BAKER & MCKENZIE

Latin American Legal Developments Bulletin Vol. 5; No. 3

MEXICO

Understanding Nom-050: a Guide to Mexican Consumer Product Labeling Requirements

On March 1, manufacturers and importers of most consumer products produced domestically or imported into Mexico became subject to Official Mexican Standard NOM-050-SCFI-1994, Commercial Information - General Provisions for Products ("NOM-050" ).

NOM-050 stipulates the minimum commercial information which must be provided on product labels in Spanish, the types of labels which may be used, and how they must be affixed to products. NOM-050 also regulates the contents of instructions, operating manuals and warranties which may accompany consumer products. All such materials must be provided in Spanish, although they may be in other languages as well.

Introduction

The Ministry of Commerce and Industrial Development ("SECOFI") has prepared a Guide to NOM-050 which interprets each of the provisions of NOM-050. This Guide has not been published in the Federal Official Gazette, but it is being made availab le to the public.

This article highlights some of the more significant requirements of NOM-050 and the relevant commentary from the Guide.

Scope of Application

NOM-050, published in the Federal Official Gazette on January 26, 1996, is applicable to all products of domestic and foreign production destined for consumers in Mexico. NOM-050 defines a "consumer" as "an individual or corporate entity that acquires or enjoys products as an end user". It states that "a person who acquires, warehouses, uses or consumes products with the purpose of integrating them into processes of production, transformation, commercialization or the rendering of services to third parties is not a consumer".

According to the Guide, NOM-050 applies to finished products which will reach the final consumer. The final consumer is considered to be the last link in the commercial chain of a product. A person who buys soap and uses it to bathe and a person who bu ys a can of paint and uses it to paint the doors of his house are examples of final consumers. Someone who buys iron to make chairs or chemical products to make detergent is not a consumer for purposes of NOM-050, since the iron and the chemicals will be transformed into different products. Similarly, a dentist who acquires a dental chair is not a consumer, if he uses the chair to render a service.

Officials of the Mexican Consumer Protection Bureau ("PROFECO"), the enforcement agency for NOM-050, have nevertheless indicated on an informal basis that they do intend to enforce NOM-050 in respect of products sold to commercial entities fo r use in their commercial activities. Therefore, to avoid difficulties at the time of importation or subsequent distribution of a product in Mexico, if an importer wishes to claim exemption from the labeling requirements on the basis that the products are not being sold to consumers, we recommend that a special waiver be obtained in advance from the appropriate authorities.

NOM-050 does not apply to products which are subject to other commercial information NOMs. The Guide provides a list of NOMs which contain commercial information requirements for specific types of products, such as NOM-020-SCFI-1993 (leather products), NOM-004-SCFI- 1994 (textiles and apparel), NOM-024-SCFI- 1994 (electronic and electrical products and household appliances) and NOM-051 -SCFI- 1994 (non-alcoholic beverages, agricultural products and foodstuffs).

Although not mentioned in the Guide it is important to note that, pursuant to provisions of the Foreign Trade Law, the labeling requirements of NOM-050 apply to products at the time of their importation only if they are listed in an Accord published by SECOFI on February 25, 1997. It is not clear, however, that a consumer product not so listed, and not otherwise exempt from NOM-050 (for example, because a more specific NOM applies), would not be subject to NOM-050 upon commercialization in Mexico.

Obligatory Commercial Information

Interpreting the Terms

NOM-050 specifies the minimum information which must appear on product labels, as follows:

a) Name or generic name of the product, when not identifiable at first sight by the consumer;

b) Indication of quantity in conformity with NOM-030-SCFI ("NOM-030");

c) For national products, the name, corporate or trade name and tax domicile of the producer or person responsible for manufacture. For imported products, this information must be provided by the importer to SECOFI upon request;

d) Legend indicating the country of origin of the product, for example "producto de..." ("product of..."), "hecho en..." ("made in..."), "manufacturado en..." ("manufactured in...") or a simil ar legend, subject to the provisions of international treaties to which Mexico is a party;

e) For dangerous products, warnings of risks by means of legends, graphics or precautionary symbols;

f) When the use, handling or conservation of products requires instructions, this information must be presented or indicated in annexed instructions or an annexed operating manual, noting on the appropriate label "VEASE INSTRUCTIVO ANEXO" (&q uot;SEE ATTACHED INSTRUCTIONS") or "MANUAL DE OPERACION ANEXO" ("OPERATING MANUAL ATTACHED");

g) When applicable, the date of expiry or preferred consumption; and

h) For imported products, the name, corporate or trade name and tax domicile of the importer. This information may be added to the product within Mexican territory after customs clearance and before commercialization of the product.

