Isabela Brockmann, LLB student (International and European Law) (University of Groningen) i.brockmann student.rug.nl       

Mexico has long witnessed a rise in non-communicable diseases (NCDs) such as diabetes and obesity which can partly be traced back to a lack of regulation in the food and beverage industry, letting corporations run rampant. Indeed, an effort to tackle these NCDs was long overdue until the Official Mexican Norm (NOM-051),[1] a law implementing the General Health Law (GHL), was modified in 2020 to include front-of-package warning labels (FOPWLs) to support consumers in making informed choices when purchasing pre-packaged food and non-alcoholic beverages.[2] The mandated labels warn consumers of excessive critical nutrients contained in foodstuffs and beverages, closing the information gap between consumers and producers and allowing consumers to weigh the nutritional costs of purchasing these labelled products.[3] This blog discusses the current success of NOM-051 in the context of international human rights standards: the policy on paper seems to align with Mexico’s obligation to protect the right to health and shows promising success when dissecting its implementation in practice. Ultimately, the remaining barriers to its implementation perpetrated by the food and beverage industry require additional monitoring and regulation to avoid jeopardising its success. 

The Modified NOM-051 Measure

The need for a modified version of NOM-051 stems from significant increases in overweight and/or obese children, adolescents and adults throughout the years.[4] NCDs aside, NOM-051’s failed predecessor “The Guideline Daily Amount (GDA)”,[5] nutrition labels which dated back to 2014, called for a much needed change in Mexico’s packaging policy. The GDA was deemed difficult to understand, requiring consumers to have a basic understanding of how many calories are to be consumed per day. [6] The modified NOM-051 now requires food and beverage manufacturers to include FOPWLs in the form of black octagons on products which have been classified as being high in critical nutrients (see figure 1).[7] For example, an ‘Excess sugar’ or ‘Excess saturated fat’ label must be included if the sugar or saturated fat content of the product makes up 10% or more of the total calories.[8] To give the food and beverage industry a sufficient amount of time to adapt products to the mandated standards, the implementation of NOM-051 is to be carried out in three phases; the first phase having begun in October 2020, the second in 2023 and the third in 2025. Within these five years, the thresholds will become increasingly stricter and by the third phase of implementation all critical nutrients must be evaluated if the product is found to contain at least one of them in excess.[9]

International Human Rights Standards on the Right to Health

National standards aside, the NOM-051 initiative must be examined against the broader context of international human rights law when determining whether the policy is adequately addressing the issue of NCDs in accordance with international standards on health. Taking a human rights-based approach, the International Covenant on Economic, Social and Cultural Rights (ICESCR), to which Mexico is a state party of, represents international consensus on what the right to health encompasses under article 12.[10]

Upon closer inspection, article 12 entails multiple obligations for the state regarding an individual’s right to the highest attainable standard of health and extends to underlying determinants of health such as nutrition and access to health-related information. [11] In line with the obligation to protect the right to health, the state is required to take measures that prevent third parties (in this case corporations within the food and beverage industry [12]) from interfering with article 12 and to ensure that third parties do not limit access to health-related information to consumers.[13] Food and beverage industries have the potential to interfere with the right to health via inaccurate or deceptive marketing ploys which encourage the consumption of unhealthy products. [14] To directly intervene with such conduct a state may thus mandate FOPWLs in order to reduce consumer-producer information asymmetry on the perceived healthiness of certain products, as implemented in Mexico.[15] Such direct intervention is possible under a state’s obligation to protect the right to health, allowing for inter alia, the adoption of legislation to “regulate the the activities of (…) groups or corporations”. [16] The Mexican government’s initiative in protecting consumers from products high in critical nutrients as manifested by NOM-051 thus reflects international standards on paper. Its application in practice however, still faces some challenges but remains a promising step in upholding the right to health.

Evaluation of NOM-051’s Effectiveness

To assess the effectiveness of NOM-051, currently in its third phase of implementation, two studies are of relevance. Recent literature suggests that the new FOPWLs have and will continue to successfully deter consumers from purchasing products high in critical nutrients. A 2020 study has argued that health providers were able to efficiently recommend dietary choices to patients at risk of developing NCDs simply by advising them to avoid those products with warning labels.[17] Furthermore, 2020 data points to positive changes in consumer behaviour: the warning labels were the element most consulted by consumers for production information and 88% of parents reported making changes in pre-packaged foods and beverages purchased for the household.[18] Moreover, a 2021 study with a sample of 17,264 products from Mexican supermarkets has estimated that the regulation would prevent 40% of these total products and 50% of ultra-processed food products from being allowed to display deceptive health and nutrition claims once the final thresholds of NOM-051 are in full effect. [19] On the other hand, it must be recognized that the food and beverage industry continues to represent barriers to implementation. This includes attempts to delay the full implementation by filing injunctions and creating ‘double fronts’; making the front and back of the product’s packaging identical with only one side containing the warning label.[20]

Concludingly, a full realization of Mexico’s obligation to protect the right to health from interferences from the food and beverage industry is promising but will require additional regulation. Ideally, a stricter enforcement attitude must be adopted to minimise industry pressure and additional monitoring measures should be adopted by grocery stores to mitigate creative compliance via the double fronts loophole. Should this be taken into account, NOM-051 may contribute significantly to preventing NCDs throughout Mexico.

