In a landmark ruling, the Panamanian Supreme Court has decided that the existing vape ban is unconstitutional. The ruling, which was presented by Judge Olmedo Arrocha and adopted unanimously, was passed on May 15th.
Law 315 was passed by the National Assembly in 2021 and was approved by Panamanian President Laurentino Cortizo in June 2022.
Asociación por la Reducción de Daños del Tabaquismo de Panamá (ARDT Panama), a non-profit campaign group that wants e-cigarettes to be recognized as legitimate harm-reduction devices, submitted the lawsuit.
Law 315 is an extensive vape ban. Not only did it ban the sale and import of all e-cigarette products, both with and without nicotine, but it also prohibited vaping in places where smoking is prohibited.
Additionally, it targeted one of the most common loopholes for sellers of illegal vapes: air transportation. Under Law 315, customs authorities have the right to inspect and even detain shipments that are suspected of containing e-cigarettes.
Before the law was passed, a 2014 health ministry decree1“No 27678-A CONTENIDO.” Available: https://www.gacetaoficial.gob.pa/pdfTemp/27678_A/GacetaNo_27678a_20141211.pdf had already banned the sale of vapes.
ARDT claimed the law was unconstitutional because it violated the right to health, making it impossible for Panamanian citizens to access less harmful alternatives to cigarettes. Furthermore, ARDT argues that e-cigarettes eliminate the risk of secondhand smoke, reducing the risk to family members and the general public.
However, this claim is debatable. The American Heart Association argues that “the science is still unfolding on how inhaling secondhand vapor, or aerosol, affects the body.”2T. Gunnerson, “In secondhand vape, scientists smell risk,” www.heart.org, May 31, 2022. https://www.heart.org/en/news/2022/05/31/in-secondhand-vape-scientists-smell-risk In fact, one study found that secondhand “smoke” from e-cigarettes is linked to an increased risk of bronchitis symptoms and shortness of breath3T. Islam et al., “Secondhand nicotine vaping at home and respiratory symptoms in young adults,” Thorax, vol. 77, no. 7, Jan. 2022, doi: https://doi.org/10.1136/thoraxjnl-2021-217041, especially among young adults in domestic settings.
The lawsuit focused on Article 170 of the Panamanian Constitution, which states that if a bill is objected to as a whole by the Executive, it must return to the National Assembly for a third debate. If partially objected, it must return to the second debate to address those specific objections.
According to El Capital Financiero, ARDT also alleged that the legislation was not approved through the appropriate channels4“Acogen demanda de inconstitucionalidad contra la Ley 315 que prohíbe el uso de los cigarrillos electrónicos en Panamá” Por Redacción Publicado septiembre 21, 2023. https://elcapitalfinanciero.com/acogen-demanda-de-inconstitucionalidad-contra-la-ley-315-que-prohibe-el-uso-de-los-cigarrillos-electronicos-en-panama/, raising questions about its legitimacy. Moreover, the plaintiffs alleged that the National Assembly added provisions to the report before sending it to the president, something not within the assembly’s remit.
Lastly, ARDT argued that Law 315 increased the chance of a black market for e-cigarettes, which has the potential to undermine public safety. Indeed, authorities around the world are already dealing with the consequences of the illicit vape trade, especially in the U.S. Just last year, the FDA seized 1.4 million e-cigarettes at Los Angeles International Airport as part of a three-day sting.
The Association of Smokers and Families for a Smoke-Free Panama (AFFP) and the Medicinal Cannabis Association of Panama supported the lawsuit.
Interestingly, Law 315 was one of the most comprehensive pieces of anti-vape legislation we have seen. The unanimous decision to declare Law 315 unconstitutional may open the floodgates for similar policy reversals across the globe.
