New regulatory provisions on tobacco control

On January 15, 2023, new regulatory provisions regarding tobacco control in Mexico came into force. The following legal memo is a brief analysis of the changes and why it is appropriate to file an amparo proceeding.

On December 16, 2022, the Decree (the "Decree") amending, adding and repealing several provisions of the Regulations of the General Law for Tobacco Control (the "Regulations") was published in the Official Journal of the Federation (DOF). The main amendments to the Regulations contained in such Decree are the subject of this note.

Main changes to the Regulation

The purpose of the amendment to the Regulation is to protect the general population against exposure to tobacco smoke and emissions in any physical area with access to the public, in enclosed spaces, in all workplaces, on public transportation, in public places, or in public and private schools of all educational levels.

In this regard, the main changes are introduced in the following areas:

 

1. a) Display of manufactured tobacco products: the direct or indirect display of manufactured tobacco products is prohibited at points of sale, in accordance with the definitions of direct and indirect display established in the Regulation, which are reproduced below.

 

1. b) Advertising of such products: it is prohibited to carry out any form of advertising, promotion and sponsorship of tobacco products, directly or indirectly, through any means of communication and dissemination in terms of Article 23 of the Law.

 

1. c) Smoke-free and smoking-only areas: guidelines are established that must be observed by the owners, administrators or persons responsible for 100% smoke-free and emission-free spaces, as well as for establishing smoking-only areas, which must always be located in open-air spaces, in which it is prohibited to provide any service or consumption of food, beverages or entertainment, among others, as well as to carry out social or recreational activities. These exclusive outdoor areas must have a series of very strict characteristics, which are described below.

 

In addition, the concept of "spaces of collective concurrence" is defined for the purposes of smoke-free zones, including beaches and hotels, among others.

Criticism of the Decree’s content according to the Law and Constitution

 

1. a) Display of tobacco products

We consider that the Regulation goes beyond the provisions of the Law, since Articles 15 and 16 of the Law do not establish such prohibition. Therefore, the Law and the constitutional principle of reserve of law are violated. On the other hand, such prohibition transgresses the freedom of commerce, since displaying the product is not equivalent to promoting it, but to place it for sale as any other product whose commercialization is legal, as long as the displayed product cannot be taken directly by the consumer, in accordance with the provisions of the Law.

 

1. b) Advertising of such products

We consider that it is in accordance with the provisions of the Law, and it is suitable to achieve the purposes sought in the Regulation regarding the right to health. However, with respect to adults, we consider that the right to freedom of decision of adult consumers could be violated. Therefore, we consider that in congruence with such right, it would be ideal to retake the regulation of the second paragraph of the original article 23 of the Law, and authorize advertising only for adults.

 

1. c) Smoke-free and smoking-only areas

In relation to smoke-free zones, we consider that the Regulation is essentially in accordance with the provisions of the Law. However, in light of the hermeneutic principle of suitability and proportionality, we consider that including beaches and hotels in the definition of "areas of collective concurrence" is excessive. In the case of beaches, the prohibition is not suitable to protect health given the large size of the area and the winds blowing on them. Regarding hotels, it could be established that they are being discriminated against because they could have exclusive areas for smoking in accordance with the Regulation, thus violating their right to equality before the law and freedom of commerce.

With respect to the exclusive smoking areas, regarding the fact that they must be located in open air spaces, the Regulation complies with the provisions of Article 27 of the Law (amended in 2022). However, given that in the past when the Law was issued and when there were reforms to the Law, the owners of establishments, businessmen, etc., made substantial investments to comply with the guidelines of the Law in such matter. The Regulation goes against the right of non-retroactivity of the rules and the acquired rights of the businessmen who made such investments to comply with the Law. In addition, it will affect those establishments that cannot locate such areas outdoors, discriminating against them, violating the right to equality before the law and free trade.

In regards to the prohibition to provide in such exclusive smoking areas the service of food and beverages, the Regulation goes beyond the provisions of the Law. Thus, it violates the principle of reserve of law established in the Constitution, as well as the right to freedom of commerce. With respect to the hermeneutic principle of suitability and proportionality, such prohibition is not suitable for the health purposes of the waiters who carry the food and beverages, since the place is outdoors and they can use masks, and consequently, it is disproportionate in terms of affecting the employers' right to freedom of trade, and the right of the workers to receive tips and not to lose their jobs due to the decrease in the number of users of the establishments. In addition, the right of smokers to eat and drink is violated.

Conclusion

Against the violations of the fundamental rights mentioned and the constitutional principles indicated, it is appropriate to file an amparo proceeding, which may be filed within 15 or 30 days from the entry into force of the reform, depending on whether such provisions are considered herero-applicatory or self-applicatory. This is without disregarding the fact that it is in favor of effective public policies in health matters that are suitable, based on scientific evidence, and that are proportional to the affectation of other fundamental rights, such as the freedom of commerce and free decision of adults.

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Dispute Resolution Area of ECIJA Mexico

socios.mexico@ecija.com