Mexico's New Nutritional Labeling and Consumer Information Requirements Open for Comments

International treaties such as the Agreement on Technical Barriers to Trade (TBT) recognize labeling as a common tool used by governments to protect human health.¹ Considering that Mexico faces important rates of mortality related to diseases such as obesity², diabetes and cardiovascular problems, as part of new public policies, the Mexican authorities propose to implement new frontal labeling requirements for processed foods³, aimed to achieve the declared objective of: "informing the consumer clearly and truthfully about the content of critical nutrients that pose risks to their health in excessive consumption."⁴

The new proposed regulation was published on Oct. 11, 2019, in Mexico's Official Gazette, and modifies the existing Official Mexican Standard (NOM)⁵ identified as: "NOM-051-SCFI/SSA1 on general specifications of labelling for food and non-alcoholic beverages pre-packaged – commercial and sanitary information."⁶

The draft amendment of NOM-051-SCFI/SSA1establishes the introduction of graphical warnings on the products (see figure above for reference), highlighting the excessive content of calories, sugars, saturated fats, trans fats or sodium in a product and identifying those products that include caffeine and are not recommended for consumption by children.⁷

With the proposed amendments, Mexico joins previous efforts adopted by other Latin American countries such as Chile, Peru and Ecuador⁸, although the effectiveness of those regulations are still subject to debate.⁹ In a recent interview, however, Mexico's Undersecretary for Health Prevention and Promotion noted that the labeling regulations in Chile have led to a reduction of at least 20 percent in the consumption of products that are excessive in sugars, fats and calories.¹⁰

The impacts of this new labeling in the Mexican market are still under discussion. Compliance with the labeling regulations for foreign-made products will be the responsibility of marketers or importers at the point of entry. The required labeling will have to be placed at the front of the package, as is already mandated in the current NOM-051-SCFI/SSA1, but the size of the octagonal signalization will most likely require a redesign of existing packaging.¹¹

Due to the potential impacts of the regulations, the public has 60 days from the publish date of Oct. 11 to submit comments to Mexico's Ministry of Economy or the Federal Commission for the Protection Against Sanitary Risks (COFEPRIS). The comment period will conclude on Dec. 10, 2019.¹² After the 60-day period, the Mexican government will have 45 days to analyze all comments received¹³ and, if required, modify the new NOM-051-SCFI/SSA1. The final regulations will then be published in Mexico's Official Gazette.¹⁴

Holland & Knight's International Trade Group is available to assist clients during the process of revision and amendment of the Official Mexican Standards, especially when those modifications impact Mexican trade relations. For more information, contact the authors or Holland & Knight's Mexico City office.

Notes

¹ See World Trade Organization's TBT technical explanation website.

² In 2016, seven out of 10 Mexicans were overweight, with a third of them clinically obese. Source: World Health Organization.

³ For example, on Oct. 1, 2019, Mexico's Chamber of Deputies approved certain amendments to the Health General Law that will force food and beverage companies to place a warning label on the front of the product. The draft of these amendments is currently being discussed in the Chamber of Senators. 5 cosas que debes conocer sobre el nuevo etiquetado frontal.

⁴ Whether this objective is achievable, or what exactly excessive consumption means, is arguable. See the latest publication of the NOM from Oct. 11, 2019. The new labeling standards will theoretically promote a more competitive market by establishing uniform information criteria for the products subject to this regulation.

⁵ The Official Mexican Standards (Norma Oficial Mexicana, or NOM) are mandatory technical regulations issued by the competent agencies, whose purpose is to establish the characteristics that processes or services must meet when they may constitute a risk to the safety of people or damage human health, as well as those related to terminology and those that refer to its compliance and application.

⁶ PROYECTO de Modificación a la Norma Oficial Mexicana NOM-051-SCFI/SSA1-2010.

⁷ Id. See paragraph A.2.2 of the appendix included in the publication.

⁸ WTO discussions recognize the need for "good regulatory practice," which promotes convergence between members' regulatory systems. It is not clear though if the Mexican labeling seeks this objective or to what degree similar octagonal labeling from other countries provide the same type of commercial information for consumers.

⁹ More time is required to fully establish the consequences.

¹⁰ See news report: Mexico pursues clear frontal labeling, after Chilean model, in spite of industry rejection.

¹¹ Mir de alto impacto con análisis de impacto en la competencia, análisis de riesgos y análisis de impacto en el comercio exterior. See the Chilean regulations on labeling: legislation and bylaws. Under the TBT Agreement, other WTO members must be notified of amendments that are considered to be new or not based on international standards. Mexico already notified the WTO of this amendment, and it is quite possible that it will be subject to discussions under the TBT Committee, just like the Chilean labeling was discussed where Mexico and other members raised concerns, particularly with regard to the lack of notification compliance required by the WTO on various aspects such as the following :"Impact on mandatory labeling of small packages; lack of scientific basis for nutrient thresholds; burdensome requirements; proportionality; coverage of package surface; placing of stamp/label on package; cost increases; consumer misleading; availability of alternative approaches; too short implementation deadlines."

¹² See the blueprint website where comments to the proposed amendments can be found.

¹³ The Mexican government has the obligation to explain and publish the reason when a comment is rejected. See Article 33 of the Regulation to the Metrology and Normalization Federal Law: "Reglamento de la Ley Federal de Metrología y Normalización."

¹⁴ See Article 47 of the Metrology and Normalization Federal Law: "Ley Federal sobre Metrología y Normalización."

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.