Vap Labs v. Mexico
Chamber of Deputies of the Congress of the Union v. Vap Labs SRL, 957/2019, Mexican Supreme Court (2021).
- Jan 13, 2021
- Supreme Court of Justice
Plaintiff Chamber of Deputies of the Congress of the Mexican Union
Defendant Vap Lab Sociedad de Responsabilidad Limitada de Capital Variable
Regulation of the General Law on Tobacco Control (as amended) (Reglamento de la Ley General para el Control del Tabaco) 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.
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.
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.
Vap Labs asked the Federal Commission for Protection Against Health Risks (COFEPRIS) about the requirements needed to 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.” Vap Labs filed an Amparo action based on alleged violations of constitutional principles. The District Court agreed and ordered COFEPRIS to authorize the importation, sale, and marketing of e-cigarettes in Mexico. COFEPRIS and the Chamber of Deputies of the Congress of Mexico requested the revision of the District Court's decision. They argued that the District Court decision should be void since the import and commercialization ban incorporated in Article 16(VI) does not violate the Mexican Constitution; Article 16(VI) instead establishes reasonable and proportionate restrictions on the exercise of Vap Labs' economic freedom. The Supreme Court of Justice for the Second Chamber agreed and ordered the District Court's decision's revocation and amendment, declaring Article 16(VI) constitutional. This is the fifth decision on this issue of the Second Chamber. Similar to a previous case, the Court 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. See also Saborn Hermanos Sociedad Anonima v. Mexico, 853/2019, Mexican Supreme Court (2020).