Alberto Campos Vargas July 6 2022 Tackling obesity in Mexico: healthy versus unhealthy foods Sanchez DeVanny Eseverri SC | Healthcare & Life Sciences - Mexico Alberto Campos Vargas Healthcare & Life Sciences IntroductionObesity in MexicoFood regulations in MexicoHealth authority actionsRecommended factors for considerationIntroductionFood, as an indispensable part of life, is a relevant matter for regulation by law: it represents a human right as well as a potential risk to life and health. It appears that restrictions on products bound for human use are on the rise in Mexico and other Latin American countries. Such products include alcohol, cigarettes and products used for beauty and self-image purposes (eg, cosmetics, piercings and tattoos).An interesting phenomenon can be seen in Mexico in particular. While political rhetoric refers to individuals' freedom of choice and liberty, the reality is that an ever-increasing number of restrictions are being imposed on products and services based on the alleged principles of "health as a greater right" or "children's right to a healthy life and environment".A normal interpretation of such alleged principles would be that rather than "total and absolute prohibitions", goods and services should be regulated from a social perspective. This has not been the case for the restrictions so far, however – absolute restrictions and prohibitions on various kinds of goods and services have become increasingly noticeable. This includes, for example:the stalling of cannabis-related provisions;the absolute prohibition of vapes and nicotine products (for further details, see "Mexican war on nicotine"); andever-growing restrictions on labelling and promotion in the food and beverage industries.Obesity in MexicoMexico has a significant problem with obesity and related maladies. Close to 70% of the Mexican population is overweight and a considerable percentage may be considered as obese. The obesity problem in Mexico is visible not only in urban or developed areas but also in rural or less densely populated areas of the country. Further, it seems to not discriminate between individuals in diverse socioeconomic sectors.The Mexican government has argued that one of the main causes of the obesity problem is not only the amount, but also the quality of food products ingested by the population. However, other relevant factors – such as education and physical activity – have not been addressed or considered. As a result, such factors have not been included in the actions implemented to restrict and limit the sale of food products.Food regulations in MexicoUnder the current Mexican statute, there is no specific definition of "healthy food" or the characteristics of products that can be sold under such description. Likewise, there are no clear definitions of "junk" or "unhealthy" food.Most of the existing provisions focus on the marking and labelling of products and impose limitations on the publicity of food and beverage. However, there are no specific provisions addressing the kinds of food and beverage that have a "healthy" or "unhealthy" nature.Article 4 of the Mexican Federal Constitution obliges the Mexican state to provide all individuals with the required amount of nutritious and quality food for their sustenance. Relatedly, the General Health Law is the formal law that establishes the main principles to which food and beverage products bound for human consumption are subject. The definition of "food" in the Law includes any substance or product – solid or semisolid, natural or processed – that provides nutritious elements to the human body.The definition does not differentiate between kinds of food or beverage; instead, it includes a broad definition of what must be understood as such. Several articles of the Law contemplate some express references to the quality and characteristics of food products, without establishing the general characteristics of healthy or unhealthy food products.Possibly the most significant articles in this regard are articles 114 and 115, which oblige the health authorities to implement programmes and public policies related with nutrition and the promotion of food products with nutritional content as well as the regulation of those food products that can represent a risk for the population. The health authorities must also regulate the nutritious values of food and beverage products and establish provisions to restrict their consumption when this may represent a public health risk.Further concepts regarding the nature and characteristics of food and beverage products may be found in the General Health Law Regulations for Goods and Services, which include in a more detailed manner the requirements for the manufacturing, warehousing, sale and publicity of food and beverage products, among others. The Regulations also have a greater focus on labelling and marking requirements for food products, together with some issues relating with the publicity and claims that can be made in connection with food products. The General Health Law Regulations relating to Publicity Matters also establish some restrictions on claims and potential comparisons between processed and natural foods; however, they do not provide any specific provisions as to the concepts of "healthy" or "unhealthy".In several provisions of the Law and both the Regulations, some reference is made to the "requirements" or "characteristics" that the health authorities may publish in the Federal Official Gazette. However, no publication in connection with such concept has been published to this date.In addition to the above provisions, the labelling and marking requirements are set out in a Mexican official standard,(1) which includes in various sections some references to where the use of the term "healthy" is allowed for food and beverage products. However, the provisions are mostly restrictive and do not define what a healthy product is compared with an unhealthy product.Health authority actionsThis lack of proper provisions regarding what can be deemed as "healthy" or "unhealthy" has resulted in different interpretations and abuse by the Mexican health authorities, which have restricted and forbidden certain products and imposed punishments for alleged violations relating to their use.Under the health authorities' current policies, most traditional Mexican food and cuisine would likely be deemed as unhealthy, since many ingredients contain saturated fat (lard), cheese, products with high carbohydrate content, salt, chilli (with natural occurring lead) and deep-fried foods. While the United Nations Educational, Scientific and Cultural Organization has considered such cuisine and products as a Masterpiece of the Oral and Intangible Heritage of Humanity, under the current administration, the health authorities consider them unhealthy and dangerous products.Recommended factors for considerationTo determine whether a food or beverage product should be considered as healthy or unhealthy, several factors should be considered. If a product is determined as unhealthy, such factors could be used in a legal remedy. The factors include:the percentage of nutritional value of the product, irrespective of the possible content of the so-called "critical nutrients" (eg, sodium, sugar and saturated fat);the content of ingredients that have been scientifically proven to have specific adverse effects in the human body;the potential content of contaminants or the presence of undesired elements in the product;the content of essential nutrients, rather than the presence of "critical nutrients" or specific substances or ingredients; orthe potential for addictiveness of a product based on its ingredients, additives and manufacturing aides.Notwithstanding the requirement for a more specific definition of healthy versus unhealthy food, it appears that the authorities are more focused on restricting the use of what they have arbitrarily defined as such. In particular, the health authorities have focused on various kinds of everyday processed products, largely as a result of targeting large food companies rather than considering the products' actual quality and characteristics.For further information on this topic please contact José Alberto Campos Vargas at Sanchez-DeVanny Eseverri SC by telephone (+52 55 5029 8500) or email ([email protected]). The Sanchez-DeVanny Eseverri SC website can be accessed at www.sanchezdevanny.com.Endnotes(1) NOM-051-SCFI/SSA1-2010.