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On September 8, 2022, the Federal Executive ordered the
publication of a Decree amending, adding, and revoking various
provisions of the Sanitary Control of Products and Services
Regulations, and the General Health Law Regulations in Advertising
Matters and which entered into force on September 12 of the current
year.
Among other changes, article 25 bis1 of the Regulations for
Sanitary Control of Products and Services, establishes that the
label of prepackaged food and non-alcoholic beverages that include
one or more warning stamps of the front labeling system, must not
contain children’s characters, animations, cartoons,
celebrities, athletes or mascots, interactive elements, such as
visual-spatial games or digital downloads, aimed at girls and/or
boys that incite, promote or encourage their consumption, purchase
or choice; nor make reference to external elements for the same
purpose.
The General Health Law Regulations in Advertising Matters orders
in its article 22 bis, that the Federal Commission for the
Protection Against Sanitary Risks, will grant the permits and will
establish the requirements and procedures of advertisement in open
or restricted television, as well as in cinemas and other digital
platforms of prepackaged food and non-alcoholic beverages that
include warning stamps within their labels.
Article 24 bis, now adds that the advertising of prepackaged
food and non-alcoholic beverages that include one or more warning
stamps should not include the characters and other distinctive
elements above-mentioned.
These new provisions violate human rights provided for in the
Federal Constitution such as freedom of expression, work, and
commerce, and contradict various provisions that protect the use
and exploitation of intellectual property rights provided for in
the Federal Law for the Protection of Industrial Property and
prohibit the use of the rights of authors and their freedom to
advertise and exploit their works.
On the other hand, it also violates the Federal Consumer
Protection Law by not allowing traders to differentiate their
products from those of his competitors and constitutes an
unnecessary obstacle to trade, therefore, this prohibition
contradicts various international treaties, all of them
hierarchically superior to a regulatory provision.
These reforms are intended to complement the provisions set
forth in NOM-051-SCFI/SSAA1-2010, (see bulletin dated June 10,
2020) by including them now in a Regulation to the law and limiting
their advertising in electronic media and the Internet.
The amendment of reference is controversial, because even though
the constitutionality in the issuance of NOM 051 is still subject
to review by our Federal Courts, a new decree is now being issued
that regulates the same scenario.
At OLIVARES we have actively participated in various national
and international forums regarding the constitutionality of this
initiative, and we continue advising our clients regarding the
legal actions available against them.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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