Saborn Hermanos Sociedad Anonima v. Mexico
Chamber of Deputies of the Congress of the Union et. all v. Sanborn Hermanos SA, 853/2019, Mexican Supreme Court (2020).
- Nov 25, 2020
- Supreme Court of Justice
- Chamber of Deputies of the Congress of the Mexican Union
- Director of International Trade and Advertising Authorizations of the Federal Commission for Protection Against Health Risks (COFEPRIS)
Defendant Saborn Hermanos SA
General Law on Tobacco Control (Ley General para el Control del Tabaco)
Political Constitution of the United Mexican States
Type of Litigation
Challenge to Government Policies Relating to Tobacco Control/Public Health
Tobacco companies or front groups may challenge any legislative or regulatory measure that affects their business interests. Unlike public interest litigation, these cases seek to weaken health measures. These cases frequently involve the industry proceeding against the government. For example, a group of restaurant owners challenging a smoke free law as unconstitutional.
Tobacco Control Topics
Right to Health
A violation of the right to the enjoyment of the highest attainable standard of health. Public health advocates may claim the public’s right to health is violated by weak tobacco control measures, industry tactics, or an organization’s or smokers’ actions.
Type of Tobacco Product
E-cigarettes and other ENDS products
Electronic and/or battery-operated devices designed to deliver an inhaled dose of nicotine or other substances. Examples include electronic cigarettes (e-cigarettes), electronic cigars, electronic cigarillos, electronic hookah, vaporizers, and vape pens. ENDS does not include any device or medication approved by the government as nicotine replacement therapy.
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, 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 Article 16(VI) constitutional. However, it 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.