Introduction
New publicity requirements
Comment


Introduction

During the past few years, Mexico has taken one of the most restrictive positions worldwide in connection with food and beverage labelling. The government has established a considerable number of restrictions on the packaging, labelling and, in some cases, technical characteristics and nature of food and beverage products. It has been argued that these restrictions are an efficient instrument to curtail the obesity emergency that has affected the Mexican population for several years.

Many of the strategies and amendments that have been implemented to date may be considered as contrary to constitutional principles, human rights and even commercial treaties and agreements executed by Mexico. However, the federal government has continued to target the industry. Recently, regulatory efforts have focused on the publicity of these products, rather than on the products themselves. This situation complicates the sales of these kind of products and may result in potential abuse and corruption by the competent officials.

New publicity requirements

On 8 September 2022, the Ministry of Health published various amendments to the General Health Law Regulations in Publicity Matters in the Federal Official Gazette. The amendment to article 22bis establishes that, as of 8 March 2023, food and beverage products with a front labelling system (as established in Mexican Official Standard (NOM) 051) will need to acquire a publicity permit from the Federal Commission for the Protection Against Sanitary Risks (COFEPRIS) in order to advertise on television, in cinemas, on the internet and through other digital platforms.

The products affected are those that, due to their nature, must include information relating to critical nutrients or other warnings on their labelling, as set forth by NOM-051. Publicity subject to the permit requirement is any publicity on television, in cinemas, on the internet or through any other digital platform that refers to the product's existence, quality or characteristics or promotes its sale and consumption.

The health authorities were granted a 90-day period to publish specific guidelines covering the issuance of such permits.(1) These guidelines should be considered as the basis applicable to food and non-alcoholic beverages, as well as for the purposes of the issuance of the corresponding permits. This period elapsed on 30 January 2023; so far, the guidelines are still yet to be published – not even a preliminary draft has been filed with the Federal Commission for Regulatory Procedures. It is therefore highly unlikely that the guidelines will be issued prior to the date that the compulsory permit requirement comes into force. In any case, they would be illegal due to the lack of a proper integration procedure.

Based on the amendments, COFEPRIS will have a 20-working-day period to issue the corresponding permits – that is, a month following filing of the corresponding request. If the authorities issue no response within this timeframe, the permit will be considered to be denied.

Comment

This situation represents a challenge for the food and beverage industry. Preparing a publicity campaign for such products without the guidelines will be complex, and it is unclear whether existing publicity will be considered as subject to a permit due to its prior transmission.

The food and beverage industry faces a number of other challenges, resulting from unanswered questions about whether there will be any extension to the date of entry into force of the amendments and whether any temporary exemptions will be granted. It remains to be seen how the implementation of the new restrictions will evolve – only then will it be possible to establish whether the changes are truly favourable for the regulation on the consumption of these types of foods and beverages.

For further information on this topic please contact Laura Sánchez Barrón, Andrea Escorza Aguilar or José Alberto Campos Vargas at Sanchez-DeVanny Eseverri SC by telephone (+52 55 5029 8500) or email ([email protected], [email protected] or [email protected]). The Sanchez-DeVanny Eseverri SC website can be accessed at www.sanchezdevanny.com.

Endnotes

(1) Guidelines regarding nutritional criterion and publicity applicable to food and non-alcoholic beverages publicity in open and restricted television and cinemas, in accordance with the General Health Regulations in Publicity Matters articles 22 Bis, 79, section X and 86, section VI.