Costa Rica Constitution Court Issues Final Ultimatum for ENDS Regulation

According to La Nacion's report on June 18th, the Constitutional Court of Costa Rica has issued a final ultimatum to the Ministry of Health, demanding that it publish Regulation No. 10,066 within two months. This regulation governs the management of electronic nicotine delivery systems (ENDS), non-nicotine similar systems (SSSN), and the use of heated tobacco and e-cigarettes.

In resolution number 2024016580 issued on June 14th, the Constitutional Court accepted a lawsuit filed by lawyer Walter Brenes Soto on May 24th. Brenes argued to the judges that despite Law 10,066 being published in "La Gaceta" on January 20th, 2022, two years later there were still no corresponding regulations in place, which he believed infringed on the basic rights of citizens. The judges agreed with Brenes' argument and ordered the Ministry of Health to establish the necessary regulations. The Ministry of Health has two months from receiving the notification to complete this task.

The Ministry of Health has provided an explanation for this. After the regulation was announced in 2022, the Ministry of Health had three months to develop the regulation. However, due to the need to consult with other relevant public institutions and the necessity to navigate the typical transitions brought on by a change in government, the Ministry of Health stated that it was unable to complete the task within the specified time frame. Deputy Minister of Health Allan Mora Vargas presented these reasons in defense of the ministry's inability to do so in a statement to the Constitutional Court judge and included them in case file 24-013568-0007-CO.

According to a report from the Ministry of Health, the regulatory proposal number 10,066 has been completed and is now awaiting review by the legal and regulatory department of the President's office before being signed by the President and published in "La Gaceta.

After analyzing the complaint, the Constitutional Court concluded that this regulation has a critical impact on the health rights of the people of Costa Rica. The court insisted that "alleged regulatory failures can constitute negligence declared within the jurisdiction of the constitution.

On May 14, 2024, the Ministry of Health issued a resolution prohibiting the import, use, sale, and operation of products containing synthetic nicotine. Health Minister Mary Munive Angermüller explained that the Ministry of Health, based on its authority and the principle of prevention, banned these e-cigarettes to prevent further harm to the public, as evidence shows that e-cigarettes containing nicotine levels exceeding European regulations are being sold in the Costa Rican market.

Resolution MS-DM-RC-2381-2024 prohibits the distribution, advertising, promotion, and sponsorship of products containing nicotine and associated accessories, as well as e-cigarette liquids containing cannabis derivatives. This regulation applies to all forms of media, whether through phone, digital, or any other means of accessing these devices and substances. The regulation will be enforced during the period in which the Ministry of Health issues technical regulations to control these devices and substances.

According to Angmuller's statement in May, this regulation is expected to be completed by the end of 2024.