[Unnamed Actor] v. Mexico
Actor v. President of the United Mexican States and Other Authorities, Amparo, Juez Décimo de Distrito en Materia Administrativa en la Ciudad de México, (2022).
- Oct 28, 2022
- Juez Décimo de Distrito en Materia Administrativa en la Ciudad de México
Plaintiff Unnamed actor
Defendant President of the United Mexican States and other authorities
Decree Prohibiting the Circulation and Commercialization of Electronic Nicotine Delivery Systems, Electronic Non-Nicotine Delivery Systems, Alternative Nicotine Delivery Systems, Electronic Cigarettes, and Vaporizer Devices with Similar Uses, as well as the Solutions and Mixtures Used in Such Systems General Law on Tobacco Control (Ley General para el Control del Tabaco)
Constitution of Mexico
Organic Law of Judicial Power
Plenary General Agreement 3/2013
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.
Right to Commerce
A violation of the right to carry on trade, business, or profession of a person’s choice. This right may also be called the right to free enterprise or economic freedom. The industry may argue that a business should be able to conduct its business without government regulation, including whether or not to be smoke free.
Right to Equal Protection
A violation of the right to equal protection under the law, or another form of discrimination. The industry may claim that regulations discriminate against tobacco companies or tobacco products. Smokers may claim that addiction is a health condition, so regulations discriminate against them based on their health condition. Facilities subject to smoke free laws may claim that smoke free (SF) exceptions (e.g., hotel rooms, mental hospitals, etc.) unfairly discriminate against SF businesses because the law should apply to all locations equally.
Right to a Healthy and Safe Environment
A violation of the right to live in a safe and healthy environment.
Tobacco is a legal product and the tobacco industry is a legal industry.
Type of Tobacco Product
Heated tobacco products (HTPs)
Heated tobacco products (HTPs) are tobacco products that require the use of an electronic device to heat a tobacco insert (stick or pod of compressed tobacco). HTP systems are fully integrated so that the heating device and tobacco insert for each system must be used together.
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.
An unnamed company, whose corporate purpose is "to import, export, buy, sell, manufacture, trade, transport, ship, distribute, deposit, store and negotiate in any way all kinds of: (i) Tobacco, cigars, cigarettes, filters and tobacco products (...)", filed an amparo against the Presidential Decree Prohibiting the Circulation and Commercialization of Electronic Nicotine Delivery Systems (ENDS), Electronic Non-Nicotine Delivery Systems (ENNDS), Alternative Nicotine Delivery Systems, Electronic Cigarettes and Vaporizer Devices with Similar Uses, as well as the Solutions and Mixtures Used in Such Systems published on May 31, 2022.
The company put forth many arguments, including that the President did not have the competence to issue the decree, and that the decree violated the right to equality and non-discrimination; lacked foundation and motivation; violated the principle of legal certainty, typicality, the right to equality and non-discrimination; and was disproportionate to the fundamental rights of free trade and the free development of the personality. The company also argued that there are more effective measures to protect public health and that the decree deprived people of a reduced-risk alternative to conventional products.
The Court considered that the decree followed the same rationale as Article 16(VI) of the General Law on Tobacco Control declared unconstitutional by the Supreme Court (Jurisprudence P./J. 3/2022 (11a.)): it seeks to justify an absolute ban on the circulation and commercialization of these products within the Republic. Ultimately, the amparo was granted on the grounds that the challenged decree is not a necessary measure and would not pass a proportionality test.