Do you already know and apply the regulatory obligations for advertising?

The Mexican government has found it necessary to dictate increasingly restrictive rules on food products’ safety, quality, and nutritional properties. This strict surveillance is due to the importance of food, understood as those substances essential to nourish the organism and maintain life, energy, and vital functions of the human being; to the relationship between health problems and unhealthy food; to the increase of obesity-related diseases and the dishonorable first place in childhood obesity and second place in adults in our country.

The main objective of food and beverage legislation and regulation is to protect the consumer and regulate supply and advertising in the food industry, companies involved in processing food raw materials, and those that package and distribute them, for the benefit of consumers. Thus, international, and national legal frameworks are expected to form the fundamental basis of an effective regulatory system for food control and the prevention of countless diseases that impact public spending.

 Food and beverage labeling

On March 27, 2020, the “Modification to Mexican Official Standard NOM-051-SCFI/SSA1-2010, General labeling specifications for prepackaged food and non-alcoholic beverages-commercial and sanitary information” was published in the Official Gazette of the Federation, which entered into force on October 1, 2020. Said Mexican official standard is responsible for establishing the commercial and sanitary information that must be contained in prepackaged food and non-alcoholic beverages of domestic or foreign manufacture marketed in Mexico and establishes a front labeling system, which must clearly and truthfully warn the end consumer about the content of critical nutrients and ingredients that represent a health risk when consumed in excess.

This labeling consists of five octagonal seals that indicate when a product contains excess calories, saturated fat, trans fat, sugar, and sodium. Also, within the regulatory elements, two cautionary legends were included regarding the content of sweeteners and caffeine, which are not recommended for children; if the product has any seal, it cannot be sold in schools or advertised to minors. Finally, it prohibits packaging containing children’s characters, cartoons, celebrities, or interactive elements aimed at children to encourage consumption.

If any prepackaged food or non-alcoholic beverage is free of warning seals and does not contain sweeteners or caffeine, it may display on its label the phrase “This product does not contain seals or legends”.

Food and Beverage Advertising

On September 8, 2022, a Decree was published in the Official Gazette of the Federation amending, adding, and repealing several provisions of the Regulation for the Sanitary Control of Products and Services and the Regulation of the General Health Law on Advertising, aligning the provisions of the Amendment to NOM 051.

These regulatory amendments and additions contemplate different advertising obligations for the food industry. Still, the most relevant is that for all those foods and non-alcoholic beverages whose labels include the front labeling system according to NOM 051, a Sanitary Advertising Permit granted by the Federal Commission for the Protection against Sanitary Risks (COFEPRIS) will be required, according to the following:

• Applies to advertising on websites and other digital platforms.
• Prohibits advertising to include seals or legends of recommendations or recognition of the product by professional organizations or associations.
• As a requirement to obtain a sanitary permit for advertising, the labels of pre-packaged food and beverages must be submitted.
• COFEPRIS must resolve the application for the advertising permit within 20 working days.

Lack of technical guidelines by the sanitary authority

 According to the Decree regarding advertising, COFEPRIS had 90 days to publish the Guidelines and administrative requirements to be complied with by the interested parties to obtain the advertising permit. Such term expired on March 7 of this year.

In an attempt to remedy the lack of Guidelines, COFEPRIS announced, through its official communication COFEPRIS-CFS-083-2023, that said legal instrument would be in the process of being drafted and that it must comply with the public consultation process in accordance with the General Law of Regulatory Improvement, and therefore urged the industry to follow the following recommendations to comply with regulatory standards:

• Continue to submit Advertising Notices for pre-packaged food and non-alcoholic beverages.
• To abide by the current provisions that are mandatory, despite the lack of secondary regulations.
• COFEPRIS is committed to presenting the industry with a “voluntary compliance” mechanism to be carried out within a “reasonable transition period.”

Despite the silence of the health authority, we trust that the recent installation of the new Advertising Advisory Council made up of academics, the media, public servants, and the business sector, will promote the analysis and issuance of clear technical criteria that will allow the effective application of the provisions on advertising, Also contributing to reducing risks to the health of the population with openness and participation of the industry, improving and facilitating processes for the processing of advertising permits, proposals for amendments to the provisions and attending to the codes of advertising ethics and above all, providing legal certainty to the sectors involved.

At ClarkeModet, we are aware of the importance of complying with food and beverage regulatory standards in Latin America. Our commitment is to provide comprehensive solutions and regulatory services for companies in the sector, helping them to adapt to regulatory changes.

Our team of experts is prepared to advise companies on compliance with these regulations, providing effective services and accompanying them throughout the process. We have advised our clients on the front-end labeling system and are prepared to support them in the processing of their Advertising Permits and Advertising Signs while the secondary rules that will guide the path of advertising authorization are being issued.

Contact one of our regulatory services experts by emailing marketing@clarkemodet.com.mx.