that the ban exacerbates the smoking problem, spreading misconceptions about vaping and hindering millions of smokers from switching to a safer alternative.

Juan Facundo Teme, President of Asovape Argentina, states that the ban violates the rights of Argentine adults and should be repealed. He argues that the state should respect individuals’ decisions to consume nicotine in a less harmful way, emphasizing that vaping is not equivalent to smoking.

Gómez Hernández has criticized Argentina’s restrictive stance on vaping, which is contributing to its high smoking rates. He encourages both Argentina and Mexico to adopt the approach of countries like Sweden and the UK. The latter make it easier for smokers to quit and improve their health, by making safer alternatives available as substitutes.