Law 20.606, Supreme Decree No. 13/2015 and Law 20.869 (the Food Products Regulation) establish certain prohibitions and obligations regarding food products that qualify as being "high in" something (for example, high in calories, sugar, sodium or saturated fats).

Changes to Advertising Rules

The main change provided by this regulation is the prohibition on advertising these "high in" products to children under 14 years old.

The Food Products Regulation provides some criteria to determine in which cases it may be understood that an advertisement for such products is aimed at children under 14 years old. These include: the use of characters and child figures, animations, cartoons, toys, children's music, including people or animals that attract the interest of these children or the presence of statements or fantasy arguments regarding the product or its effects, children's voices, language or children's expressions or of their everyday life situations.

Why Is This Important?

The health authority in charge of the enforcement of the Food Products Regulation has artificially extended the prohibition of advertising to the prohibition of the use of trademarks in the product's packaging, although this rule does not prohibit the use of trademarks.

As trademark experts agree, the health authority makes a mistake in this interpretation, since (i) trademarks do not constitute advertising; (ii) it does not consider the use of trademarks for their natural purpose, namely to distinguish a particular product from other products in the same category; and (iii) the prohibition of using a trademark based on the Food Products Regulation would infringe the property rights associated with the trademark registration.

However, there is an important subsequent risk that the health authority interpretation of the Food Products Regulation implies a risk of a new policy of plain packaging for food products in Chile.

In particular, we have seen some "sanitary proceedings" (under which infringements of the Food Products Regulation will be sanctioned according to the Tenth Book of the Health Code) where the health authority has argued that colors, names and product shapes, among other things, could be attractive to children under 14 years old and, consequently, infringe the Food Products Regulation.

This last criterion has been confirmed by the Guidelines of Inspection – which sets out the general guidelines to inspect the Food Products Regulation, the last edition of which was published in October 2017 – where the Health Ministry confirms that colors, shapes and even a photo of the product could be considered as advertising to children under 14 years old.

In sum, both industry and trademark practitioners are concerned regarding the extensive criteria being applied by the health authority.

Originally published in Wolters Kluwer when you have to be right. Whitepaper 2018

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