Amparo: Way to Legally Sell Vapes in Mexico Under Ban

On the second day of GFN, 2FIRSTS had the opportunity to interview Juan José Cirión Lee, the president of Mexico y el Mundo Vapeando. Juan José shared that he had just successfully won the fight for one biggest Chinese vape company’s Amparo, giving way for them to legally sell vapes in the country Mexico. Which vape company Juan José is not at liberty to disclose.

What is Amparo

Juan explains that Amparo is a trial special to Mexico where a case can be taken to the federal judge to make decisions on whether a law or government action are violating human rights. Examples such as a monetary fine, closing a store, or in the case of e-cigarettes a presidential decree to ban the sales of e-cigarettes. Through Amparo, citizens or businesses can make a case that authority is violating human rights and therefore exempt or prevent the authority from taking action against the entity that made the case.

The prohibition of import, export, and the sales of e-cigarettes in Mexico was not a law that had gone through the proper process of debate and voting in the congress. It was a decree signed by the president, fast tracking it into effect similar to a law. This is one of the arguments tobacco and retail companies are to win their Amparo against the government. Juan José elaborated that companies can make several points of human violation when fighting for their own Amparo:

1) Unfair/non-uniform application of law. Tobacco is a regulated and legal product in Mexico, and e-cigarettes is a “tobacco-like product,” so prohibiting the sales of e-cigarette is unfair and against a principle of equity.

2) Freedom of choice. E-cigarette is a “tobacco-like product” and it is an additional choice of tobacco product like different flavored or different sized cigarettes are different options. To block e-cigarette sales is to violate consumers’ freedom of choice and the free development of personality.

3) Freedom of commerce. Again e-cigarette is a “tobacco-like product” and to prevent the commerce activities of it without a democratic process is violating company and consumer’s freedom of commerce.

Who has succeeded in Amparo?

Juan José explained that it is easier for tobacco companies to prove these points and win because they already sell tobacco products. Small companies may not have sufficient proof and documents to proof that they have legal interest to sell vapes, a product “similar to tobacco.” One possible way for small companies to circumvent this is to create a new company with the specific purpose to sell vapes.

To Juan’s knowledge, so far BAT’s VUSE, and PMI’s IQOS are legally selling in Mexico having gone through the Amparo process. Grocers and retailers such as Oxxo, Seven-11, and Sanborn’s have also won their cases individually. Additionally, a case Juan José is personally involved in, the Chinese vape company.

Problems

Juan José also highlighted some problems with Mexico’s current situation with prohibition on e-cigarettes, but at the same time companies are legally selling through Amparo. One, is that Amparo will only allow the company that had successfully made the case to legally sell the vape. Although it has set presidency for cases after it, the industry as a whole will be slow to legalize, which leads to the second problem. The legal market will be at a risk to be taken up only by the big tobacco companies, because they have the resources and the characteristics to more easily win their cases.