Not in the right spirit

In Mexico, the Federal Commission for Protection against Health Risks (COFEPRIS) is the agency in charge of monitoring compliance of the legal framework that regulates the alcohol beverages industry; its key mandate is to “prevent any possible health risks”.

On December 20, 2017, COFEPRIS published on its official website the “Guidelines for the analysis of alcoholic beverages advertisement applications”; according to the first article, these guidelines serve the purpose of “consolidating the criteria for the analysis of advertisement authorisation applications for alcohol beverages in Mexico”.

According to the legal framework regulating the alcohol beverages industry in Mexico, all advertisers must apply for and obtain authorisation from COFEPRIS before launching their adverts.

The General Health Law (GHL) and the Advertising Regulation for the Mexican Health Law (ARHL) provide the guidelines that have to be taken into consideration by industry members.

Mexico’s advertisement regulation is among the strictest, as the official interpretation of the rules has been expansive, to the detriment of industry members.

Rules

The basic rules of the current regulation for alcohol beverages advertising in Mexico include:

Product advertisement and sponsorship advertisement cannot be related (nor by common images, sounds, phrases or look and feel).

No handling of the product (beer or other alcoholic beverages).

No real or apparent drinking.

No promotion of ‘excessive’ drinking (several drinks per person).

No communication of success, prestige, fame, joy, relaxing or personal relationships.

The basic don’ts for alcohol beverages advertising in Mexico include:

Handling the product.

Real drinking/consumption.

Apparent drinking/consumption.

Promoting excessive drinking (more than one drink per person).

Use of imperatives or phrases that promote drinking.

Appealing to an underage public or related to religious or civic celebrations.

Communicating success, prestige, fame, joy, relaxing or personal relationships while displaying product.

Suggesting the product determines or modifies a conduct, mood, or emotion.

The guidelines recently set forth by COFEPRIS should serve only as a guide for the interpretation of the Health Law and its Regulations on Advertisement, with the aim that junior authorities apply uniform criteria when examining advertising projects.

Due to the wording and structure of its articles, this does not seem to be the real purpose of the new guidelines. Instead, it seems that COFEPRIS is seeking to impose on industry members additional requirements and compliance costs for the prosecution of advertisement authorisations.

In fact, the Federal Regulatory Improvement Commission (Cofemer), the agency in charge of reviewing the general standards and regulations established by the administrative authorities, has already determined that some of the articles of the original project of the guidelines impose new obligations for the industry members as well as compliance costs.

The articles of the new guidelines can be categorised as follows: (i) those creating new definitions for concepts provided by the law or its regulations; and
(ii) those imposing new obligations for the private sector for creating new requirements and compliance costs for the prosecution of advertisement authorisations for alcoholic beverages.

Restrictions

The guidelines that foresee new definitions restrict the freedom to advertise alcoholic beverages, as COFEPRIS drafted them in a very broad manner empowering the examiners to refuse advertisements in cases that the law or its regulations do not foresee.

As an example, the Regulations on Advertisement forbid advertising alcoholic beverages relating them with sporting activities.

The 14th guideline defines “sporting activity” as “any physical and mental discipline serving the purpose of preserving and enhancing physical and mental health, social, ethical and intellectual development, with the achievement of results in competition”.

This definition is broader than the one provided by the Physical Culture and Sport Law, which defines “sport” as the “organised and regulated physical discipline serving the purpose of preserving and enhancing physical and mental health, social, ethical and intellectual development, with the achievement of results in competition”.

As may be noted, the new definition of sporting activity empowers COFEPRIS examiners to refuse advertisement projects relating alcoholic beverages with activities that are not considered as sports by the law. Specifically, based on the guidelines, COFEPRIS could refuse advertisement applications even if the advertising material does not relate alcoholic beverages with an “organised and regulated physical discipline” and could also refuse authorisations when the advertisement material relates the alcoholic beverages with “mental disciplines”, situations that are not foreseen in the Health Law or its Regulations on Advertisement.

On the other hand, the second and eighth guidelines contravene the Regulations on Advertisement to the detriment of the industry members. According to these regulations, the private sector is not required request authorisation from COFEPRIS for labels and packs of alcoholic beverages; however the guidelines do provide that any information or element included in the labels and primary or secondary packs of alcoholic beverages that is not considered technical information for consumers (net content, ingredients, drink and drive warnings, etc) will be considered as advertising.

Therefore, the new guidelines could be read as imposing the obligation on industry members to submit for health authorisation all the labels and packs of their products even if they comply with the official standards, otherwise they could be sanctioned by COFEPRIS with a fine or seizure.

Since the guidelines published by COFEPRIS exceed their administrative nature and directly affect the commercial activity of the alcoholic beverage industry, we believe there is a need for courts to review their lawfulness and determine whether they should be applied by the health authorities.

Daniel Sanchez is a partner at Olivares. He has worked at the firm since 2000 and has experience in all areas of IP including trademarks, copyright, patents and competition. Sanchez co-chairs the litigation team and the IT industry group at the firm. He can be contacted at: daniel.sanchez@olivares.mx

Victor Ramirez is an associate at Olivares. He joined the firm in 1999 and has experience assisting companies in the food and drink industry to successfully resolve compliance proceedings initiated by the consumer protection and health agencies, as well as to obtain the marketing authorisations required for their advertising and product labelling. He can be contacted at: victor.ramirez@olivares.mx