Commercialization of vaping devices has always been technically illegal in Mexico. Usage, however, has not been, and the growth of a relatively unregulated vaping market reached almost 1 million occasional or daily users in 2017, according to government sources. The Supreme Court ruled in 2015 that the prohibition of vapes is unconstitutional; while vapers were cautiously optimistic that the decision would create a regulated vaping market, non-regulation has stubbornly prevailed.
At the end of May, we faced our latest blow: As the World Health Organization (WHO) has done in the past with vaping bans, it awarded President Andrés Manuel López Obrador (AMLO) a prize on May 31, World No Smoking Day. The day after, AMLO enacted a decree on electronic nicotine delivery systems (ENDS), adding the prohibition to “circulate” them in Mexico—a direct contradiction to the Supreme Court ruling. It was his fifth relevant decree since he became president in 2018, yet another attempt to work his way around the courts and Congress to pursue a prohibitionist agenda. Though the press, especially in the United States, has framed this newest decree as a total ban on e-cigarette sales, the move is better understood as the latest in a series of efforts to strong-arm the Mexican government into prohibition instead of sensible regulation.
With each presidential decree over the years, vapers worry the prohibitionist impulse will only increase—and enforcement, consequently, could ramp up.
It’s important to bear in mind that Mexico and Latin America are not the US or Europe or Japan. Law enforcement here is much more lax. Many rulings and laws are are negotiated, usually with low-paid inspectors or officials accepting bribes. This institutional weakness has dire consequences for many aspects of life—from security to education to business—but it has favored a tolerated non-regulation status for vaping. There is, though, even more cause for concern: While AMLO has now prohibited the importation, circulation and commercialization of vaping, the law has not really been enforced; yet with each presidential decree over the years, vapers worry the prohibitionist impulse will only increase—and enforcement, consequently, could ramp up.
Though many outside of Mexico believe AMLO to be a staunch left-winger, he is much more of social conservative, one who believes the ills of the country stem from the corruption of previous presidential administrations. His approach—heavily centralized state intervention to deal with societal problems— has often lacked transparency, and while he won election on a left-wing platform, he has put forth what some fear are autocratic tendencies. Dissent, for example, recently noted that “there have been more frequent and more serious episodes in which AMLO has overstepped the bounds of democratic leadership,” and that “he has embraced the personalization of authority as the best way to advance his political project.”
This “personalization of authority” was nowhere more apparent than when he granted Dr. Hugo López Gatell—the Head of the Undersecretariat of Prevention and Health Promotion at the Mexican Secretariat of Health—the same type of centralized vertical and personalized authority over the health sector. Despite his official title, López Gatell now acts as the de facto health minister, answerable just to AMLO. López Gatell, an epidemiologist graduated from the Johns Hopkins Bloomberg School of Public Health, also appears to have links to high-ranking technocrats of the Pan American Health Organization (PAHO) and to Bloomberg Philanthropies. And he has parroted the same fears about vaping as the WHO—which emphasizes the dangers of youth vaping over the benefits of e-cigarettes for adult smokers and includes Michael Bloomberg, the most influential anti-vaping philanthropist in tobacco control, as a global ambassador.
For the WHO, the guidelines on vaping appear relatively simple: If it’s already legal, regulate it as strictly as cigarettes; if it’s banned, keep it banned. These guidelines are virtually the same as those recommended by the Union, a Bloomberg-funded nongovernmental organization (NGO). With absolute control of the health sector (he is, again, only accountable to AMLO), López Gatell has gone on to implement these guidelines in Mexico, receiving the full endorsement of senior tobacco control academics in government and academia, and from Bloomberg-funded NGOs.
López Gatell has said that the idea vaping is significantly safer than smoking is a “big lie” promulgated by the tobacco industry.
Even today, López Gatell and the Health Ministry treat “EVALI” like it’s still occurring—despite the fact that the US Centers for Disease Control and Prevention (CDC) belatedly recognized the cause as illegal THC cartridges adulterated with vitamin E acetate. (That is, not nicotine vapes.)
López Gatell has said that the idea vaping is significantly safer than smoking is a “big lie” promulgated by the tobacco industry, and he has used the falsehood of an eternal EVALI to convince AMLO that vaping posed an immediate danger to the population, especially youth. He has also exploited AMLO’s social conservatism and concern to protect youth from addiction, as well as his nationalist dislike of any foreign meddling in public policies, pointing to tobacco companies like Philip Morris International (PMI) and British American Tobacco (BAT).
