The Mexican government is moving to enshrine a ban on nicotine vaping products into its constitution—an extraordinary overreach aimed at bypassing Mexico’s Supreme Court, which has repeatedly overturned similar bans. Critics warn this move risks driving the market underground while undermining efforts to reduce tobacco-related harm.
Featuring:
TOMÁS O’GORMAN
Lawyer, Vaping Advocate
Co-founder, Pro-Vapeo Mexico
provapeo.org.mx
Tomás on X/Twitter
Transcription:
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Brent Stafford: Hi, I'm Brent Stafford and welcome to another edition of RegWatch on GFNTV. The country of Mexico is about to embark down a very dark and dangerous path newly installed President Claudia Scheinbaum is close to making good on her predecessor's promise to enshrine a complete ban on nicotine vaping products into Mexico's constitution. It's an extraordinary overreach aimed at overriding Mexico's Supreme Court, which has repeatedly overturned vaping bans. But many fear this move will hand over a booming black market to Mexico's most violent and entrepreneurial criminal organizations. Joining us today to talk through the impact is Tomas O'Gorman, a lawyer and vaping advocate and co-founder of the advocacy group Pro Vapeo Mexico. Thomas, thanks for coming on the show.
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Tomas O'Gorman: Thank you, Brent.
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Brent Stafford: Well, there's a lot of us, a lot of things here for us to unpack. We've been covering this Mexico issue for a while now. But first, tell us a bit about what you do as a lawyer and how you became an advocate for vaping.
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Tomas O'Gorman: Well, I practice private law. I prepare deeds and documents like that, last will, etc. And I also teach at the Universidad Panamericana or Pan American University here in Mexico City. I teach two courses. One is corporations law. And the other one is succession law, which is the one that has to be related to last wills and successions. I became an advocate because I quit smoking in 2016. And to be fair, I wasn't really seeking to quit. I mean, I bought my first e-cigarette in order not to get to the street to have a cigarette. And after I started vaping, maybe in two, three weeks more so, One weekend I decided not to buy any cigarettes and I stopped smoking. And then I started studying, you know, the Royal College of Physicians document, the Public Health England e-cigarettes review or the one they made in 2015. And it was so clear to me that this was an amazing alternative for smokers. And I must confess, I got a little bit angry because of the misinformation that was being spread. I mean, I was a victim of misinformation. Previous to that, I thought it was not a good option. So I had the fortune to meet Roberto Sussman and Juan Jose Cirior Lee, and we decided to incorporate or to create Por Vapeo Mexico in order to have a platform so we could do some advocacy and try to to show that this was a real and a great alternative for smokers.
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Brent Stafford: How effective has that been?
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Tomas O'Gorman: As you said, we are facing a constitutional ban, so we are losing badly the battle.
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Brent Stafford: Now, how extraordinary is this constitutional ban and will it be a mistake?
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Tomas O'Gorman: Mexico has had a ban on the commercialization of vaping products since forever. I mean, since the first documents I can find or the first mentions I find of the prohibition come from 2010. The thing is that putting this in the Constitution is pretty crazy. The provision itself is absurd. It doesn't matter if the provision is contained in a law or in a decree or any other government document. But putting the provision in the Constitution, especially in articles that grant or recognize human rights, it's like out of any rationality. And the problem regarding such a provision is that it is going to be very difficult to reverse it. It comes from the previous president desires. Mr. Lopez Obrador banned vaping by a decree in 2022 after the Supreme Court in 2021 ruled that the existing ban in the law was unconstitutional. And in February 5th of this year, he filed several amendments or bills to amend the Constitution. And one of those bills is the one related to vaping, to banning vaping in the Constitution.
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Brent Stafford: Now, the current president, tell us about her and the party, because she's a successor, correct?
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Tomas O'Gorman: Yes. Our current president is Mrs. Claudia Sheinbaum. She's a successor of Andrés López Obrador. She's part of the ruling party called Morena, which is in theory a left-oriented party. The thing is that even though she is a scientist, she's pursuing the same goals in regard to vaping that Mr. López Obrador wanted. And therefore, I mean, she has been very clear on the fact that this amendment is in course. Of course, it has to be voted in the Congress, both in the Cámara de Diputados, which is probably the Congress where the representatives are, and in the Senate. And because of last June's elections gave the supermajority to the Morena party, they are able to amend the constitution, even though the opposition votes against any thing put into a vote. They have enough deputados, representatives, and enough senators to change the constitution and do whatever they want.
