On September 8, 2022, the Federal Executive ordered the publication of a Decree amending, adding, and revoking various provisions of the Sanitary Control of Products and Services Regulations, and the General Health Law Regulations in Advertising Matters and which entered into force on September 12 of the current year.
Among other changes, article 25 bis1 of the Regulations for Sanitary Control of Products and Services, establishes that the label of prepackaged food and non-alcoholic beverages that include one or more warning stamps of the front labeling system, must not contain children’s characters, animations, cartoons, celebrities, athletes or mascots, interactive elements, such as visual-spatial games or digital downloads, aimed at girls and/or boys that incite, promote or encourage their consumption, purchase or choice; nor make reference to external elements for the same purpose.
The General Health Law Regulations in Advertising Matters orders in its article 22 bis, that the Federal Commission for the Protection Against Sanitary Risks, will grant the permits and will establish the requirements and procedures of advertisement in open or restricted television, as well as in cinemas and other digital platforms of prepackaged food and non-alcoholic beverages that include warning stamps within their labels.
Article 24 bis, now adds that the advertising of prepackaged food and non-alcoholic beverages that include one or more warning stamps should not include the characters and other distinctive elements above-mentioned.
These new provisions violate human rights provided for in the Federal Constitution such as freedom of expression, work, and commerce, and contradict various provisions that protect the use and exploitation of intellectual property rights provided for in the Federal Law for the Protection of Industrial Property and prohibit the use of the rights of authors and their freedom to advertise and exploit their works.
On the other hand, it also violates the Federal Consumer Protection Law by not allowing traders to differentiate their products from those of his competitors and constitutes an unnecessary obstacle to trade, therefore, this prohibition contradicts various international treaties, all of them hierarchically superior to a regulatory provision.
These reforms are intended to complement the provisions set forth in NOM-051-SCFI/SSAA1-2010, (see bulletin dated June 10, 2020) by including them now in a Regulation to the law and limiting their advertising in electronic media and the Internet.
The amendment of reference is controversial, because even though the constitutionality in the issuance of NOM 051 is still subject to review by our Federal Courts, a new decree is now being issued that regulates the same scenario.
At OLIVARES we have actively participated in various national and international forums regarding the constitutionality of this initiative, and we continue advising our clients regarding the legal actions available against them.
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Armando Arenas joined OLIVARES in 2000 and became a partner in January 2017. He has experience working on a range of IP matters, including consulting and litigation on trademark, patent, unfair competition, trade dress protection, and misleading advertising cases before the Mexican Institute of Industrial Property (IMPI), Federal Court of Tax and Administrative Affairs (FCTA), Federal Circuit Courts (FCC) and the Supreme Court of Justice (SCJ) Regulatory Affairs and Public Acquisitions.
Alejandro Luna joined OLIVARES in 1996 and being made partner in 2005, he has been instrumental to the firm’s IP Litigation, Regulatory, and Administrative Litigation practices. He co-chairs the Life Sciences & Pharmaceutical Law industry group and coordinates the Litigation Department.
Abraham Díaz is a partner and co-chairs OLIVARES’ Privacy and IT Industry groups and has a wealth of knowledge across all areas of intellectual property (IP), with a focus on copyright, trademarks, unfair competition, litigation, licensing and prosecution matters.