Amparo Proceedings VS Federal Regulation of the General Law for Tobacco Control

In line with the latest amendments to the General Law for Tobacco Control (hereinafter “the General Law“) dated February 17 and May 20, 2022, the Decree amending and repealing several provisions of the Federal Regulation of the General Law for Tobacco Control (hereinafter “the Decree“) was published in the Mexican Official Federal Gazette on December 16, 2022, entering into force on January 15, 2023.

The Decree amends general features of the Federal Regulation of the General Law for Tobacco Control (hereinafter “the Regulation“) to extend its scope of application not only to tobacco smoke, but also to any “emission” generated by any tobacco product. This amendment sought to extend the regulation to every form of emission generated by the combustion or even heating of a tobacco or nicotine product (e.g., electronic cigarettes).

It is worth mentioning that the most relevant amendments in the Decree are those made in two of the most important areas of the regulation of tobacco products: i) advertising, promotion, sponsorship and sales encouragement; and ii) protection against tobacco smoke and emissions.

i. Advertising, promotion, sponsorship and sales encouragement of tobacco products.

Pursuant to the February 17, 2022, amendment to the General Law, an absolute ban on tobacco advertising, promotion and sponsorship was adopted. In line with the aforementioned, the Decree amended the Regulation to extend the ban by introducing two new terms: “Direct Display” and “Indirect Display”. While both terms are considered by the Decree as a type of advertising, the former refers to the placement of tobacco products through shelves, counters and displays, and the latter refers to the placement or storage of tobacco products in closed containers, cabinets or drawers that allow the consumer to indirectly observe such products. It is important to mention that in addition to the above, the Decree banned any type of advertising made in every existing broadcasting media.

ii. Regulation for protection against exposure to tobacco products smoke and its emissions.

The Decree amended three concepts that are fundamental to understand the regulation of the protection against exposure to tobacco smoke and emissions: a) “Smoking-Only Areas” (hereinafter “SOA“), b) “Outdoor Spaces“; and c) ” 100% tobacco smoke-free spaces“.

    a. Smoking-Only Areas.

First of all, it is important to point out that the SOAs existed prior to the amendment Decree. However, their regulation changed considerably through the amendments introduced by the Decree to Article 60 of the Regulation. In fact, an absolute ban to provide any food or beverage consumption service, entertainment services or social and recreational activities within the SOAs was adopted, affecting the restaurant industry, hotels, shopping malls, as well as any business in which recreational services are provided. Also, the Decree established a list of conditions that the SOAs must comply with in order to continue with its normal operations. For example, the SOAs must be located in outdoor spaces; they must be physically separated and uncommunicated from any 100% tobacco smoke-free space; they must not be located in any mandatory passageway for people or near a building’s entrance or exit; they must be located in a perimeter fence at least 10 meters away from every building’s entrance or exit, any mandatory passageway for people and every area in which people gather, as well as from every ventilation ducts, etc.

In addition, it is worth mentioning that since the moment the Decree entered into force, not only the space dedicated to the SOAs cannot be greater than 10% of the total area of the property that is dedicated to the provision of the service, but also every SOA must install preventive signs.

    b. Outdoor spaces 

The amendment of this key concept is relevant because, as mentioned above, the SOA must only be located in “outdoor spaces”, thus eliminating every possibility to locate SOAs in enclosed spaces or inside buildings. Through the Decree, the definition of this concept was amended in order to consider spaces covered by umbrellas, roofs or tarpaulins as enclosed spaces.

    c. 100% tobacco smoke-free spaces 

Finally, the definition of a “100% tobacco smoke-free space” was amended to include “collective gathering spaces” as smoke-free spaces. It is worth mentioning that the Decree also amended the definition of “collective gathering spaces” foreseen in the General Law, and broadened it to include not only balconies, terraces and patios, but also parks, beaches, sports facilities, entertainment centers, stadiums, arenas, shopping malls, markets, hotels, hospitals and health centers, among others. The latter has great implications, since the SOAs must be isolated from every 100% tobacco smoke-free space, which implies that they must also be separated and isolated from every collective gathering space.

We consider that the Decree breaches diverse constitutional and conventional principles; consequently, there are several legal actions through an amparo lawsuit to challenge such Decree with the purpose of obtaining a suspension and cessation of the effects of the Decree and, in due time, obtaining the protection of the Federal Courts against the entry into force and effect of such Decree. The filing of the amparo lawsuit must be done before February 27, 2022, before the Federal Courts.

Please do not hessite to contact us, should you need any further information about the effects of such Decree and the existent defense strategies to challenge it.

Yours sincerely,

Cannizzo