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Brent Stafford: So what does the ban cover?
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Tomas O'Gorman: Well, the bank covers, it's funny because they are changing two articles in our constitution. They are amending article four, which is the article that recognizes and protects the right to health. And in that article, they are banning all activities regarding to marketing, production, distribution, fabrication of these products. I mean, all the commercialization in general terms. And they are also amending or modifying Article 5, which enshrines or protects the right to work and consequently, the freedom of commerce. So they ban the activity itself in Article 4, and they ban the possibility of a person or a corporation to dedicate to work in such activity.
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Brent Stafford: So in the area of the Constitution that's enshrining commerce, saying commerce is, you have the right to actually be engaged in commerce, except for this one thing in the Constitution, you can't be engaged in this commerce.
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Tomas O'Gorman: Yes, actually the previous rulings of the court against the prohibition were basically based on the freedom of commerce. So what they are doing is they are amending the constitution in order to ban the possibility or to have this freedom for corporations or for persons, for people to do activities as professionals related to vaping. The ban does not cover use, at least not yet. But of course, as everybody can figure out, the idea of banning, not use, but all aspects regarding to commercialization and production and the activity itself. Of course, it's oriented to take from us, from smokers, and in my case, from vapors, the possibility to find these products in Mexico. And actually, it also stops you or forbids you from getting them from abroad, of course, because also importation and exportation are banned.
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Brent Stafford: Now, is the rationalization for this, you know, the typical save the children?
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Tomas O'Gorman: Yes, actually, if you read the bill, it says that in order to protect the right to health, they are banning vaping. And, of course, it's only a narrative because it's a narrative based on lies and misinterpretations of scientific facts. if you see what we call the exposition de motivos, which is the arguments that any bill has to have in order to justify the reasons why it is being filed. It says several things that do not agree with the scientific evidence. Actually, they say in this bill that it says that vaping causes more damage and quicker than a combustible cigarette. which is funny because no one has died from nicotine vaping. But anyway, the thing is that López Obrador, the former president, took vaping almost like as a personal thing. And I guess that because of the court in several locations, ruled that the ban was unconstitutional because the court not only considered unconstitutional the existing provision in the general tobacco law. After he issued his decree in 2022, several unparalleled trials were granted to people and to corporations in order to consider unconstitutional the decree itself, his presidential decree. So he said, OK, you are regarding this prohibition unconstitutional. Well, I'm going to put it in the Constitution so you can no longer consider it unconstitutional.
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Brent Stafford: yeah it's actually quite striking how often the supreme court um has overturned uh these decrees or rules that were created and so clearly this is all about putting something in that is no longer going to have the oversight of the supreme court of mexico yes yes it's it's there were in mexico there is something called amparo trial
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Tomas O'Gorman: It's a legal procedure. When the government or any authority does something that affects your human rights or is illegal or unconstitutional, you can file this trial in order to make not applicable to you such disposition. And since the previous ban, or the one existing, because it's still enacted in the law, in the general tobacco law, and then with the decree, several unparalleled trials were won. So actually today, until we get this prohibition, this next new prohibition, you have companies and you have people that are legally selling the products in Mexico because they have won amparos. So you have a black market coexistence with a legal but unregulated market if you consider these people that have these amparos granted by the Supreme Court or by federal judges.
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Brent Stafford: so for people that didn't quite get it was we're talking about a legal exception that has been that you know this is in other industries too but in this particular case there are legally operating uh vaping product distribution and so forth because of these emperors yes because one of the characteristics of the amparo trial is called the relativity principle
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Tomas O'Gorman: And what it says is that the sentence of an amparo only protects the person or the entity that filed the lawsuit. So even though they are considering unconstitutional, and that's the precedent that has already been set, if you don't file if you're not a company and you don't file this this this um trial then and you you pursue or you or you still uh sell this product you you will be breaching the decree or or the law but if you want the battle then you are not uh doing something illegal because the effect of the sentence is that they take away from your your interest uh grown the application of such law or of such decree, in this case, the ban of the decree that bans vaping.
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Brent Stafford: So we're taping this just right towards the end here of November, and this will be released on December 6th. So is there any chance the amendment is going to pass in the next 10 days, or is it something that's going to happen next year?
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Tomas O'Gorman: Well, Brent, sadly, it is very possible that at least it will be approved by the Chamber of Deputados or the Congress. This morning, I just received notice that they are considering to put the bill into a vote on next week. To be fair, I am not sure if the Senate will then proceed to vote in this year or they are going to do it next year. I guess they will do it this year. So it is very likely that by the time that this interview is broadcasted, the prohibition in the Constitution will be a fact.
