On February 14, 2014, several modifications on the Rules on Sanitary Control of Products and Services and on Advertising for Health Matters were published in the Federal Official Gazette. These modifications focus primarily on restrictions and controls to food and beverage advertising and their caloric content.
Based on these modifications, on April 14, 2014, the Guidelines for understanding the nutritional and advertising criteria that non-alcoholic food and beverage advertisers should observe to advertise their products in open and restricted television, and movie theaters, according the provisions of articles 22bis, 79 part X and 86 part VI, of the General Health Law and Regulations on advertising ("Advertising Guidelines") and the Agreement establishing the Guidelines issues in article 25bis of the Rules on Sanitary Control of Products and Services ("Labeling Restrictions") were published.
The Advertising Guidelines establish several requirements with which the advertising of certain types of food and beverages should comply to be shown in open and restricted television and in movie theaters, including schedules, audience, and notices and permits. In addition, the Labeling Restrictions establish new requirements to the marking and labeling of food and beverage products to show in a clearer manner their caloric content.
The most relevant points established in the Advertising Guidelines are:
- The obligatory nature of these Guidelines for manufacturers, marketers, and advertisers of prepackaged food and non-alcoholic beverages.
- Nutritional criteria for several types of food and beverage, based on several product categories and subcategories, as well as the content of sodium, saturated fat, total sugar, and calories for the products.
- Restrictions on the types of products that can be advertised in open and restricted television and in movie theaters, which primarily relates to the hours in which advertisements may be shown, as well as the type of program during which the advertisement may be restricted or shown.
- Requirement to present notice of advertising of products subject to the Advertising Guidelines among which are name and taxpayer identification of the manufacturer, marketer, or advertiser, and brand name of the product to be advertised.
- Cases in which foods and beverages that do not comply with the corresponding requirements should request permission to advertise.
- Evidence showing a completed assessment of the audience, if the advertising is intended for minors between the ages of four and twelve, as a basic requirement for advertising approval.
- Dates for the rulings' effectiveness, ranging in some cases from April 16, 2014, to ninety days from the publication, and in others January 1, 2015.
It is commendable that the authorities have established immediate parameters and requirements in order to enforce compliance with the various requirements set forth in the Rules on Sanitary Control of Products and Services and on Advertising for Health Matters. However, the Advertising Guidelines go far beyond the requirements and restrictions contemplated in the law and the relevant rules, for which they can be considered to be in violation of various constitutional precepts.
In addition, from a practical perspective, there are several elements left to the interpretation of the authorities, which can result in decisions contrary to previous standards.
The rulings that appear most relevant to Labeling Restrictions include the following:
- Requirement to prominently display nutritional information on prepackaged food and nonalcoholic beverages in specific formats with predetermined dimensions.
- Requirement to include within this format information regarding saturated fats, other fats, sugars, sodium, and calories, with their percentages of energy intake.
- Requirement to include the total energy intake in large packages or "family packs," which contain more than two servings of the product.
- Exceptions to compliance with these rules for specific products that do not exceed the maximum calorie content or for certain products.
- Basis for the calculation of calorie content of the products subject to these requirements, and the basis for determining the serving sizes in order to apply the Labeling Limitations.
- "Nutritional logo" that will show which products fully comply with applicable requirements for marking and labeling, as well as the requirements for the logo and requirements on requesting authorization to use the logo in the products.
- Possibility to request from the health authorities a confirmation of the criteria for applicable requirements on product categories or specific products when a particular product does not exactly fit in predetermined definitions.
- Publication of information obtained from these confirmations and approvals on the webpage for the health authority (COFEPRIS), which should be updated annually in the Federal Official Gazette with the information provided through these confirmations and approvals.
- Priority of information contained in the Federal Official Gazette in case of discrepancy between this and the information on the internet. In case of companies provided with a confirmation different than the criterion included in the Federal Official Gazette, these will be granted a oneyear period to continue using the specific criterion provided.
- Possibility to modify these Labeling Restrictions based on future modifications to the applicable Mexican Official Standards (NOM) on labeling.
- These modifications will be effective as of April 16, 2014.
The modifications to the labeling requirements for food and non-alcoholic beverages are necessary to give the consumer more clarity on the total calorie content of a product and therefore more information when choosing a product.
Notwithstanding, the form in which the Labeling Restrictions have been drafted could give rise to ambiguities and discretionary interpretations by the health authorities. In this sense, there is a risk that the requirements and characteristics of the products in to be considered within one or another category would be in different ways by the authorities, depending on criteria and points of view.
Finally, these requirements could violate the various requirements and guidelines contained in other legislation, including NOMs, Rules, and Laws, which would result in the illegality, if not the unconstitutionality, of these requirements.
We are available to address any question or request for further information on these new requirements.
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.