March 31, 2020
On March 27, 2020 the new version of the Mexican Official Standard 051 for Prepacked food and non-alcoholic beverage products was published in the Official Gazette.
The comments made by all interested parties, the food and beverage industry and our firm among others, before the National Advisory Committee on Official Standards Regulation and Sanitary Promotion were not taken into consideration.
This approved version includes some significant modifications, which in our opinion are illegal. One of the main concerns refers to provision 4.1.5 which states that prepacked food and non-alcoholic beverage products that includes one or more warning seal or a sweetener inscription shall not include on the label childish characters, animations, animated cartoons, celebrities, athletes or mascots, interactive elements, such as visual-spatial games or digital downloads, all of them addressed to children, encouraging or promoting the consumption, purchase or selection of products having an excess of critical nutriments or for containing sweeteners, and makes reference on the label to unconnected elements of the product with the same purpose of the afore mentioned paragraph.
The published version of the amendments to NOM 051 regarding this provision 4.1.5 shall be in force as from April 1, 2021.
The provisions 220.127.116.11 to 18.104.22.168.7 and 7.1.3 and 7.1.4 which refer to the front labeling system, same that include additional nutritional information and the precautionary legends (“CONTAINS CAFFEINE, AVOID IN CHILDREN” or “CONTAINS SWEETENERS, AVOID IN CHILDREN”) shall be in force as from October 1st, 2020 in three different phases or stages, same that are established progressively and depending on the critical nutrients to be added as from October 1, 2025 and until September 30, 2023 (three years) and as from October 1, 2023 to September 30, 2025 (two years).
It must be stated that this NOM violates human rights contemplated by our Constitution, such as, freedom of profession, industry, commerce or work, information right, freedom of speech, property rights, economic rights and copyrights and contravenes provisions that preserve the use of intellectual property contained in our Industrial Property Law, Federal Copyright Law and Federal Law for Protection of the Consumer. Thus, it also violates several International Treaties of which Mexico is a party, such as Universal Declaration of Human Rights, American Convention on Human Rights, International Covenant on Economic, Social and Cultural Rights, Paris Convention, Berne Convention and Agreement on Aspects of Intellectual Property Rights Related Trades (TRIPS), as well as the provisions of the Technical Barriers Treaty (TBT) and other Free Trade Agreements (FTAs).
There is a constitutional venue to contest this NOM when entering into force or when applied prejudicially, this is, by means of an Amparo law suit same that has been developed by our firm and will be analyzed on a case by case basis.
The statutory term to file this action when this regulation enters into force is of thirty days as of the entry into force of the NOM, this is as from March 27, 2020 (date of publication in the Official Gazette).
However, it should be mentioned that due to the contingency measures adopted to prevent the outbreak of the COVID-19 virus, no procedural terms will run from March 18 to April 19, 2020 and this term of suspension might be extended. Also is important to mention, that the rules may be contested after the first application in prejudice of individuals, that is in the future and once that the NOM would be inforce and applicable.