If required to be included on the label, the name of the product and the quantity must appear in the "principal display area". The "principal display area" must be calculated and determined in accordance with NOM-030 (Federal Offici al Gazette, October 29, 1993). The size required for the quantity varies depending on the size of the principal display area. The Guide contains formulas and diagrams for calculating the principal display area based on the provisions of NOM-030.

NOM-030 also specifies how the quantity must be placed on the label and regulates the use of the legends "Contenido" ("Contents"), "Contenido Neto" ("Net Contents"), their abbreviations "Cont." and &quo t;Cont. Neto", and "Masa Drenado" ("Drained Weight"). The quantity must also comply with NOM-008-SCFI (Federal Official Gazette, October 14,1993), which requires use of the metric system and specifies how units of measurement must be written. If information is expressed in non-metric terms, it must also appear in metric in "at least the same size and typographical proportion and in a manner equally ostensible".

The tax domicile of the producer or person responsible for the manufacture of the product is the one registered with the Department of Finance and Public Credit ("Hacienda"). The person responsible for the manufacture of a product includes a person entrusting production of the product to a third party, such as a maquila. In the case of non-Mexican situs producers or parties responsible for production, and imported products, it is not required that this information be indicated on the label of the product. Rather, the information must be made available to SECOFI upon its request. This provision is responsive to the fact that identification of foreign suppliers is considered proprietary by persons engaged in the importation of merchandise.

Concluding Comments

The obligation to indicate the place of origin on labels is found in the Federal Consumer Protection Law. Except for the so-called "NAFTA Marking Rules", which apply to products imported into Mexico from the United States and Canada, Mexico d oes not have rules of origin for purposes of determining the origin of products for "marking" or labeling purposes. According to the Guide, as a general rule the country of origin of a product is the country in which it is manufactured or assemb led or in which the last substantial transformation is carried out, unless more specific rules deriving from international treaties, such as NAFTA, apply.

The minimum information must be presented on a label that is affixed to the product in such manner that it will under normal conditions remain in place until the time of use or consumption, and a label must be applied to each unit or package. If the pa ckage is such that the consumer cannot see its contents, the minimum information must be presented on the package.

One of the key requirements of NOM-050 is that the information displayed on product labels be in Spanish. Information may appear in another language, but if so it must also appear in Spanish in "at least the same size and typographical proportion and in a manner equally ostensible".

The Guide clarifies that only the minimum information required by NOM-050 must be translated into Spanish. Any additional information may be translated, but need not be.

The expression "at least in the same size and typographical proportion" is interpreted to mean that required information which is expressed in another language must appear in Spanish in the same font, style (thin, medium or bold; normal or it alics) and typographical size (letters, punctuation marks and symbols). The expression "in a manner which is equally ostensible" means that the Spanish version must be as bright and must be exhibited equally clearly as the version in the other l anguage It also must appear in a similar or equivalent location with the same or similar colors and designs, for both the print and the background.

If required information in another language appears more than once, it must appear an equal number of times in Spanish, and each occurrence must be "at least in the same size and typographical proportion and in a manner equally ostensible" as discussed above.

If information appears in a language other than Spanish on an original label, it is permissible to conceal this information in whole or in part by any means (for example by applying another label in such manner that the information is concealed). In th is case, there is no requirement that the information in Spanish be presented with "at least the same size and typographical proportion and in a manner which is equally ostensible" as the information which is concealed.

NOM-050 also requires that commercial information be expressed in comprehensible and legible terminology, in such manner that the size and type of letter permit the consumer to read it at first sight. The Guide indicates that "comprehensible" means that the words used to convey the commercial information must be clear, common and simple, and must not give rise to confusion. The size and type of print must be chosen to avoid overlapping and must not be so reduced or thin that a person with nor mal vision would need a magnifying glass to read the label .

Before importing a product into Mexico, it is important first to determine whether NOM-050 (or any other labeling standard) applies to the product. The applicable requirements can be determined based upon the Mexican tariff position for the product. It is then essential to review carefully the appropriate labeling NOM and other relevant provisions including, in the case of NOM-050, the Guide prepared by SECOFI. It may also be prudent in some circumstances to obtain a ruling from SECOFI to confirm that a proposed label satisfies the requirements. While there are procedures prescribed for labeling products after importation, these procedures are new, and it is not yet known how effectively they will work in practice. We recommend that products be labeled prior to importation.

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