LATEST ALERTS
Latin America remains one of the most important regions in terms of the future of regulation and market growth in tobacco alternatives. Leaders of associations in Argentina, Mexico, Panama and other Latin American nations are hopeful that 2024 will bring eased restrictions and the lifting of nationwide bans that have complicated sales and consumption of tobacco alternatives in the region in recent years.
As of 2023, there are eight countries in Latin America – Argentina, Brazil, Mexico, Nicaragua, Panama, Suriname, Uruguay and Venezuela – that prohibit the sales of electronic nicotine delivery systems (ENDS), which includes products like heated tobacco devices and e-cigarettes, according to the Pan American Health Organization (PAHO), the regional office of the World Health Organization (WHO).
In an August 2023 press statement, the PAHO reported that – in addition to the 8 countries in the region that have banned sales of the devices – 13 others have partially or totally adopted one or more regulatory measures, while 14 countries in the hemisphere lack any regulation of such devices.
Since 2022, presidential decrees issued in Mexico, Panama and Venezuela have enforced nationwide bans on e-cigarette sales, distribution, marketing and consumption, and have incensed regional groups that advocate the devices as alternatives to traditional tobacco use.
Many of the advocate groups in Latin America aspire for their countries to adopt legal frameworks to regulate the industry instead of strict prohibitionist policies they say create illegal black markets where the products sold are not vetted and are therefore riskier for consumers.
In the final months of 2023, there were some legislative and political developments in Argentina, Brazil, Mexico and Panama that have industry members encouraged that 2024 might bring and restore vendor and consumer freedoms in some of Latin America’s most important e-cig and tobacco alternative markets.
Argentina: can new hope come with a new government?
In November 2023, Argentina voted to elect 53-year-old Javier Milei as the nation’s new president, and his victory has encouraged members of the national vape industry. Milei, a libertarian who has proposed radical policy shifts to slow the country’s surging inflation, has said he supports open markets and the freedom of choice on health-related issues.
On 12th December, Juan Facundo Teme, president of the Argentina Vaping Association (Asovape), penned an open letter to Milei encouraging the new president to lift the nation’s 2011 ban on the importation, distribution, marketing, advertising and promotion of e-cigarettes. The letter, co-authored by Alberto Gómez Hernández, policy manager of the World Vapers’ Alliance (WVA), and WVA director Michael Landl, calls for the new government, which took office on 10th December, to repeal the 2011 ban.
The letter calls the ban on e-cigarettes “a serious mistake and an anachronism”. It says: “Not only has it not worked, but it has worsened the situation and prevents millions of Argentines from consuming nicotine in a safer way every day. It also restricts the freedom of Argentine adults and treats them with an unacceptable paternalism, which is clearly incompatible with the belief in individual freedom.”
The letter adds: “Less harmful nicotine products have the necessary characteristics to enable millions of nicotine-dependent people to consume nicotine in a less harmful way, with enormous benefits for their health, the public health of the country and the finances of the state.”
While Milei is yet to comment specifically on the alternative tobacco and vaping markets or ban, his election is considered by industry members to be encouraging and a possible first step towards the repeal of the long-standing ban on alternative tobacco product sales and consumption.
Brazil: awaiting a decision
Brazil’s National Health Surveillance Agency (Anvisa) is currently reconsidering its position over heated tobacco and vaping products. This would determine whether these products are eventually legalised or remain illegal.
In July 2022, Anvisa anticipated that the current prohibition would be maintained. However, there have subsequently been small signs that this position may be being re-evaluated.
A final decision of the administrative process is likely to be presented in 2024.
Mexico: one step towards a big help for the whole industry
In the spring of 2022, Mexican president Andrés Manuel López Obrador announced a nationwide decree to ban the sales, distribution and consumption of vapes and e-cigs in the North American country. The ruling paralysed Mexico’s legal e-cig industry and sparked the closure of alternative tobacco product and vape shops across the country.
In December 2023, however, a legal injunction known as an “amparo” was approved by Mexico’s Supreme Court and overruled the vaping ban. An amparo is a type of lawsuit in Mexico through which a company can seek legal protection or permission not to abide by regulation that violates its rights.
On 8th December 2023, the Supreme Court ruled in favour of a restaurant in central Mexico that filed an amparo claiming that the ban on vaping at the establishment was unconstitutional. While Mexico’s nationwide prohibition of vapes remains active – as the ruling applies only to one specific case and business – the Supreme Court decision demonstrates that the majority of magistrates consider the ban to be unconstitutional.
Juan José Cirion, a lawyer and president of Mexico and the Vaping World, told TobaccoIntelligence that the Supreme Court verdict is a sign of hope for the industry.
“The ruling establishes a criterion that other courts and tribunals are likely to follow in future cases that seek to determine the unconstitutionality of the ban,” he said.
WVA policy manager Gómez Hernández said that “Mexicans should be free to decide how they consume nicotine”.
He added: “Although the ruling does not establish jurisprudence, we hope that the government or the judiciary will reverse the ban soon. The ban has failed. It has aggravated the public health problem of smoking in Mexico and has created a huge black market controlled by mafias.”
Panama: more high hopes for the high court
Similar to Mexico, vaping advocacy groups in Panama turned to the country’s Supreme Court in 2023 in hopes of repealing a 2022 law that banned the sale, distribution and consumption of alternative tobacco devices. As of December 2023, members of the Panama Association for the Reduction of Damage by Tobacco Use (ARDTP) are hopeful that in 2024 the nation’s high court will rule the prohibition of the products to be unconstitutional.
In its lawsuit that was admitted to the Supreme Court in September, the ARDTP argues that law 315 – which banned heated tobacco product, e-cigarette and vape sales and consumption – was approved by only 41 legislators, short of the 48 required by the constitution to pass a bill. Additionally, the group claims that the law violates the national health law, fails to allow tobacco users access to alternatives, and goes against consumers’ rights to choose.
In a 7th December column, ARDTP president Tomás Sánchez asserts that members of the National Assembly failed citizens and their freedoms of choice guaranteed by the country’s constitution, alleging that the law was passed in favour of tobacco industry interests.
“Now is the time for the Supreme Court magistrates to examine the actions of Congress members with a magnifying glass and correct what was born improperly in the legislature,” Sánchez wrote. “We hope that they rectify the actions of Congress and that the magistrates comply with the demands of a population that asks to be heard and considered when public health policies in Panama are established.”
In February 2024, Panama will host the COP10-MOP3 conferences, organised by the WHO Framework Convention on Tobacco Control (FCTC), where regulation of new and emerging heated tobacco, nicotine and e-cigarette products will be one of the central topics of discussion among the 182 member parties.
– Adam Williams TobaccoIntelligence contributing writer
Photo: Agustin Diaz Gargiulo
