Landmark Decision Expected on Advertising Prohibitions

Mexican official Norm NOM-051-SCFI/SSA1-2010 was modified in 2020 to include a requirement for prepackaged foods to include in their front labeling warning seals where the product is considered as having high amounts of calories, sugar, trans fats, saturated fats, sodium or sweeteners. 

Article 4.1.5 was modified, to read as follows: 

4.1.5 Pre-packaged products bearing one or more seals of warning of the reference that they contain sweeteners must not:  a) include in the label characters for children, animations, cartoons, celebrities, athletes or mascots, interactive elements such as visual-spatial games or digital downloads that, directed to children, incite, promote or further consumption, purchase or choice of products with an excess of critical nutrients or sweeteners and b) make reference in the label to element that are foreign to the product with the same ends as the prior sentence.  The application of this article must be made according to what is established in other applicable legal provisions. 

This prohibition was complemented on Sept. 8, 2022, through a publication in the official gazette of a modification to the Health Law Regulations on Advertising, which established a prohibition for any advertisement of pre-packaged food and drink products to contain the same references to animations, cartoons, and celebrities, among others.

This latter publication also included a bureaucratic requirement to obtain permits before launching advertising materials for any pre-packaged food or drink products containing warning seals.  

Several companies have filed judicial actions against these prohibitions, and some have obtained protection at the District Court level.  The Supreme Court will soon study the matter, and the analysis is expected to dictate how future actions will fare.

The argument for the prohibition is based on article 4 of the Mexican Constitution, establishing the human right to health;  however, several arguments have been raised challenging the constitutionality — and rationality — behind the prohibition. Here are the main ones:

• A violation to the Constitutional right of self-determination of oneself/personal freedom vs the right to health as mandated by the state. 

Plaintiffs argue that the restrictions on using cartoons, athletes, and similar. are an overstepping of the obligation by the Mexican state to observe the right to health, as this right cannot be interpreted as the capacity to coerce people into healthy lifestyles; in other words, since the state hast not directly banned consumption of these products (as it has done in other cases, such as with e-cigarettes), it cannot overstep its scope of action in front of individual freedoms.      

• Violation to article 5 of the Constitution, which establishes the right to exercise licit trade.

The Supreme Court will have to determine whether the benefits to health derived from the restriction to use cartoons, celebrities, and others. justifies the restriction to trade, as companies are severely limited in their possibilities to market these products, and to differentiate between one another.

This analysis should also consider the individual human rights of athletes, celebrities, animators, designers, and other professionals who are affected by the prohibition.

• Violation to article 28 of the Constitution establishing the human right to intellectual property.

Intellectual property is a human right, recognized by the Mexican Constitution and by several international treaties signed by our country.  The prohibition in NOM 051 and the Health Law Regulations on Advertising can be considered as going directly against this human right, as it is limiting the use of trademarks, copyright and design rights in a broad range of products. 

• Violation to articles 6 and 7 of the constitution establishing free speech.

Plaintiffs have argued that the rights to free speech and expression of both the companies and individuals impacted by the prohibition are being infringed.

The analysis the Supreme Court will undertake must consider the proportionality test, derived from the Mexican Constitution, intended to ensure that government actions or laws do not unnecessarily infringe on individual rights and freedoms. Specifically, the proportionality test requires that any government action or law that limits individual rights must meet certain criteria to be considered constitutional. These criteria include:

1. Legitimate aim: The government action or law must have a legitimate aim, such as protecting public health, safety, or morality.

2. Rational connection: There must be a rational connection between the government action or law and its intended aim.

3. Necessity: The government action or law must be necessary to achieve its intended aim, and there must be no less restrictive means available to achieve the same aim.

4. Proportionality: The government action or law must balance the individual right or freedom being limited against the importance of the government's aim, and the limitation must not be greater than necessary to achieve that aim.

Thus, the proportionality test requires that any government action or law that limits individual rights or freedoms must be necessary and proportionate to achieve a legitimate aim. This principle is intended to ensure that government actions and laws are not overly restrictive and do not unduly infringe on individual rights and freedoms.

The upcoming landmark decision will have a broad impact on the future of advertisement and use of IP for pre-packaged food and drink products. It remains to be seen whether the Supreme Court considers that the expected benefits to health outweigh the infringement of other human rights.