Saborn Hermanos Sociedad Anonima v. Mexico

Saborn Hermanos Sociedad Anónima, a chain of cafés, asked the Federal Commission for Protection Against Health Risks (COFEPRIS) about the requirements needed to manufacture, 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.” Saborn filed an Amparo action alleging a violation of the principles of equality and non-discrimination. The District Court agreed and declared Article 16(vi) contrary to the Political Constitution. However, the COFEPRIS and the Chamber of Deputies of the Congress argued before the Supreme Court of Justice for the Second Chamber that Article 16(vi) establishes reasonable and proportionate restrictions on the exercise of Saborn’s economic freedom. The Supreme Court of Justice for the Second Chamber agreed and ordered the District Court's decision revoked.  This is the fourth decision regarding this issue in the Second chamber, but this marked the first time that the Supreme Court of Justice for the Second Chamber declared Art. 16(vi) constitutional. However, it distinguished between systems that operate exclusively with tobacco and those that do not. The Supreme Court of Justice for the Second Chamber clarified that Article 16(vi)’s ban applied only to e-cigarettes, and not to heated tobacco products as these were tobacco products. This ruling applies only to the plaintiff who was a party to this case.