Legal Background on the New Food and Beverage Labeling

The initiative to modify the General Health Law on the subject of food and beverages labeling aims at having clear visible warnings regarding the products’ nutrients and ingredients that could pose a health risk. This applies to any pre-packed local or foreign product commercialized in Mexico.

These are main changes or additions intended for labels:

• A nutrition table and list of ingredients with exact sugar quantities
• Nutritional statements to regulate portions
• If a product has warning signs, it will not have medical associations’ support
• Persuasive elements to clearly warn the consumer about potential health risks
• If the product has more than one warning, it may not contain any advertising strategy, such as the use of characters, cartoons or otherwise on the packaging.

For an in-depth approach to the initiative and the changes to NOM-051, MBN approached Hogan Lovells Life Sciences expert Ernesto Algaba. According to him, adequations to labeling were necessary but these must be well-thought, ensuring that they meet their goal without generating extra costs or problems for the industry. Logistics, time and costs are the biggest challenges regarding imports and exports, particularly for multinational companies that seek to homogenize their labeling in different countries. Moreover, he explained that changes to NOM-051 go beyond labeling. “They include advertising matters and electronic media, which will have an impact on business and marketing since companies would be facing more restrictions. It is important to mention that regulations on food do not go as far as they do on medicines.”

MBN also asked Olivares’ Partner Litigation and Life Sciences Co-Chair Alejandro Luna for his opinion on the matter. “This NOM violates the human rights protected by our Constitution, such as freedom of profession, industry, commerce or work, information rights, freedom of speech, property rights, economic rights and copyrights,” he said, especially referring to the prohibition on the use of characters, animations, animated cartoons, celebrities, athletes or mascots, interactive elements such as visual-spatial games or digital downloads that encourage or promote consumption. “(These changes) contravene provisions that preserve the use of intellectual property contained in our IP Law, Federal Copyright Law and Federal Law for Protection of the Consumer. It also violates several international treaties to which Mexico is a party.”

The new labeling regulation was pushed back from October of these year to December 2020. According to the Official Gazette, before December there will be no sanctions to producers, importers or marketers that do not comply with the new regulations. After that period, authorities are expected to “administratively sanction with reprimand, fines, closure, arrest, suspension, revocation, cancellation, marketing ban, immobilization, insurance, market withdrawals and/or issuance of alerts, according to assumptions and terms identified in the preceding paragraphs and which are the subject of this Interinstitutional Agreement.”