Victor Fuentes/Reform Agency
Friday, January 20, 2023 | 12:12
Mexico City.- Two federal judges today rejected reinstating the display of cigarettes in stores, prohibited as of January 15 by a regulatory reform by President Andrés Manuel López Obrador.
Celina Quintero Rico and Ulises Rivera González, Seventeenth and Fourth District Judges in Administrative Matters, denied provisional suspensions in appeals filed by Walmart de México, by a subsidiary of Dufry, the Swiss chain of duty free stores, and by a natural person, owner of a grocery store.
The judges affirmed that, for now, the social interest in protecting health prevails over damage to businesses, although the refusal of suspension does not mean that, when resolving the merits of the claims, they denied the protections.
“In the case, the contested rules are not imposing a total restriction on the sale and consumption of tobacco, but only a restriction on its advertising, so that people who already have that habit and decide to continue consuming those products assuming the risks that general health, they continue to be able to do so, and in any case the advertising restriction that is being claimed would be aimed at avoiding the appearance of new consumers, especially children and young people,” Rivera stated.
But clarifying whether the mere display of the products qualifies as “advertising” will be precisely the central point of these trials.
The Executive’s changes to the Regulations were to finalize details of a February 2022 reform to the General Law for Tobacco Control (LGCT), which completely prohibited cigarette advertising.
The chambers of commerce maintain that exhibiting the product is not advertising, so the Regulation would be unconstitutional, since the Executive went beyond what Congress authorized by law.
Until now, records of the Federal Judicial Council (CJF) only indicate a dozen appeals against this measure, but it is foreseeable that the number will grow, since the reform affects businesses of all sizes and grocery stores, but also restaurants, bars and meeting rooms, as well as tobacco companies, among others.
The foregoing, since López Obrador also eliminated smoking areas in restaurants, which can no longer serve food or drinks in spaces for smokers.
In several cases, the judges have requested clarifications before admitting the claims, while some were presented before the Specialized Courts for Economic Competition, which have returned them to generic administrative courts, since they consider that they are not responsible for processing them.
Most likely, most of the judges would deny the suspensions, on the grounds of public health, but the underlying issue of the constitutionality of the reform will take several months for final rulings to be handed down.
When López Obrador completely prohibited the sale of electronic cigarettes, in May 2022, only two of the 17 administrative judges in Mexico City granted suspensions, but four have already declared that measure unconstitutional.
During the regulatory improvement process, prior to the publication of the decree, the National Chamber of Commerce (Canaco) affirmed that cigarettes represent 25 percent of the sales of small merchants, while the National Association of Grocers maintained that hiding the product encourages illegal sales.
