The Conflict Between IP Rights and Government Efforts to Promote Healthy Eating Habits in Mexico

Obesity and diseases related to poor eating habits are severe problems in Mexico. According to information published by the federal government in 2018, 75.2% of adults over the age of 20 are obese or overweight – as are 35.6 % of children between the ages of 5 and 11. Additionally, a significant number of individuals experience health problems owing to diabetes, cardiovascular diseases and obesity, which may even lead to death.

It is no wonder, therefore, that the Mexican government is attempting to combat these problems by pushing various reforms and social programmes. However, the public policies deriving from these efforts – albeit well-intentioned – have often collided with other protected rights, especially in connection with publicity and IP.

In 2021, a Mexican Official Standard (Norma Oficial Mexicana, or NOM) aimed at regulating the labels and packaging of food items and non-alcoholic drinks came to force. The gist of the NOM-051 is that those products considered to be unhealthy – because they contain large amounts of sugar, fat, sodium or other elements, for example – must display such information on their labels, highlighted by large black seals. Additionally, in order to reduce the consumption of such products among children, packaging and labelling cannot feature characters, animations, cartoons, celebrities, athletes, mascots or any other similar elements.

The NOM-051 was challenged in federal courts, notably by the owners of businesses focused on the fabrication and commercialisation of products subject to this regulation. The main arguments in such litigations concerned:

The results of these litigations were mixed. Some courts considered the restrictions to be justified and proportionate, especially when taking into account the well-being of children and the fundamental health rights of all. Other courts concluded that the restrictions were too strict or excessive and, as a result, invalidated certain sections of the NOM-051 (with limited effects).

The final decision regarding the validity of the NOM-051 will depend on the Supreme Court, which is currently in the process of analysing and solving appeals filed against the court decisions.

As part of the evolution of these public policies, a second change in the Mexican legal landscape was introduced. On September 2022, reforms to the Regulation of the General Health Act in Terms of Advertising were published, with the intention of strengthening the measures taken by the NOM-051.

Essentially, these amendments take the aforementioned restrictions one step further. Whereas the NOM-051 simply concerned the product’s labels and packaging, the new regulations are aimed at advertising on television, the internet and other digital platforms, as well as in movie theatres. Such regulations came into force during March 2023.

The main change is that a permit from federal health authorities must now be obtained in order to advertise products that are considered unhealthy. In addition, characters, animations, cartoons, celebrities, athletes, mascots or interactive elements must not be used in advertising to incite the consumption of unhealthy products by children.

As anticipated, these new regulations have also been challenged in court via constitutional appeals. The results are expected during the course of 2023.

The Supreme Court’s decision in respect of the NOM-051 is likely to directly influence the lower court’s criteria when analysing the validity of the reforms to the Regulation of the General Health Act in Terms of Advertising.

However, it is worth noting that this latter change is broader in the scope of its wording and stricter in the limitations it imposes. As such, it remains to be seen whether the same standard of decision will be upheld by the courts when analysing these amendments. How this collision of seemingly conflicting rights will be resolved also remains unclear.

In any case, the outcome of all this litigation looks set to shape the advertising landscape in Mexico for years to come – particularly with regard to food and non-alcoholic drinks. Ultimately, these cases combine to highlight the importance of consulting with an expert before engaging in the advertising and commercialisation of certain products in Mexico.