Bibliography

[1] MODIFICACIÓN a la Norma Oficial Mexicana NOM-051-SCFI/SSA1-2010, Especificaciones generales de etiquetado para alimentos y bebidas no alcohólicas preenvasados-Información comercial y sanitaria, publicada el 5 de abril de 2010 [Modification of the general labelling specifications for pre-packaged food and non-alcoholic beverages of 5 April 2010], Diario Oficial de la Federación [D.O.], 26 de marzo de 2020 (Mex.).

[2] Secretaría de Economía, ‘Fue aprobada la modificación a la NOM 051 sobre etiquetado de alimentos y bebidas’ (Gobierno de México, 26 January 2020) < https://www.gob.mx/se/articulos/fue-aprobada-la-modificacion-a-la-nom-051-sobre-etiquetado-de-alimentos-y-bebidas > accessed 23 November 2024

[3] Secretaría de Economía, ‘Manual de la MODIFICACIÓN a la Norma Oficial Mexicana NOM-051-SCFI/SSA1-2010’ (Gobierno de México),

<https://www.gob.mx/cms/uploads/attachment/file/653733/MANUAL_NOM051_v16.pdf > accessed 23 November 2024

[4] Cruz-Casarrubias et al., ‘Estimated effects of the implementation of the Mexican warning labels regulation on the use of health and nutrition claims on packaged foods’ (2021) 18(76) International Journal of Behavioral Nutrition and Physical Activity 1, 2

[5] NORMA Oficial Mexicana NOM-051-SCFI/SSA1-2010, Especificaciones generales de etiquetado para alimentos y bebidas no alcohólicas preenvasados-Información comercial y sanitaria [General labelling specifications for pre-packaged food and non-alcoholic beverages], Diario Oficial de la Federación [D.O.], 5 de abril de 2010 (Mex.).

[6] Mariel White and Simon Barquera, ‘Mexico Adopts Food Warning Labels, Why Now?’ (2020) 6(1) Health Systems and Reforms 1, 3

[7] ibid, 1.

[8] Villaverde, P., Tolentino-Mayo, L., Cruz-Casarrubias, C. et al., ‘Hypothetical impact of the Mexican front-of-pack labeling on intake of critical nutrients and energy’ (2023) 42(124) Journal of  Health, Population and Nutrition 1, 2

[9] ibid,  4.

[10]International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3, art 12.

[11] UN Committee on Economic, Social and Cultural Rights Comment no. 14: The Right to the Highest Attainable Standard of Health (Art. 12). E/C.12/2000/4 (2000) para 11.

[12] Andrés Constantin, Oscar A. Cabrera, Belén Rios et al., ‘A human rights-based approach to non-communicable diseases: mandating front-of-package warning labels’ (2021) 17(85) Global Health 1, 3

[13] UN Committee on Economic, Social and Cultural Rights Comment no. 14: The Right to the Highest Attainable Standard of Health (Art. 12). E/C.12/2000/4 (2000) para 33.

[14] ibid

[15] Villaverde, P., Tolentino-Mayo, L., Cruz-Casarrubias, C. et al., 1, 3

[16] UN Committee on Economic, Social and Cultural Rights Comment no. 14: The Right to the Highest Attainable Standard of Health (Art. 12). E/C.12/2000/4 (2000) para 35 and 51.

[17] Mariel White and Simon Barquera, ‘Mexico Adopts Food Warning Labels, Why Now?’ 1, 2

[18] Eric Crosbie, Margarita Gabriela Otero Alvarez, Michelle Cao et al. ‘Implementing front-of-pack nutrition warning labels in Mexico: important lessons for low- and middle-income countries’ (2023) 26(10) Public Health Nutrition 2149, 2158

[19] Cruz-Casarrubias et al., ‘Estimated effects of the implementation of the Mexican warning labels regulation on the use of health and nutrition claims on packaged foods’ 1, 9

[20] Eric Crosbie, Margarita Gabriela Otero Alvarez, Michelle Cao et al.‘Implementing front-of-pack nutrition warning labels in Mexico: important lessons for low- and middle-income countries’ 2149, 2156-58