Panama’s e-cig ban unconstitutional and violates health rights, claims lawsuit

7h/Panama’s ban on the use, sale and import of e-cigarettes is unconstitutional, according to claims made by the Panama Association for the Reduction of Damage by Tobacco Use (ARDTP) in a lawsuit presented to the country’s Supreme Court.

Many of the association’s arguments concern technicalities relating to the parliamentary process. But it also contends that Panamanians’ health rights are violated by Law 315, the ban introduced in 2022, because it denies citizens access to nicotine and tobacco alternatives that are less damaging to their health than traditional cigarettes.

Tomás Sánchez, president of the ARDTP, told ECigIntelligence that a study showed the illicit market for vaping products has proliferated since the ban began. He added that the illicit market for conventional cigarettes in the country was already significant and that the e-cigarette ban only expanded that illegal activity.

The study showed that 93% of all nicotine products in Panama – combustible cigarettes and e-cigarettes combined – were illegal. Significant numbers of products were coming into the country unreported and undetected by customs, while international travellers were also carrying in quantities for “personal use”, which they then went on to sell in the domestic market.

The Colón Free Trade Zone, where some nicotine and combustible alternative products are permitted (though technically only for re-export), was potentially the largest point of entry for illicit products.

“The worst part about it is that electronic cigarettes from unknown and questionable origins continue to be circulated throughout Panama,” Sánchez said. “The black market is excessive, and the lack of tax collection and possible problems that the black market brings into the country, such as unregulated, uncontrolled and dangerous products, present a threat to the health of Panamanians.”


Questions raised over validity of the legislative vote

The lawsuit presented to the Supreme Court on 7th August also questions procedural issues. The ARDTP says that during the debate to approve Law 315, the minimum number of congressional votes required by the constitution to pass legislation was not met. According to the group, only 41 legislative members – fewer than the constitutionally required two-thirds majority (48) – voted to approve the law.

It appears this argument hinges on whether the two-thirds majority stipulated in the constitution applies to the whole of the National Assembly – in which case 48 would be required – or to only the number of legislators in attendance on the day, in which case the 36 members who did vote to pass it would suffice.

The ARDTP also believes that Law 315 was deliberately scheduled for a vote at a time when the full National Assembly was not present, because the members absent were likely to vote against the law.

On another procedural issue, the ARDTP claims that the bill presented in the National Assembly was approved after the expiration of the legislative year during which it should have been passed, and it should thus be voided for its failure to be passed within the timeframe permitted by the constitution.

According to Panamanian law, there are eight months of legislative periods in the country each year, divided into two four-month timeframes — from 1st July to 31st October and then 2nd January to 30th April. The e-cigarette bill was debated in January to March 2020 and approved before 30th April, then partially vetoed by the presidential offices in May. All this took place within one legislative year.

But it was then returned in modified form to legislators for approval, which did not happen until after 1st July – by which time the next legislative year had started. The ARDTP argues that because the law wasn’t approved within a single legislative year, as stipulated by the constitution, it should be voided.

Additionally, the ARDTP says elements of the bill were changed by legislators following its approval in a first debate, and a modified bill was approved in a second and third congressional debate, which it says is unconstitutional.

“We have proof of unconstitutionality of Law 315 and, as sovereign Panamanians, we have the right to raise our voice against what is incorrect,” Sánchez said. “We hope that the Supreme Court of Justice does its job and validates our evidence that demonstrates the poor process conducted by the National Assembly regarding this law.”


Stringent prohibition of e-cigs in all forms

Law 315 was published in Panama’s official legal gazette on 30th June 2022. The law prohibits the use, import and sale of electronic nicotine delivery systems, e-cigarettes, vapes, heated tobacco devices and similar devices, both with and without nicotine.

Among its restrictions, the law prohibits consumption in all forms as well as “the online purchase or promotion” of e-cigarettes, vapes and heated tobacco or similar devices in Panama, and provides that anyone found in violation of the legislation will be sanctioned.

The law also authorises the national customs authority to confiscate any such devices found, and orders owners, managers and administrators of businesses throughout the country to hang a visible sign on the exterior of their operations that reiterates the ban.

While the law does not explicitly say which establishments in Panama must put up a sign, Sánchez says that this applies to locations where e-cigarettes and similar devices were previously sold, such as smoke and tobacco shops, as well as those where they are most often consumed, such as restaurants, bars, hotels, cafés and government buildings.

He said that the prohibition signs are now seen in many locations in Panama, such as bars and restaurants, and are increasingly present in places such as museums, theatres and schools. He added they are not yet hanging in the windows of all establishments in the country, particularly not where use of the products would be atypical, such as clothing vendors or pet stores.


Is legislation fuelling an illicit market?

Panama is one of several countries in Latin America – including MexicoArgentina and Venezuela – that have passed stringent legislation since 2022 to limit the use, sales, import and export of e-cigarettes, vapes and heated tobacco devices. Many regional vape advocacy groups say that the passage of such legislation creates an illicit market for the products within their countries.

But representatives of Panama’s Health Ministry (Minsa) expressed support for the legislative ban on e-cigarettes and similar devices.

“The first thing that we need to know about electronic cigarettes is that they are used to [consume] nicotine, and we all know the adverse effects that nicotine use has,” said Elsa Arenas, who works in Minsa’s Department of Non-Transmissible Diseases. She added that nicotine has “tremendous effects on the lungs and the brain”.

There is no defined timeline for a response from the Supreme Court as it reviews the lawsuit, Sánchez told ECigIntelligence. He said the process can take up to a year or more before a ruling.

– Adam Williams ECigIntelligence contributing writer

Photo:  Yosi Bitran