Food, Beverage Labeling Standards Contradict Mexican Law

• Published date: 09 September 2022
• Subject Matter: Consumer Protection, Intellectual Property, Media, Telecoms, IT, Entertainment, Food, Drugs, Healthcare, Life Sciences, Trademark, Advertising, Marketing & Branding, Food and Drugs Law, Dodd-Frank, Consumer Protection Act
• Law Firm: OLIVARES
• Author: Mr Armando Arenas

In recent years, we have witnessed a legislative trend in various countries that consists of incorporating provisions aimed at implementing front labeling systems for food and non-alcoholic beverages into national legislation. The aim is to fight obesity and poor nutrition through the use of warning seals or traffic light-style notices that inform that a certain product exceeds acceptable limits for calories, sugars, sodium and fats. Likewise, these laws have incorporated prohibitions on the use of children's characters, animations, cartoons, celebrities, athletes or mascots, interactive elements, such as visual-spatial games, or digital downloads aimed at children.

Similarly in Mexico, this labeling system was implemented through the Official Mexican Standard NOM-051- SCFI/SSA1-2010, "General labeling specifications for prepackaged food and non-alcoholic beverages ' commercial and health information," in article 4.1.5, which entered into force on Oct. 1, 2020. These prohibitions have caused great controversy and discomfort in the food and beverage industry. Although the goal pursued is beneficial for the population, the restrictions directly conflict with various laws and international treaties related to the protection of intellectual property, copyright and trade, all of them hierarchically superior, transgressing the fundamental principle of reserve of law, since a hierarchically inferior law, such as an official Mexican standard, is intended to go beyond what the laws or treaties state, thus violating the principles of legality, legal order, overstepping of the norm and legal certainty.

Indeed, through an official Mexican standard, whose function is to regulate technical elements and establish the characteristics that certain processes or services must meet, the legitimate use of rights recognized in various legal provisions is prohibited. The main provisions are:

• Federal Law for the Protection of Industrial Property, since the use of registered trademarks containing designs of children's characters or mascots is prohibited.
• Federal Copyright Law, since the exploitation of works is prohibited. Owners of economic rights have the exclusive right to authorize and/or prohibit the exploitation of their work therefore, a restriction to incorporate such work in labels and advertising contradicts said law.
• Federal Consumer Protection Law, since it prevents carrying out commercial practices duly legislated, such as advertising and promotions, since the...