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General product obligations
What are the basic laws governing the safety requirements that products must meet?
Safety requirements for general products in Mexico are governed by the Federal Consumer Protection Law and the Federal Standards Law. Also, the Federal Standards Act establishes that the safety requirements must comply with the Mexican Official Standards, called NOMs, which are technical rules issued by the Ministry of Economy and provide further details to the requirements of products on an industry-oriented basis.
Also, specific provisions apply regarding safety requirements of food and medicines, including the General Health Act and its rules.
What requirements exist for the traceability of products to facilitate recalls?
There are no specific requirements for the traceability of products.
What penalties may be imposed for non-compliance with these laws?
If a product does not meet the safety requirements, the Federal Consumer Agency can impose administrative sanctions and other measures, including issuing warnings and interim remedies, such as fines, temporary or permanent closures, administrative warrants for up to 36 hours of detention and, finally, the suspension or revocation of the relevant governmental licences.
Any affected consumer can file a claim before such Federal Consumer Agency, in which the manufacturer, distributor, importer or seller of the defective product must reimburse the consumer plus a bonus of up to 20 per cent of the product price.
Notwithstanding the above, any affected party can also file a civil or commercial claim regarding the defective products against the manufacturer. In such claims, the available remedies include indemnification of damages and lost profits, as well as moral damages.
Also, if the failure to comply with the relevant safety requirements of a product is the direct cause for harm or death of a person, criminal liability can also be claimed against the manufacturer.
Reporting requirements for defective products
What requirements are there to notify government authorities (or other bodies) of defects discovered in products, or known incidents of personal injury or property damage?
The Federal Consumer Protection Law provides that in cases where a product can harm or jeopardise the life of a consumer, the manufacturer must give notice to the Federal Consumer Protection Agency.
Notification criteria and time limits
What criteria apply for determining when a matter requires notification and what are the time limits for notification?
There is no specific provision in the Federal Consumer Protection Law or in the Federal Standards Act governing the requirements for the notification or its time limits, however, we deem that such notification should be made as soon as possible and provide such agency with all the available data to coordinate a recall.
To which authority should notification be sent? Does this vary according to the product in question?
For products in general, the relevant authority is the Federal Consumer Protection Agency and, regarding drugs or food products, it must be sent to the Federal Commission for the Protection against Sanitary Risks.
What product information and other data should be provided in the notification to the competent authority?
There is no specific regulation regarding the contents of the notification, but we deem that said notification should provide all available data that helps to coordinate the recall of the products.
Obligations to provide updates
What obligations are there to provide authorities with updated information about risks, or respond to their enquiries?
The Federal Consumer Protection Agency can request any entity with the information about a product that may result in harm to the life or health of a consumer.
What are the penalties for failure to comply with reporting obligations?
Administrative penalties include fines, temporary or permanent closure of establishments or businesses, administrative detention for up to 36 hours, suspension or revocation of the relevant governmental licences.
When determining the penalty to be imposed, the Federal Consumer Protection Agency must take into account the damages caused by the breach, if such action was intentional and if there were any previous incidents.
Is commercially sensitive information that has been notified to the authorities protected from public disclosure?
Commercially sensitive information is considered confidential pursuant to article 113 of the Federal Law for Transparency of Public Information. As such, any authority has the legal obligation to safeguard the confidentiality of such information.
Use of information in prosecution
May information notified to the authorities be used in a criminal prosecution?
Yes, if the information provided to an administrative authority is related to a criminal action, the authority has the legal obligation to notify the public prosecutor, which has the legal capacity to use said information as evidence in a criminal prosecution.
Product recall requirements
What criteria apply for determining when a matter requires a product recall or other corrective actions?
Although there is no specific provision governing the criteria for a product recall or corrective actions, if a product may harm or jeopardise the life of a consumer, a product recall will be required.
What are the legal requirements to publish warnings or other information to product users or to suppliers regarding product defects and associated hazards, or to recall defective products from the market?
Pursuant to the Federal Consumer Protection Law, the supplier or manufacturer must provide the consumers with the specific warnings in relation to any product that is considered dangerous. These warnings should include information on:
- the product’s harmful characteristics;
- the product’s recommended use or application; and
- the potential effects of the product’s use or application outside the recommended guidelines.
