Four restaurants, including the canteen called The Great Golden Lion, along with a hotel, all of them in Mexico City, have already obtained separate amparo rulings in which the new Regulation of the General Law for Tobacco Control is declared unconstitutional, Therefore, these establishments will be able to sell drinks and food in the areas designated for smokers, without definitively applying said regulations.
The Fourth, Ninth, Eleventh, Twelfth and Thirteenth District Courts in Administrative Matters of the capital of the country, granted the protections in favor of the five establishments because the Anti-tobacco Regulation transgresses the constitutional principle of reserve of law.
In other words, the prohibition to sell food and beverages in smoking areas should have been done by reforming the law in Congress, and not through a regulation issued by the federal Executive Power, since article 27 of the General Law for Tobacco Control states that “There may be areas exclusively for smoking, which must be located only in outdoor spaces.”
Therefore, because a regulation cannot be above a law, nor exceed in its provisions what the norm allows, the five judges agreed that the Anti-smoking Regulation will not be applicable to the four restaurants and the hotel that they promoted. their respective Amparo Trials.
In this way, in the case of El Gran León de Oro, in addition to the fact that a definitive suspension had already been granted, the judge Ulises Oswaldo Rivera Gonzalez, head of the Fourth District Court in Administrative Matters, agreed with the restaurant, deciding in his sentence that “the Justice of the Union (it) protects and protects”, according to the file that was consulted by HIGH LEVEL.
The same occurred in the Twelfth District Court for Administrative Matters, whose head, Blanca Lobo Dominguez, ruled in favor of Hotel Jena, emphasizing that the General Law for Tobacco Control “in no way prohibited” the provision of food and beverage sales and consumption services in smoking areas.
The law has not eliminated “the possibility of exercising the fundamental right to trade” in these areas, so the Regulation cannot impose a limitation that is not contemplated in the norm, the togada added.
Both El Gran León de Oro, as well as the aforementioned hotel, and Los Canarios restaurant, the latter covered by the Thirteenth Administrative Court, must continue to have smoke-free spaces, but may maintain smoking areas, applying the regulations former.
The new anti-smoking regulations came into force on January 15, prohibiting bars and restaurants from selling drinks and food in areas where, up to that date, smoking was allowed.
In addition to this prohibition, the regulatory changes also prohibited the consumption of cigarettes in hotels, parks, beaches, performance and entertainment centers, courts, stadiums, arenas, shopping malls, markets, and transportation stops.
Similarly, the reformed Regulation, which was published in the Official Gazette of the Federation on December 16, 2022, provided that all commercial establishments should stop displaying the cigarette packs they had for sale.
Notwithstanding the foregoing, since February, in addition to dozens of restaurants that promoted Amparo Trials, various businesses also did so, including the chain of stores oxxo that, through a definitive suspension, returned to display cigarette packs in all its establishments.
The businesses that challenged the constitutionality of the Anti-Tobacco Regulations argued that the regulations violate articles 1, 4, 5, 14, 16, 25, 73 and 133 of the Magna Carta, by violating due process, freedom of trade, and exceeding the provided in the law that regulates tobacco products in Mexico.
All sentences in favor of the companies that promoted Amparo Trials against this regulation only benefit those particular consortia, Therefore, the unconstitutionality of the regulation does not have general effects, unless -soon- the Supreme Court of Justice of the Nation so decides.
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surya palaces Journalist and lawyer, specialist in legal analysis and human rights. She has been a reporter, radio host and editor.