Mexico, has the first place in overweight and childhood obesity in the world since 2017 according to UNICEF data; undoubtedly, a serious national health problem that remained officially unattended for decades by the government, which, finally, seeks to address through important modifications to the Official Mexican Rule (NOM-051-SCFI / SSA1-2010 (NOM 051 ) concerning the “labeling of prepackaged foods and non-alcoholic beverages”, modifications that were approved last Friday January 24, 2020 by the National Ruling Consultative Committees of the Economy Ministry and the Regulation and Health Promotion of the Federal Commission for Protection against Health Risks (COFEPRIS), fulfilling the Mexican General Health Law, offering citizens the right to health protection.
Inspired by the Chilean labeling Law No. 20.606 that became into force on 2016 which main objective was to reduce the worrying obesity number of cases faced by the country by indicating in all pre-packaged food containing a high portion of calories, salt, fat, sugar and other ingredients the indication of “HIGH IN”, the Mexican government replied said system chasing the same objective.
The approved labeling system, which will be of general application for all pre-packaged products manufactured in the country or abroad but commercialized in our country, seeks to clearly inform consumers about the content of critical nutrients that pose risks to their health in excessive consumption, by indicating the complementary nutritional and nutritional information that exceeds the percentages of SDI (Suggested Daily Ingestion) or RDI (Recommended Daily Ingestion) of free sugars, fats or sodium recommended by the health authorities, showing consumers in a graphic way the excess calories, added sugars, saturated fats, trans fats, sodium, as well as the content of sweeteners by means of stamps that must be indicated on the front of the product’s label.
However, the contrasting aspect of the modification of the NOM-051 approval trying to eliminate obesity and overweight of Mexican citizens through the application of the new labeling system of products of national consumption entails important affectations on the industrial and manufacturing sectors, resulting completely illegal when indicated in NOM’s section 4.1.5. the following:
“Prepackaged products that have one or more warning seals or the legend of sweeteners should not:
a) include in the label children characters, animations, cartoons, celebrities, sportsmen or pets, interactive elements, such as visual - space games or digital downloads, which, being aimed at children, incite, promote or encourage consumption, purchase or choice of products with excess critical nutrients or sweeteners, and
b) make reference in the label to elements outside the same with the same purposes of the previous paragraph.
The application of this numeral must be done in accordance with the provisions of other applicable legal systems”.
The last, being traduced to the fact that Intellectual Property Rights which legally were acquired by innumerable people and entities for the use of device trademarks through the issuance of registration certificates granted by the Mexican Trademark Office or copyrights’ reserva granted by the Mexican Copyright Office, which may relate to characters, animations, cartoons, celebrities, sportsmen or pets, interactive elements forbidden to be included in any prepackaged food containing one or more seals within its label.
Such prohibition represents a clear infringement of Industrial Property rights, leaving trademark’s holders unprotected and in absolute inadvertence of its IP rights foreseen by the Copyrights Mexican Law and Mexican Industrial Property Law which grants the right of use and registration for “trademarks”, to “ figurative elements and color combinations, as well as the image elements, including, among others, the size, design, color, layout of the shape, label, packaging, decoration or any other that when combined, distinguish products or services in the market” among others, repressing food’s producers and distributors of national and foreign companies to legally advertise and commercialize its goods opening the possibility of decreasing in considerable quantities, or even in many cases discontinuing its commercialization in the country.
It is important to point out that regardless of the illegality of the NOM-051 amendment in which the legality principles and hierarchical regulations are clearly infringed by disregarding the Industrial property rights conferred by the Mexican Industrial Property Law, the implications of the prohibition indicated by NOM- 051 in its numeral 4.1.5. not only represent serious affectations in the industrial and manufacturing field, but also in commercial, economic and marketing sectors, devaluing intangible assets such as "trademarks" of people and/or legal entities, with the prohibition of use them exercising its previous acquired rights.
Under this scenario of uncertainty, unprotection, illegality and industrial affectation represented by the NOM’S amendment for domestic and foreign industrialists who seeks the legal and free use of their trademarks in the commercialization of products whose label implies the stamping of one or more seals, it will be accurate that industrials or companies defend the protection of their industrial property rights, by appealing the Official Mexican Rule in the aforementioned numeral, or, to particularly challenge said Official Rule through judicial remedies so the Mexican Courts can analyze its validity or constitutionality.