Mexico modified its tariff classification due to the prohibition of imports of electronic cigarettes, in accordance with a resolution of the Supreme Court of Justice of the Nation (SCJN).
Specifically, the Ministry of Economy modified the tariff section 8543.70.18, through a publication on July 16 in the Official Gazette of the Federation (DOF).
Likewise, the change entails the elimination of the Alternative Nicotine Systems (SACN), so that they are classified in tariff section 8543.70.99.
The changes went into effect on July 17.
First of all, on February 19, 2020, a modification of the Rate of the General Import and Export Tax Law (TIGIE) was published in the DOF.
This publication prohibits the entry and exit of the national territory of vaping devices, among which are electronic cigarettes and tobacco heating devices, for which tariff fractions 3824.90.83, 8543.70.18 and 8543.90.03 in order to identify these products in greater detail and the correct implementation of the measures required.
Then, on December 26, 2020, the Agreement was published in the DOF by which the National Notes of the Rate of the Law of General Import and Export Taxes are published, the application of which is mandatory to determine the classification tariff of goods; which includes National Note 16 of Chapter 85 «Electrical machinery, apparatus and material, and its parts; sound recording or reproduction apparatus, television image and sound recording or reproduction apparatus, and the parts and accessories thereof appliances», referring to tariff item 8543.70.18.
The Second Chamber of the SCJN analyzed in the Amparo en Revision 853/2019, the constitutionality of section VI of article 16 of the General Law for Tobacco Control, which establishes the prohibition of trade, sell, distribute, display, promote or produce any object that is not a tobacco product, that contains any of the elements of the brand or any type of design or auditory signal that identifies it with tobacco products.
In this sense, the SCJN pointed out that in terms of the Report presented in August 2016 by the World Health Organization at the Conference of the States Parties to the Framework Convention for Tobacco Control (document adopted in Geneva, Switzerland, on May 2003, ratified by the Mexican Senate on April 14, 2004 and published in the DOF on February 25, 2005), it is noted that there is a wide variety of devices or instruments of different operation and nature, which can be classified as as follows:
SACN, strictly tobacco products that works by heating it, but not burning it.
Electronic Nicotine Administration Systems (SEAN), devices that heat liquid substances that may or may not contain nicotine, that is, they are devices that do not burn or use tobacco leaves but instead vaporize a solution that is then inhaled by the user
Similar Systems Without Nicotine (SSSN), similar systems that, operating under an identical or similar mechanism to that described for the case of ENDS, the device does not process the substance called nicotine, in such a way that it cannot be considered under any circumstances as a tobacco product.
Derived from what was indicated in the previous considering, the Second Chamber of the SCJN, concluded that the prohibition provided for in article 16, section VI of the General Law for Tobacco Control is constitutional in its scope of limitation and prohibition.
However, you cannot understand devices that strictly work from tobacco, which is why it is important to monitor their correct application.
Due to the aforementioned, it is necessary and urgent to keep updated those measures that guarantee effective access to health, for its correct application, so it is essential to modify the description of the tariff section 8543.70.18, to eliminate it to the SACN, which will be included in the tariff section 8543.70.99.
In addition, and in order to grant foreign trade stakeholders greater legal certainty in the interpretation of the nomenclature of the Tariff Rate with respect to the tariff section 8543.70.18, National Note 16 of Chapter 85 «Machinery, apparatus and material is modified. electrical equipment, and its parts; sound recording or reproduction devices, television image and sound recording or reproduction devices, and the parts and accessories of these devices» of the Tariff of the General Import and Export Tax Law , to remove the reference to SACNs.