Víctor Fuentes / Reform Agency
Wednesday, February 01, 2023 | 4:29 p.m.
Mexico City.- A federal judge granted the first stay against the presidential order eliminating smoking areas in restaurants.
Ulises Rivera González, Fourth District Judge in Administrative Matters, granted this Monday the suspension in an amparo promoted by the company name León de Oro, a canteen with that name that has been operating for almost 70 years in the Escandón neighborhood.
On January 15, the regulatory reform decreed by the Executive that prohibits “any service or consumption of food, beverages or entertainment” in smoking areas entered into force.
“The provisional suspension is granted to the complaining party, for the purpose that the claimed regulatory norms are not applicable to him, only with regard to the absolute prohibition of smoking in establishments dedicated to the service of food and beverages, being subject to compliance with the duties provided for in the General Law for Tobacco Control (LGCT) and its previous Regulations,” ordered the judge.
The Government can challenge the provisional suspension by filing a complaint before a collegiate Court, while it will resolve on February 8 whether to grant the final suspension, which would allow the canteen to continue providing food and beverage service in its smoking area for as long as it takes process the amparo trial.
Article 27 of the law, which is what The Golden Lion must adhere to, continues to allow smoking in open-air spaces.
“In places with free or restricted access to the public, workplaces with or without attention to the public, public or private, there may be areas exclusively for smoking, which must be located only in outdoor spaces in accordance with the provisions that establish the Secretariat.
The previous version of the regulation, meanwhile, is the one that has been applied since 2009, and allows smoking areas, not only in outdoor spaces, but also in “isolated interior spaces” that are subject to multiple technical requirements and were repealed with the recent reform.
The National Chamber of the Restaurant Industry and Seasoned Foods (Canirac), which brings together more than 600,000 establishments throughout the country, plans to promote injunctions against this reform.
Among other arguments, the restaurateurs allege that, by introducing this prohibition into the regulations, the Executive violated the principle of reserve of law, since Congress did not provide for it in the February 2022 reform of the LGCT, which vetoed cigarettes in places collective concurrence.
The same allegation has been presented to challenge another of the Executive’s reforms, which prohibited the display of cigarette packs in stores, equating said display with the advertising of these products, which Congress vetoed in the LGCT.
On this issue, both Judge Rivera González and other of his colleagues have denied the suspensions to the stores that have taken refuge.
