Mexico City, June 15th, 2022.
The Executive Power through the Ministry of Health published last May 31 in the Official Gazette of the Federation the «Decree prohibiting the circulation and commercialization in the interior of the Republic, regardless of their origin, of Electronic Nicotine Deliver Systems («ENDS»), Electronic Non-Nicotine Delivery Systems («ENNDS»), Alternative Nicotine Delivery Systems («ANDS»), electronic cigarettes and vaporizing devices with similar uses, as well as the solutions and mixtures used in such systems. (the «Decree»).
The Decree establishes a ban on the sale and distribution of products known as ENDS and ENNDS which include electronic cigarettes and vapes that may or may not contain nicotine but do not contain tobacco and ANDS which are electronic tobacco heating devices containing nicotine, as well as the solutions and mixtures used in such systems.
According to the Decree, this prohibition is based on the State’s obligation to guarantee the right to health (individual and social). The Ministry of Health considers that it puts people’s health at risk by allowing them to inhale harmful substances, and that it is an attractive channel for young people to start consuming nicotine.
Likewise, it points out that such prohibition does not violate the right to commerce, since the authority is empowered to restrict commercial activities «when the rights of society are offended» as they consider to be the case.
Please note that this is not the only prohibition to this type of products, since in 2021 the Ministry of Economy issued a decree prohibiting their import and export. In this regard, the Supreme Court of Justice of the Nation held that this prohibition was unconstitutional with respect to ANDS (Amparo en revisión 853/2019) and, as a consequence, granted amparos to individuals pointing out a violation of the complainants’ right to commerce, so it is very likely that another wave of amparos against this new decree is coming.
Our Life & Sciences practice group has developed a defense strategy against the Decree and is at your service to clarify any doubts you may have on this issue.
S I N C E R E L Y,
Juan Carlos Serra serra@basham.com.mx
Adolfo Athié aathie@basham.com.mx
Jesus Colunga jcolunga@basham.com.mx
Rodolfo Barreda rbarreda@basham.com.mx
Carolina Nogal cnogal@basham.com.mx
