As you may recall, on February 14th, 2014, Mexican President Enrique Peña Nieto published in the Mexican Official Gazette the following decrees: "Decree by virtue of which certain provisions of the General Health Law Regulation on Advertisement are amended, added and revoked" (Decreto por el que se reforman, adicionan y derogan diversas disposiciones del Reglamento de la Ley General de Salud en Materia de Publicidad) and the "Decree by virtue of which certain provisions of the Regulation for the Sanitary Control of Products and Services" (Decreto por el que se reforman y adicionan diversas disposiciones del Reglamento de Control Sanitario de Productos y Servicios) (jointly referred to as the "Food and Non-Alcoholic Beverages Reform").
The Food and Non-Alcoholic Beverages Reform's main objective was to set forth the following:
- That all advertisement made in national television, cable television and movie theaters, about the existence, quality and characteristics of food and non-alcoholic beverages as well as in order to promote their use, sale or consumption either directly or indirectly, will need an authorization (the "Advertisement Authorization") (Permiso de Publicidad), so long as the products do not meet the specific criteria that will be published by the Federal Commission for the Protection against Sanitary Risks (Comisión Federal para la Protección contra Riesgos Sanitarios –COFEPRIS-) (the "Advertisement Criteria").
- That Advertisement Criteria will be published in the Mexican Official Gazette and will set forth: (i) the nutrition and advertisement requirements to be met by food and non-alcoholic beverages in order to be published in national television, cable television and movie theaters; and (ii) the conditions and requirements to obtain the "Advertisement Authorization".
- That, the "Afirmativa Ficta" rule contained in section 80 of the General Health Law Regulation on Advertisement (the "Advertisement Regulation"), will not be applicable to the "Advertisement Authorization". In this regard, the Food and Non-Alcoholic Beverages Reform introduced a new paragraph to section 80 of the Advertisement Regulation (i.e. fourth paragraph) wherein it is stated that a "Negativa Ficta" rule will apply to the "Advertisement Authorization" application when the deadline that COFEPRIS has for issuing such authorization has elapsed and no authorization has been issued by the authority.
- That the advertisement of food and non-alcoholic beverages, broadcasted in national television, cable television and movie theaters that complies with: (i) the requirements set forth in section 22 of the Advertisement Regulation1; and (ii) Advertisement Criteria, will only need to submit an "Advertisement Notice" (Aviso de Publicidad).
- That advertisement of beverages added with caffeine, regulated by the Regulation for the Sanitary Control of Products and Services (the "Products and Services Regulation"), will no longer be subject expressly to comply with an "Advertisement Notice". Nonetheless, this amendment can only be interpreted in the sense that such beverages will be regulated by the Advertisement Criteria, therefore, they will need to comply with an "Advertisement Authorization" if they do not meet such criteria.
- That labelling of prepackaged food and non-alcoholic beverages, with the exception of water for human consumption, food for infants and young children, chewing gum with no added sugar, breath mints, flour with the exception of mixed flour, products and raw materials intended for the internal use and consumption of institutions, and raw materials for industrial use, shall describe in the Frontal Area of Exhibition of the product2: (i) the energy content provided by the product, expressed in kilocalories and calories; (ii) the content of saturated fat, other types of fat, sugar and sodium. In this regard, the Ministry of Health will set forth the criteria according to which the dimensions of the Frontal Area of Exhibition will be calculated as well as the criteria to be met in order to inform the aforementioned information and to determine the contents for family and portion packages (the "Frontal Area of Exhibition Criteria").
- That the labelling of food and non-alcoholic beverages will be able to include "Nutritional Distinctive Information", when the interested party requests COFEPRIS to determine whether the product complies with the nutritional criteria that shall be taken into account in order to determine the use and the procedure to be followed to be authorized. Such criteria will be issued by the Ministry of Health (the "Nutritional Criteria").
- That food and non-alcoholic beverages producers to whom the Food and Non-Alcoholic Beverages Reform applies, will have one year starting on February 15th, 2014, to modify the labelling of their products, having the possibility to request COFEPRIS a deadline extension, which shall be requested per product and only for one additional year. In the case of producers using returnable containers, they will have a 10 years' deadline (starting on February 14th, 2014) to substitute such containers but must inform COFEPRIS their progress according to the following: (i) 10% progress in 1 year; (ii) 25% progress in 2 years; (iii) 40% progress in 3 years; (iv) 60% progress in 4 years; (v) 80% progress in 5 years; and (vi) 100% progress in 10 years.
Finally, it is important to mention that the "Advertisement Criteria", the "Frontal Area of Exhibition Criteria" and the "Nutritional Criteria", were published in the Mexican Official Gazette on April 15th, 2014, through the following:
- "Guidelines containing the nutritional and advertisement criteria to be met by announcers of food and non-alcoholic beverages to advertise their products in national television, cable television and movie theaters, in terms of sections 22 bis, 79, subsection X and 86, subsection VI of the General Health Law Regulation on Advertisement", which came into force on April 16th, 2014, with the exception of the following: (i) provisions related to products considered as snacks, flavored beverages, chocolates, products similar to chocolates and confectionery products, in terms of the Products and Services Regulation, which will come into force 90 days following the next day in which the guidelines were published; and (ii) provisions related to products different to those described in subsection (i) aforementioned, which will come into force on January 1st, 2015.
- "Decree issuing the guidelines related to article 25 of the Regulation for the Sanitary Control of Products and Services to be followed by producers of prepackaged food and non-alcoholic beverages in connection with the information that must be displayed in the frontal area of exhibition of the product, as well as the criteria and characteristics for obtaining and using the Nutritional Distinctive Information described in article 25 Bis of the Regulation for the Sanitary Control of Products and Services", which came into force on April 16th, 2014.
1 Section 22 of the Regulation provides that the advertisement of food, nutritional supplements and non-alcoholic beverages, shall not: I) Encourage or promote harmful nutrition habits; II) Affirm that the product, by itself, meets the human being's nutritional requirements; III) Refer that industrialized food has either a superior or a different nutritional value; IV) Make comparisons aimed at impair natural food's properties; V) Express or suggest, either with real or fictitious characters, that consumption of the products provides people extraordinary properties or skills; VI) Associate, directly or indirectly, with the consumption of alcoholic beverages or tobacco; and VII) Declare properties that cannot be proven or that the products are useful to prevent, heal, treat or cure a disease, disorder or physiological state.
2 According to subsection II Bis 1 of Section 2 of the Products and Services Regulation, added through the Food and Non-Alcoholic Beverages Reform, the Frontal Area of Exhibition of a product is defined as that area wherein it is located, among other information, the name and trademark of the product.
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.