COLOMBIA Trends and Developments Contributed by: Juan Carlos Uribe and Sandra Ávila-González, Triana, Uribe & Michelsen
As electronic cigarettes are regulated under the Con - sumer Protection Statute, before any more specific regulations, the Superintendence of Industry and Commerce initiated a series of investigations into Brit - ish American Tobacco Colombia SAS, LifeTech SAS and Grupo DYI SAS. The basis of the investigation was that electronic cigarettes are sources of nicotine and other compo - nents harmful to health, where the Consumer Pro- tection Statute establishes that all risks must be dis - closed. Initially, the companies were fined, based on advertisement regulations, amounts of USD319,000, USD59,000 and USD5,000, respectively. The subsequent legal decision was based on the fact that the packaging, containers and advertising of these products lacked warnings about contraindica - tions in relation to the health of consumers. According to the initial decision, all providers of electronic ciga - rettes must fulfil the following requirements. • Supply information in a clear, timely, sufficient and precise manner, in Spanish, regarding all products offered through either a website or advertising pieces issued physically or digitally by marketers. • Inform consumers that electronic cigarettes contain nicotine salts and vaping liquids, which are harmful products. This information must be provided in fully legible characters on labels, containers, packaging or an insert. Moreover, the harmful effects must be described, as well as the conditions or indications necessary for correct use and any contraindica - tions. • Ensure that future physical or digital advertising clearly warns the public about the harmfulness of the components of vaping products, specifically nicotine salts and vaping liquids, as well as regard - ing the need to consult the list of conditions or indications for correct use and contraindications. Nonetheless, the decisions were subject to appeal. Indeed, British American Tobacco Colombia SAS filed an appeal, but the resolution issued in response thereto left some uncertainties. The appeal decision was as follows.
“With respect to the survey results, the Directorate considered that they were not consistent, as they reflected different interpretations of the information provided. However, this Chamber departs from the lower court’s decision, considering that there is no legal obligation for providers of electronic nicotine delivery systems (ENDS) or electronic non-nicotine delivery systems (ENNDS) regarding the manner in which they must disclose the nicotine content, which makes it difficult to determine whether the information was timely, suf- ficient, accurate, and clear”. Thus, it became clear that a regulation for ENDS was overdue. It is very important to point out that, with regard to product information, the purpose is to ensure that the consumer is duly informed. To achieve this objective, manufacturers and distributors have a basic duty to guarantee that consumers have all the necessary information to make duly informed choices among the variety of goods offered in the market, and thus to make appropriate consumption decisions. In the words of the Constitutional Court, the legal sys - tem seeks to “compensate for, through various meas - ures, the disadvantaged position of consumers and users – who generally possess limited knowledge and capabilities – in relation to the forces of production and commercialisation of goods and services neces - sary for the satisfaction of their material needs”’. ENDS, similar non-nicotine systems (SNNS), heated tobacco products (HTPs) and oral nicotine products (ONPs) – and their compounds – are harmful to health. There is no doubt as to the obligation to disclose their harmfulness, as well as the conditions of use and con - traindications. Regarding the use of discretionary language, some health effects may depend on a series of variables, which could be known or unknown. It is reasonable to expect this situation to be communicated in a clear, truthful and unambiguous manner. In advertisements from British American Tobacco Colombia SAS, it was observed that, in some cases, categorical language was used with respect to certain risks (“flammable”, “reacts violently with water”, “causes burns”, etc)
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