NOM-051 Regarding specifications of labels for pre-packaged food and non-alcoholic beverages
by Juan Carlos Amaro
Logos or characters can be protected as trade marks to distinguish the products or services intended for protection. They can also be protected as a copyright by means of a Work of Art (drawings) or by a "Reserva", which is a sui generis right to protect characters of a fictitious or human nature, among other rights.
Over the years, emblematic characters, drawings or logos were duly protected by IP owners to be used as the front image of their products, or to launch advertising campaigns with celebrities, such as athletes, actors or pets to promote their respective goods.
Nevertheless, on 27th March 2020, the amendment to the Mexican Official Standard NOM-051 (Regulation that states the general labelling specifications for pre-packaged food and non-alcoholic beverages) was published in the Federal Official Gazette.
The amendment to this regulation states that pre-packaged food and non-alcoholic beverages must have a warning label system that could provide better commercial and health information about products.
This warning label system consists, among other things, of mandatory warning seals on the front of packaging which inform consumers if the product they are choosing is high in critical nutrients such as calories, sugars, sodium, saturated fats and/or trans fats, or if it contains sweeteners.
Below, is an example of the warning used to caution consumers that products contain an “excess” of the aforementioned components and the seal stated to warn sweetener content.
• Exceso de Calorías – Secretaría de Salud
• Exceso de Sodio – Secretaria de Salud
• Exceso de Grasas Trans – Secretaria de Salud
• Exceso de Azúcares – Secretaria de Salud
• Exceso de Grasas Saturadas – Secretaria de Salud
CONTIENE EDULCORANTES, NO RECOMENDABLE EN NIÑOS
The obligation to use the warning seals on the front of packages of products which are high in critical nutrients or have sweeteners will come into force on 1st October 2020 and its implementation foresees a transition period which includes three increasingly stringent phases regarding the calculation and evaluation of the values and profiles of the nutritional information.
The passing of this amendment is justified on the following grounds:
- Mexico faces a public health problem with respect to obesity.
- The frontal labelling is proposed as a measure to protect and guarantee the proper and responsible consumption of goods by Mexican citizens.
- Mexico is one of the countries with the highest levels of child obesity worldwide.
According to the third ground listed, in an attempt to prevent further increases in child obesity, this new warning label system also seeks to protect children by prohibiting the use of children's characters, animations, cartoons, celebrities, athletes or pets, interactive elements, such as visual-spatial games or digital downloads on the label or packaging of products with one or more warning seals. This is to avoid children being encouraged to purchase or choose one of these products because of the use of these elements.
This last obligation is stated in article 4.1.5 of the regulation and mentions the following:
"4.1.5 Prepackaged products bearing one or more warning stamps or the sweetener legend, must not:
a) include on the label children's characters, animations, cartoons, celebrities, athletes or pets, interactive elements, such as visual-spatial games or digital downloads, that, being directed to children, incite, promote or encourage the consumption, purchase or choice of products with excess critical nutrients or sweeteners, and
b) make reference on the label to elements other than the ones intended for the same purposes of the previous paragraph."
This specific obligation established in the aforementioned article will come into force on 1st April 2021.
While the purpose of the regulation is to protect children, the measures established in it could be considered excessive, unnecessary and disproportionate, as child obesity is caused by multiple factors such as: genetic heritage and susceptibility, lifestyle, globalising influence, cultural environment, socio-economic and educational conditions. Therefore, it is not a consequence of the consumption of products which have high levels of critical nutrients or sweeteners.
Thus the restriction of the use children's characters, animations, cartoons, celebrities, athletes or pets, interactive elements, such as visual-spatial games or digital downloads in products directed to children that bear one or more warning seals in order to discourage children from purchasing or choosing one of these products may not be the right solution to a multi-factorial disease such as obesity in children. Moreover, this article restricts the use of the aforementioned elements notwithstanding that they are protected by an intellectual property right.
The prohibition established in article 4.1.5 of the regulation restricts the use of trade marks and copyrights that protect any of the elements prohibited, inhibiting free competition between the individuals or companies that create, promote and/or commercialise pre-packaged food and non-alcoholic beverages directed to children that may bear one or more warning seals. This may seriously affect the holders of IP and economic rights established in the Mexican Constitution, federal laws and international treaties, as the regulations oblige them to modify the labels/packaging of products that fall within the prohibition and that could have been distinguished over several years by the consumers, resulting in losses in intangible assets for these individuals or companies.
This prohibition affects companies' planning regarding strategies to protect their IP rights, including trade marks, copyrights, marketing and advertising strategies. Moreover, such prohibition also affects regular contracts for exploiting the use of the image of a celebrity or athlete.
It also has an impact on the redesigning of the packaging and on the brand image of the products, hence it may cause major economic damage to individuals or companies who create, promote and/or commercialise products subject to the prohibition.
Therefore, this amendment could be subject to legal procedures on the grounds that it is illegal, excessive, unnecessary and disproportionate, not to mention its clear impact on commerce and economic competition. Accordingly, it is important that IP owners design legal strategies to neutralise the negative impact that NOM-051 will produce in order to defend their rights.