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Brent Stafford: That's less than two weeks. I mean, you know, we're coming up here to U.S. Thanksgiving. So December 6th is the end of next week. Oh, my goodness.
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Tomas O'Gorman: If you consider that vaping has been banned since around 2010, we did not experience real serious black market problems from 2010 to at least 2018 when the current regime arrived. And I guess that that's because it was a very poorly enforced prohibition. I mean, we even have expos, vape expos. Actually, some of them took place in the other side of the same street where Cofepris is placed. And Cofepris is our FDA, our sanitary authority, or our health regulator authority. So these vape expos were taking place just in front of them. And because the provision was poorly enforced, I mean, there were some acts of authority enforcing it, but they were very scarce. And usually the shops that got subject of such acts from the government, they got a paratrial, they got favorable sentences. But when the current regime arrived in 2018, they started being more aggressive towards the enforcement of the existing prohibition. In 2020, they actually started. First, the president issued a decree banning the importation and exportation in order to complement the existing prohibition in the law. Then they modified the law that establishes the taxes for importation and exportation. So they forbade the importation and exportation of these products. They also wanted to ban the commercialization of vaping in the law, but that particular bill was not voted. And after the Supreme Court ruled in October of 2021 that the existing ban in the general tobacco law was unconstitutional, then on May 31st of 2022, coincidentally in the World No Tobacco Day, Mr. López Obrador issued this decree in order to ban vaping. because several of our trials were uh granted uh considering or deeming this decree as unconstitutional that's what i believe that's the reason why mr lopez obrador filed this bill in order to amend the constitution and to establish the provision within the constitution itself and as they have the supermajority it's being voted as and I I don't make a lot of of expectations in in regard to this they have they have made in the last few weeks so many changes to the Mexican Constitution that I don't have much hopes that this will not pass because because I guess it will what role does Michael Bloomberg and the who have in making this happen in Mexico Well, I mean, there is no question that the NGOs sponsored by Mr. Bloomberg have influence in this. There have been several signs. I mean, the first one was that the law I just told you that never passed, the one that was going to ban vaping a few years ago, it was not voted because something that is called a dictamen, which is the it's like the document that the Health Committee of the Congress and in that time also the Commerce Committee or the Economy Committee But it's the document that is put to vote. It's something called dictamen, which is like the authorization from these committees within the Congress, where they analyze and they make modifications to a bill. And they define the final text of what is going to be voted by the diputados and by the senators. The draft of such dictamen was presented in the news at some point that the draft of the PDF file had been written not by a diputado or by the person within the Congress. It had been written by an attorney of Tobacco Free Kids. So you can have a very clear idea that there is an enormous influence if they are writing their documents that they are voting. And another example and the most clear example of that happened On February the 15th, during the COP, in the first day of the COP, the very same day in which this bill was proposed or was filed in the Congress in order to unbaping, the representative or the delegate for Mexico in the COP said that the country had the support of the Bloomberg Initiative. I guess those are the words he used. So, I mean, it's very, very clear that there is an enormous influence from the Bloomberg Initiative in what is happening in Mexico.
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Brent Stafford: That must be frustrating that an outside party like that is influencing an amendment to a country's constitution.
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Tomas O'Gorman: It is not also frustrating. It's very sad because in Mexico, the rates of tobacco consumption, of smoking, have not decreased in the last at least 12 years. If you use the ENSANUT, it's something called like Encuesta Nacional de Salud y Nutrición, which is kind of a survey made by the government. If you compare the rates in 2012, they were around 19.9% in the adult population. And if you see, at least I remember now the result from the 2022 survey, the adult population that was smoking was around 19.5%, if I remember correctly. The thing is that if you consider the growth of the population, it's very, very likely that we have more smokers now than in 2012. So the provision itself is bad. Putting in the Constitution, it's quite crazy because At the end, the only thing that they are protecting at a constitutional level is the black market they are creating and that they are promoting with this ban. And they are also protecting smoking because, I mean, people will keep smoking as they won't be able to access any alternatives.
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Brent Stafford: Yeah, I believe the number is 1.7 million vapers in Mexico. And so they're obviously, yeah, and they're going to obviously be challenged to not go back to smoking. Thomas, it seems to me that enforcing such a sweeping and rigid ban on nicotine vapes would create a prime opportunity for organized crime to dominate the black market with its typical ruthless efficiency. Do you feel the same way?
