Amendments and Additions to the Regulation on Advertising of the General Health Law and its relation with audiovisual productions.

January 25, 2023

On September 8, 2022 was published in the Official Gazette of the Federation, the Reform Bill by which several provisions to the Regulation on Advertising of the General Health Law are added and amended.

However, the provisions of interest to the entertainment industry are the following:

In the beginning, Article 22 bis is amended, adding “internet and other digital platforms” to the media that will be subject to advertising permits by the Secretary of Health, granted through the Federal Commission for the Protection against Sanitary Risks, on publicity related to the existence, quality and characteristics of food and non-alcoholic beverages, as well as to the promotion of their use, sale or consumption directly or indirectly, when the label of such products includes the front labeling system, in accordance with the corresponding standard.

It is worth mentioning that such system refers to the warning seals established in NOM-051.

Likewise, in the subsequent paragraph of said article, the same media are added, to which the Commission must issue the corresponding guidelines on the advertising requirements and procedures that food and non-alcoholic beverages must comply with in order to be published therein.

In addition, Article 79 was amended, which establishes that a permit from the Secretary is required for advertising related to food and non-alcoholic beverages that are broadcast on open television, restricted television, movie theaters, adding internet and other digital platforms, when such products do not comply with the guidelines referred to in the second paragraph of Article 22 Bis.

However, the question here is whether audiovisual productions are considered as advertising media, and whether the incidental appearance of brands and product placement are considered as advertising, according to the definitions established within the Regulations.

The definition of advertising according to the regulation is understood as the activity comprising the whole process of creation, planning, execution and broadcasting of advertisements in the media in order to promote the sale or consumption of products and services.

Advertisement is defined as the message addressed to the public or a segment thereof, with the purpose of informing about the existence or characteristics of a product, service or activity for its commercialization and sale or to motivate a behavior.

Audiovisual productions could fit to a certain extent as advertising media, since the provision of the regulation leaves it open to the interpretation that if an advertisement is being broadcasted in which the population has access, by any means of communication or technology it must be considered as such, however, the distinction between product placement and incidental appearance must be made, as well as whether or not the way in which the product is shown in both cases must be considered as an advertisement.

In incidental appearance, it is not considered that there are arguments with much weight, since it could only be considered as hidden advertising, which does not contain any message directed to the public and as such, this type of advertising is not regulated in Mexico.

In the case of product placement, where the advertising purpose is more evident, the way in which the product is presented must be analyzed, that is, if it will only be shown, even if it is on the front page; or if in the dialogue or context of the production scene where the product is shown there is a specific message directed to the public that promotes the consumption or sale of such product.

In the first assumption of the preceding paragraph, it can be considered as hidden advertising, since there is no message directed to the public and therefore, it cannot be qualified as an advertisement, which we consider would not affect the production companies nor would it oblige them to have an advertising permit, since as mentioned, such type of advertising is not regulated, however, if the second assumption of the preceding paragraph is fulfilled, it is possible that the Ministry of Health through COFEPRIS has arguments to initiate a sanction procedure

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Luis Schmidt

Partner

Luis Schmidt joined OLIVARES in 1991, became a partner in 1995, and has almost 40 years of legal experience, with a specialization in copyright in the business of entertainment and culture. He has represented the world’s leading companies in the music, film, television, book publishing, fine art, design, folklore, and software.

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