More obesity-related regulations in Mexico: a step too far?

Introduction
Background
Amendments to RCSPyS
Amendments to RLGSMP
Comment

Introduction

Mexico has become one of the most burdensome jurisdictions in Latin America in the context of food and beverage labelling requirements. The federal government has increasingly been using the country's obesity problem, which it has been experiencing for the past few years, as a justification for such overregulation. However, it has failed to identify the underlying cause of the situation; instead, it has imposed restrictive measures that, in many cases, constitute violations of human rights and international treaties and agreements.

Background

The most recent provisions in this regard were published in the Federal Official Gazette on 8 September 2022. Amendments were made to:

• the Products and Services Health Control Regulations (RCSPyS); and
• the General Health Law Advertisement Regulations (RLGSMP).

These amendments directly relate to two earlier amendments:

• On 8 November 2019, an amendment to the LGS relating to obesity and the labelling of food and non-alcoholic beverages was published, establishing an obligation to further publish amendments to the corresponding regulations, which should have been issued during the 180 calendar days following its publication.
• On 27 March 2020, an amendment to NOM-051, which governs the labelling of food and beverage products, was published in the Federal Official Gazette.

Amendments to RCSPyS

The most relevant amendments and additions to the RCSPyS include:

• new definitions of "critical nutrients", "portion", "pre-packaged or packaged" and "front labelling system";
• the possibility for the Ministry of Health (SS) to request information regarding the biological, chemical, physical and nutritional specifications of raw materials and products, as well as technical issues relating to their processing;
• a prohibition against the inclusion of cartoon or child characters, animations, celebrities, athletes, mascots or interactive elements (eg, visual-spatial games or digital downloads) aimed at children that incite, promote or encourage the consumption, purchase or selection of products bearing labels that include warning icons;
• the obligation for the SS to publish the portions and the units of measurement that should be used as reference for food and non-alcoholic beverages;
• the possibility for the SS to determine the additives, ingredients or substances that may represent a health risk – in which case, the products must include a warning declaration about their consumption. This obligation already exists and is in force through various administrative guidelines and NOM-051;
• a prohibition against the inclusion of recognition by entities or professional associations on labels including warning icons; and
• a new classification of food modified in its composition, limiting it to those with lesser content or the elimination of some nutrients such as fat, gluten and lactose. A future amendment to the applicable Mexican official standard is expected.

The amendments to the RCSPyS came into force on 9 September 2022.

Amendments to RLGSMP

The most relevant amendments and additions to the RLGSMP include:

• a prohibition against the inclusion of recognition by entities or professional associations of the publicity of products bearing warning icons;
• a requirement to obtain an advertising permit from the Federal Commission for the Protection against Sanitary Risk (COFEPRIS) for products subject to the front labelling system, including for ads transmitted via the Internet or other digital platforms, as well as the need for COFEPRIS to issue guidelines.
• a prohibition against the inclusion of cartoon or child characters, animations, celebrities, athletes, mascots or interactive elements (eg, visual-spatial games or digital downloads) aimed at children that incite, promote or encourage the consumption, purchase or selection of products bearing labels that include warning icons;

The amendments to the RLGSMP will take effect within 180 calendar days of its publication, and the modification to the guidelines must be published within the following 90 days – that is, by 7 December 2022.

Comment

These amendments increase the administrative burden for companies in the food and beverage industry that import and market products in Mexico regarding the labelling requirements with which they must comply. The amendments also restrict, in many cases, the possibility for such companies to use their intellectual property and information.

The restrictions may be considered contrary to human rights and principles regarding freedom of speech and professional activity, among several other constitutional violations.

It appears that the Mexican federal government is in a crusade against the formal food and beverage industries, using as an excuse the right to a healthy environment and living and imposing restrictions and limitations rather than establishing the full information and improving education.

For further information on this topic please contact Maria Luisa Mendoza, Ana Marcela Rodriguez Coppola 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.