Agustin Azcatl Romero
Patent Division Partner
Ortiz & Ramirez Abogados
Expert Contributor

Communication Challenges Interfere With NOM-051's Warnings

By Agustin Azcatl Romero | Mon, 09/07/2020 - 09:19

In November 2019, the Ministry of Health issued a decree establishing new provisions on the labeling of food and non-alcoholic beverages with the objective of establishing a warning system that allows consumers to easily know those ingredients that could be critical to their health. Hence, the Ministries of Economy and Health published the amendments to NOM-051-SECOFI-SSA1-2010 (NOM-051). 

The publishing of these modifications in NOM-051 has therefore strongly impacted the pre-packaged food and non-alcoholic beverage industries. Especially in the way they communicate with their customers, since such changes prevent them from using certain communication tools like:

  • include in the label children's characters, animations, cartoons, celebrities, athletes or pets.
  • interactive elements, such as, visual-space games or digital downloads, that, being directed to children, incite, promote or encourage the consumption, purchase or choice of products with an excess of critical nutrients or with sweeteners. 
  • make reference in the label to elements outside it with the same purposes of the previous paragraph.

In other words, any product that contains from a seal with which the product is identified with EXCESS CALORIES, EXCESS SUGARS, EXCESS SATURATED FAT, EXCESS TRANS FAT and/or EXCESS SODIUM, or that includes some cautionary legend such as: CONTAINS CAFFEINE TO AVOID IN CHILDREN, CONTAINS SWEETENERS-NOT RECOMMENDED IN CHILDREN, will have to comply with the mentioned restrictions.

With such seals and precautionary statements, the authority seeks to warn the consumer in a simple and visible way about the content of critical nutrients and ingredients that represent a health risk in excessive consumption in products that display such seals. 

Thus the product that contains one or up to five seals will affect the consumption of those products. Designers therefore need to innovate in the way they present products to the consumer and be able to distinguish between similar products as well. It should also be noted that the amendments to NOM-051 do not prevent the use of product-related trademarks or distinctive signs but restrict or limit that they should not be used on the packaging of the products. The new marketing strategies in shelves, events and in mass advertising in general will therefore bring new ideas and new ways of presenting the product.

These new forms of distinction must be protected by the tools provided by industrial property, such as the protection of commercial image (TRADEDRESS), in which not only the product 's brand is protected but also the protection of what allows the product to be distinguished from image elements. Including, among other things, the size , design, colour, shape layout, label, packaging, decoration or any other which, when combined, distinguishes the product in the market. This is what is regarded as an accumulated product protection, having more than one of the protective figures provided by industrial property, as in this case the registration of the trademark and the image.

Another option for the industry is to transform the development of new products within its departments. Where they will become the team in charge of innovating with those seals and/or legends of caution. On the other hand, enterprises could also reduce the number of seals by developing new products with new market and regulatory characteristics.

In this sense, if companies focus on the development of new formulas, one option they have is to focus on the optimization of resources and time using the databases of the different patent offices. Where they can find new manufacturing processes, equipment, packaging systems and also know the trends of new excipients, flavors, dyes, binders, among other components. 

Besides generating new business niches with various branches with which there is currently no contact. The companies could get licenses to use patents, utility models and industrial designs. Similarly the possibility of obtaining their own patent titles, registration of utility models and industrial designs for beginning with the protection of their intangibles.

As you can see, there is a huge challenge for the food industry to communicate with its customers, given the limitations set out in the NOM-051. How to improve their products either by modifying their formulations to achieve seal reduction and warning legends, or  if they can be eliminated.  Finally , new consumer groups or market niches can also be addressed with the new formulations they may develop.

Therefore, this great effort must be protected by means of industrial property. Using the different tools that the Industrial Property Law provides. By this means enter the virtuous circle generated by industrial property, through the exclusive rights granted to the owner of the invention and / or trademark, which will always be a way to have competitive advantages in their sector. 

With these changes in regulation, it is expected that consumers will be able to obtain more information and make decisions in favor of their health when buying consumer products. 

Photo by:   Agustin Azcatl Romero