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Tomas O'Gorman: Yes, as I was telling you, as long as the enforcement becomes more strong and the provision is set in the secondary laws that will come after this constitutional amendment, of course, the organized crime will seek to take this because as an activity becomes more and more if you can talk about levels. I mean, the level, something is allowed or it's forbidden, of course, but you can also have some kind of a spectrum because it depends on how the government applies the ban. If they start getting after shops and after people selling these products, of course, the organized crime will see an opportunity and they have already been doing that, it seems, uh to to to take over this market with all the negative uh consequences that this this uh brings to the to the society because as you know this this kind of of very dark and black markets are are quite violent and i i think it will expose papers to to pretty bad products uh and even even the possibility of adulterated products
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Brent Stafford: Thomas, it strikes me as strange the relationship between that you've described between higher enforcement by the government. So stricter enforcement will lead to more organized crime.
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Tomas O'Gorman: Yes, because what I was referring to is that the government will, of course, enforce the ban on shops, or the ones that are not related to that, to the crime, to the organized crime. So when you have a ban, and it's poorly enforced, and it happened in Mexico before 2018, they were shops actually very openly selling the products. As I was telling you, there were even expos. And the ban itself was softer because it was an administrative ban. I mean, as I understand it, the worst that could happen to you was to have to pay a fine. But now that it's becoming, for instance, now that the importation is forbidden, then actually in getting these products from abroad, it's already a crime. And if they also completely banned the commercialization in the secondary laws as a result of the constitutional amendment, the thing is that the black market will become more deeper, you know, it will go to the to the very obscure or I believe it may go to these very secure places and it won't be so evident. So what will happen is that the people that were selling these products more openly will disappear and what will remain is a more darker activity usually related to that kind of crime, organized crime. The thing is that a black market always produces a lot of negative consequences. I mean, there is not a single positive consequence derived from a prohibition of this nature. Of course, as you have been saying, the black market and the possibility of violence is terrible. But also consider the smokers. I mean, people will be deprived of alternatives to quit smoking through the most efficient way to quit smoking, which is vaping. And vapers like me that already have quit smoking, Well, we will be at some point possibly be in the point to decide if we abandon completely the consumption of nicotine or if we go back to cigarettes because they are not banning cigarettes. And there is a very big, not only legal, but also illegal market of cigarettes because there are a lot of counterfeiting. illegal brands or smuggled cigarettes in Mexico besides the ones that are legally sold.
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Brent Stafford: So what will you do and others who vape in Mexico once this hard ban comes down?
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Tomas O'Gorman: I don't know. I mean, I would like to think that I'll be able to find liquids to continue vaping. But the thing is that if at some point that implies some risk for my personal, for my family, even legal risks, I might go back to smoking if I cannot stay abstinent from nicotine. Because at least in my case, I know it's a dependence. I don't care. It really helps me to function every day and I do like it. So it depends on how the ban is interpreted and how it arrives. Once it is established in the Constitution, then they have to make or amend existing laws or make new laws in order to to apply the ban because the ban itself in the constitution needs to be introduced in a law in order to become effective. And it depends what they are going to do. And it also depends how they are going to consider the ban and if they are going to also try to persecute users. Who knows? I mean, that's not the scope of the ban as it is in the project. But you never know. And in a country in which rule of law has been lost, or at least is not being considered important by the government, I don't know what they are going to do at the end. But the thing is that what it is very likely is that the provision is going to be introduced in the Constitution within a couple of weeks, or maybe January, but it's almost a fact.
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Brent Stafford: Is there any hope?
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Tomas O'Gorman: I have a little bit of hope because I know of lawmakers, even members of the ruling party, that consider that this ban is not a good idea. In a country like ours and in any other LMIC, these alternatives could play a very great role in order to help people because they are not only helping people to avoid all these smoking-related diseases, they are also helping these people to avoid not receiving the medical assistance that they will need if they keep smoking, because in Mexico and in these kind of countries, smokers suffer twice or suffer two aspects of the damages from smoking. They suffer the illness itself, the consequences from smoking, but they also suffer the consequences of poor medical services. So it aggravates their situation. And what the Mexican government is doing, they are depriving us of these alternatives. And if they put it in the Constitution, it's going to be almost impossible to revert because you will need the same ruling party to vote against something they have already voted. They are not going to acknowledge that they made a mistake. I mean, I hope they do, but it's very likely that they won't.