Updating of the labeling obligations for prepackaged food and non-alcoholic beverages (NOM-051-SCFI / SSA1-2010)

In its first transitory article, the Modification of March 27, 2020 to NOM-051-SCFI / SSA1- 2010 established that on April 1, 2021 all of its provisions would come into force. In this sense, on April 1, provisions such as the following should come into force:

• Prohibition that prepackaged products with one or more warning stamps or the legend of sweeteners include on the label children’s characters, animations, cartoons, celebrities, athletes or pets, interactive elements (…), which, being aimed at children, incite, promote or encourage the consumption, purchase or choice of products
with excess of critical nutrients or with sweeteners.

• Prohibition of complying with the provisions relating to the new front labeling system through adhesive stickers.

However, through an agreement published in the Official Gazette of the Federation on March 31, 2021, the authorities in charge of monitoring compliance with the Amendment to NOM-051-SCFI / SSA1-2010 (Ministry of Economy, Ministry of Health and Federal Consumer Prosecutor’s Office –
PROFECO) recognized and established a period that will run from April 1 to May 31, 2021 in which producers, importers or marketers will not be sanctioned during the verification activities of PROFECO and the Federal Commission for the Protection against Sanitary Risks ( COFEPRIS). The latter, as long as the products in question comply with the front labeling system in force since October 2020.

In accordance with the aforementioned agreement, the authorities will consider that there is no infraction when:

• National producers make use of labels, adhesives or adhesive stickers on packaging or packaging labels.
of origin of the products subject to the Modification to NOM-051-SCFI / SSA1-2010 (third article).

• Importers make use of labels, adhesives or adhesive stickers on the original container or packaging labels of imported products subject to the Modification to NOM-051-SCFI / SSA1-2010 (fourth article).

• The labels of the prepackaged products include the commercial and health information that is the object of the Modification to NOM-051-SCFI / SSA1-2010 and comply in advance by April 1, 2021 with the provisions of the Modification (article five).

In this sense, there will be a period, caused by the agreement and by the foreseeable rotation of inventories, in which the consuming public observes at the point
sales that coexist products that comply with the mandatory commercial and health information as of October 1, 2020 and those that already comply with the rest of the provisions of the Modification to NOM-051-SCFI / SSA1-2010 (article six).

Criteria of the Judicial Power of the Federation regarding the entry into force of the Amendment to NOM-051-SCFI / SSA1-2010.

By virtue of the possible unconstitutionality presented by the Modification to NOM-051-SCFI / SSA1-2010, amparo lawsuits have been filed before the Federal Judicial Branch. It has been of particular relevance to determine which batches of products the Modification to NOM-051-SCFI / SSA1-2010 applies to, preventing it from having retroactive effects.

In this regard, in complaint 61/2020, the Third Collegiate Court in Administrative Matters of the First Circuit (Mexico City) held that the answer to this question depends on the
moment in which the products have entered the trade. The sanitary and commercial regulations that were in force at the time of entry into commerce of a specific batch of product will be taken as applicable. For this, it is relevant to determine the pre-existence of the products in the trade at the time of entry into force of the Modification to NOM-051-SCFI / SSA1-2010.

This criterion is not the only one within federal courts. When resolving the appeal for review 95/2020, the Second Collegiate Court in Administrative Matters of the Second Circuit (State of Mexico) issued a criterion that could appear to be contradictory to that of the First Circuit Court.

In a session of March 24, 2021, the Second Chamber of the Supreme Court of Justice of the Nation undertook to study this contradiction of criteria.
However, it voted unanimously that said contradiction was inadmissible, leaving the door open to the issuance of more resolutions that follow the criteria of the Third Collegiate Court in Administrative Matters of the First Circuit, which is more favorable for legal certainty.

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