Are there requirements or guidelines for the content of recall notices?
There are no specific guidelines for recall notices in Mexico.
What media must be used to publish or otherwise communicate warnings or recalls to users or suppliers?
The Federal Standards Act provides that, in the event of a defective product which may harm or jeopardise the life of a consumer, the Federal Consumer Protection Agency has the legal capacity to request the immediate diffusion of such information to any mass media entity.
Do laws, regulation or guidelines specify targets or a period after which a recall is deemed to be satisfactory?
There are no specific guidelines for recall notices in Mexico, however, we deem that the recall will last until all products considered harmful to a consumer are no longer in the market.
Repair and replacement
Must a producer or other supplier repair or replace recalled products, or offer other compensation?
Yes, pursuant to the Federal Consumer Protection Law, consumers are entitled to the substitution of the product or the return of the amount paid against the delivery of the product acquired and/or that the affected customer be reimbursed with the cost of the product, plus a bonus of at least 20 per cent of the product or service price.
What are the penalties for failure to undertake a recall or other corrective actions?
If a manufacturer doesn’t recall a product or fails to take corrective actions, it will be subject to the administrative penalties described in question 3, as well as the civil liability derived from the breach of such an obligation.
What powers do the authorities have to compel manufacturers or others in the supply chain to undertake a recall or to take other corrective actions?
The Federal Consumer Protection Agency may exercise the corrective measures set forth in article 25 of Federal Consumer Protection Law, which includes warning orders and fines; also, it has the legal capacity to order interim remedies such as:
- impoundment of containers, goods, product and transportations;
- seizure of goods or products;
- order the suspension of the marketing of the products; and
- placement of closure seals.
Can the government authorities publish warnings or other information to users or suppliers?
Yes, pursuant to article 98 Bis of the Federal Consumer Protection Law, the Federal Consumer Protection Agency has the legal capacity to order to inform consumers, either individually or collectively, including through mass media, the actions or omissions of the supplier that affect the interests or rights of consumers.
Can the government authorities organise a product recall where a producer or other responsible party has not already done so?
Yes, the Federal Consumer Protection Agency is required by law to issue and coordinate such recall if it has knowledge of any risks to the life or health of the consumers produced by a defective product.
Are any costs incurred by the government authorities in relation to product safety issues or product recalls recoverable from the producer or other responsible party?
Pursuant to article 57 of the Federal Standards Act, when a official notice has been issued forbidding to sell a defective product, the responsible party for breaching the relevant Mexican Official Standard is bound reimburse the value of the product, or provide a new product which complies with Mexican Law, as well as all costs made to treat, recycle, or dispose any hazardous product, according to the relevant laws.
How may decisions of the authorities be challenged?
Administrative decisions can be challenged either through an administrative review which will be decided by the same authority or through a nullity claim filed before the Federal Administrative Justice Court (administrative court).
If the Federal Administrative Justice Court rules against the claimant, such resolution can also be challenged by means of an amparo (constitutional review process) filed before the federal judicial courts.
Implications for product liability claims
Implications for product liability claims
Is the publication of a safety warning or a product recall likely to be viewed by the civil courts as an admission of liability for defective products?
No. In a civil proceeding, any confession must be made before the court, however, the civil court may take such publication as evidence of a possible breach of Mexican standards.
Notwithstanding the above, the claimant in a civil proceeding must also probe that such a breach was the direct cause for the alleged damage to be awarded with an indemnification.
Can communications, internal reports, investigations into defects or planned corrective actions be disclosed through court discovery processes to claimants in product liability actions?
There is no discovery process in Mexico and although civil courts are entitled to request any relevant information or identifiable document to a party, civil courts don’t have the legal capacity to order a search warrant.
The legal remedy if a party fails to present the requested document is to hold the rebel party as admitting the facts that the counterparty is trying to prove with the document.
Updates and trends
Updates and trends
Updates and trends
The Mexican Constitution was amended in relation to civil and commercial proceedings and the Mexican General Congress will issue a new National Civil Procedures Code that will replace the civil procedures code of each Mexican state.
This new National Civil Procedures Code may introduce new remedies and change the civil liability regarding product recalls.