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05 July 2018
On 15 June 2018 the Secretariat of Health announced amendments to the General Law on Tobacco Control. The new Title Eight includes Articles 56 and 57, which specifically address crimes relating to tobacco products.
The new provisions entered into force on 16 June 2018 and are particularly relevant for individuals and legal entities engaged in the tobacco industry. Industry players are advised to consider the scope of these amendments and determine how their business operations in Mexico may be affected.
According to Article 56, any individual or legal entity that adulterates, falsifies, pollutes or modifies tobacco products or permits these activities will be subject to imprisonment of between one and nine years and fines.
Given the lack of specific actions that would constitute a crime under this provision, determining whether an individual or legal entity has adulterated, falsified, polluted or modified tobacco products may be subject to considerable interpretation by the competent authority. This could pose significant challenges for anyone involved in manufacturing, importing and marketing tobacco products.
According to Article 57, any individual or legal entity that introduces, exports, warehouses, transports, sells or in any other manner distributes adulterated, falsified, polluted or modified tobacco products will be subject to imprisonment and fines.
Essentially, this provision establishes that a crime is also committed by individuals or legal entities that do not necessarily carry out the adulteration, falsification, pollution or modification of tobacco products, but rather by those that participate in other related processes, including importing, warehousing, transporting, distributing and selling.
The crime is very broadly defined, since merely possessing a product that has been falsified, adulterated, polluted or modified may result in criminal charges – a situation that could escalate beyond the control of the charged individual or legal entity.
The lack of clarity in Articles 56 and 57 regarding the scope of these crimes could lead to enforcement abuse by the authorities, as proving the adulteration, falsification, pollution or modification of a tobacco product may be impossible for someone merely possessing a product.
The General Law on Tobacco Control defines 'tobacco products' as products or substances manufactured from tobacco leaves or using tobacco leaves as raw materials, whether intended to be smoked, chewed or sniffed.
However, on 11 June 2018 the Mexican health authorities issued a sanitary alert which highlighted a diverse range of tobacco-related products that are considered illegal in Mexico.
The alert emphasised that:
The health authorities could therefore attempt to initiate a criminal action against any individual or legal entity that possesses a product listed in the alert, regardless of whether the product is legally defined as a 'tobacco product' or merely treated as such by the health authorities.
For further information on this topic please contact José Alberto Campos Vargas at Sanchez-DeVanny Eseverri SC by telephone (+52 55 5029 8500) or email (firstname.lastname@example.org). The Sanchez-DeVanny Eseverri SC website can be accessed at www.sanchezdevanny.com.
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