AMLO and López Gatell’s main obstacle in prohibiting vaping was the fact that the Lower House of Congress was trying to regulate it. In order to trample the legislative process, AMLO enacted his first presidential decree in February 2020, which added to the existing commercialization ban a prohibition on importing, exporting or distributing vaping devices and heated tobacco products, including e-liquids and spare parts. This prohibition really made things worse, as vendors became not only felons violating a health regulation (subject to a fine), but smugglers and tax evaders, possibly subject to harsher penalties. Instead of facing only health inspectors, they would have to deal with inspectors from Customs and Income Revenue authorities. Government officials could also extort consumers.
The COVID pandemic, though, halted the anti-vaping offensive. AMLO appointed López Gatell as the “COVID czar.” Many critics have repeatedly pointed out his handling of the pandemic, which they contend has been erratic, technically questionable and overtly politicized.
But by the end of 2020, AMLO was enacting a second decree, basically an upgrade with a new law on import and export duties. On the subject, López Gatell meanwhile excluded from parliamentary debate all 10 law initiatives that proposed vape regulation—keeping only an initiative he sponsored that included the prohibitions of the presidential decrees. Several legislators and vaping activists foiled this effort, and a scandal ensued when we discovered that the entire text of López Gatell’s initiative had been written by an Argentinian lawyer working for the Bloomberg-funded Campaign for Tobacco-Free Kids.
Later, in early 2021, PMI lobbied legislators and convinced them that IQOS, a heated tobacco product, needed to be regulated under the current tobacco law. AMLO signed his third decree, exempting heated tobacco products from his previous decrees.
In the second half of 2021, López Gatell exerted pressure on the judges of another chamber of the Supreme Court to obtain a constitutionality ruling for the prohibition of vapes, which he hoped would contradict the 2015 ruling that it was unconstitutional. However, the Court decided by a seven-to-four majority to reaffirm the 2015 ruling.
This was the biggest blow to López Gatell and AMLO, as it would make it very hard for judges to turn down habeas corpus arguments of consumers and vendors against the prohibition decrees.
AMLO was enraged. He said that he would ignore the Supreme Court—and, consequently, enacted a fourth decree banning heated tobacco products. (The same ones that he had exempted in the previous decree.) He went on to publicly warn in several of his morning press conferences that vaping was lethal—actually worse than smoking—and that he would protect Mexican youth from the “predatory marketing” of the tobacco industry.
It’s hard to see to what degree these measures will be implemented and enforced, or the extent to which they will foment police abuses.
And now we’ve arrived at the present: AMLO’s fifth decree. The new law is a step further for prohibition, as it bans smoking and vaping in large open outdoor areas that are not clearly delineated. But Mexico is not California or Australia, so it’s hard to see to what degree these measures will be implemented and enforced, or the extent to which they will foment police abuses.
Meanwhile, smoking rates in Mexico have remained relatively stable in the past decade or so, increasing from 17 percent in 2011 to 17.6 percent in 2017—with only 3.5 percent of smokers using smoking cessation services offered by public health institutions.
Further worrying developments are already happening. Traditionally, informal vendors have supplied the vaping market; they act outside the law, but most make substantial efforts to self-regulate. This type of informal market is widespread in Latin America and occupies a large percentage of the labor force. Since 2021, the vaping market began to be swamped by low-quality Chinese disposables that are now sold everywhere, even by ambulant vendors and in vending machines, which makes them accessible to minors of all social classes. It’s unlikely that established vendors of the informal sector have the resources to establish such a vast commercial network; bigger outside players will probably take over the market.
Repression to dismantle vaping stores and outlets could attract too much media attention, with vapers and vendors shown as victims of a government brutally enforcing a policy deemed as unconstitutional by the Supreme Court. A possible scenario, then, could be that bans remain but are not strictly enforced, allowing established vendors to keep operating, but under the “protection” (i.e. extortion) of criminal organizations. That would supply a market of millions of potential consumers, much larger than the consumer base of cannabis or illegal substances.
Ultimately, it’s fair to speculate that this will all be a potential risk to consumers due to lack of protective regulation, minors’ easy access, and likely increased risks of criminalization and police abuses.
Photograph by VV Nincic via Flickr/Creative Commons 2.0
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