In Mexico, a reform project is being discussed that contains restrictive measures for the advertising and marketing of products containing tobacco.
July 15, 2022
On May 26th, 2022, the National Commission for Regulatory Improvement (CONAMER), published the preliminary draft of the “Decree amending, adding and repealing various provisions of the Regulations of the General Law for Tobacco Control”.
The reform project prohibits any form of advertising, promotion and sponsorship of products made with tobacco, directly or indirectly, through any means of communication and broadcasting, including print and sound media.
The proposal also prohibits the sale of products containing tobacco through platforms, digital applications, or streaming services, where electronic marketing or intermediation is allowed. It furthermore prohibits direct or indirect displays of the product that allows the consumer to observe or physically take it.
Moreover, the reform project prohibits the use of logos, trademarks or “brand elements” of tobacco products, as well as for non-tobacco products that include distinctive graphics, design aspects, slogans, sale messages, color or color combinations that relates to tobacco products.
The abovementioned measures that are proposed implemented in the regulation of the law, limits the freedom of trade for various activities, as they represent unnecessary obstacles to the free trade. They are furthermore incompatible with International Treaties, as they lack regulatory coherence with some laws, among others the Federal Law for the Protection of Industrial Property by prohibiting the use of trademarks and slogans. Moreover, the proposed measures invade powers that relates to other authorities, as well as disrespects the hierarchy of laws.
Even though this proposal addresses a legitimate public health concern, our legal framework and international commitments must be taken into consideration, to maintain a healthy economic competition, and fair and free market that respects the rights of the obligated subjects, including the right to free development of personality and self-determination for individuals.
OLIVARES have participated in the discussion by submitting very specific comments on CONAMER proposal, and we are highly attentive to the development and eventual implementation, to best advise our clients on how to file the appropriate constitutional actions against it, as it is expected to be published in the coming weeks.
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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.
Victor Ramírez is co-leader of OLIVARES’ trademark practice group, focusing chiefly on counseling, negotiating and prosecuting Industrial Property disputes (nullity, caducity and infringement proceedings) before the Mexican Patent and Trademark Office (IMPI).