Advertising, Marketing & Promotion Comparative Guide

1 Legal framework

1.1 What are the main legislative and regulatory provisions that govern advertising in your jurisdiction?

Mexican advertising law was recently reformed through the introduction of two important new statutes:

• the Outdoors Advertising Law of Mexico City.
• Influencer Guidelines by Federal Consumer Protection Agency

Many other statutes may also apply to advertising and marketing, such as:

• the Federal Consumer Protection Law;
• the General Health Law;
• the Industrial Property and Copyrights Law;
• the Civil Code; and
• the Data Protection Act.

1.2 Which bilateral or multilateral instruments or treaties with effect in your jurisdiction (if any) have particular relevance for advertising in your jurisdiction?

Three instruments have relevance for advertising in Mexico:

• the United States-Mexico-Canada Agreement;
• the Vienna Agreement; and
• the Berne Convention.

1.3 What industry codes or guidelines have relevance for advertising in your jurisdiction?

• Mexican Norm for e-commerce,
• Mexican Norm for advertising derived from the Health Act,
• Outdoors Advertising Law of Mexico City,
• Influencers Guidelines by PROFECO

1.4 Which bodies are responsible for implementing and enforcing the advertising regime in your jurisdiction? What is their general approach in doing so?

Multiple authorities are involved in the regulation of advertising and marketing practices, including the following:

• The Consumer Protection Agency (PROFECO) is responsible for regulating business-to-consumer relationships and arbitrating disputes between consumers and product or service providers. Its procedures are of an administrative nature.
• The Mexican Industrial Property Agency is responsible for handling industrial property filings and IP litigation from an economic/industrial perspective. Its procedures are of an administrative nature.
• The Mexican Food and Drug Administration is responsible for regulating and protecting the population from health risks. All products relating to sanitary and health fields are a matter of interest for this entity, which ensures their safety, efficacy and security to humans. Its procedures are of an administrative nature.
• The Attorney's General Office is responsible for investigating and prosecuting crimes at the federal level.
• The federal civil tribunals are responsible for hearing disputes and litigation of a civil and commercial nature.
• The Federal Institute for Access to Public Information and Data Protection is responsible for handling data protection procedures and complaints. It regulates the relationships between data subjects and parties that manage their data. Its procedures are of an administrative nature.
• The Federal Telecommunications Institute (IFT) is responsible for regulating and supervising compliance with the Federal Telecommunications and Broadcasting Law. It monitors and sanctions media owners that do not respect the maximum time established for advertising between actual channel content.
• The Ministry of the Interior is responsible for authorising and supervising the promotion of gambling, contests and raffles in their different modalities.
• The Ministry of Health is responsible for authorising the transmission of advertising relating to:
• • the practice of medicine and its related activities;
  • food supplements;
  • biotechnological products;
  • alcoholic beverages;
  • medicines;
  • herbal remedies;
  • medical equipment;
  • cosmetics;
  • pesticides;
  • plant nutrients; and
  • toxic or dangerous substances.
• The Advertising Consultive Council, which operates under the The Ministry of Health , is responsible for regulating advertising relating to:
• • health services;
  • food, food supplements and non-alcoholic beverages;
  • infant formula;
  • alcoholic beverages and tobacco;
  • health supplies, drugs, herbal remedies, medical equipment, surgical and healing supplies;
  • hygiene products;
  • cleaning products;
  • perfumes, lotions, cosmetics and beauty products;
  • pesticides, plan nutrients and toxic or dangerous substances; and
  • biotechnological goods.

2 Authorisation and clearance

2.1 Do advertisers need any kind of licence or authorisation in order to operate in your jurisdiction?

Under the Outdoors Advertising Law of Mexico City, the government has established the Advertisers' Registry, in which advertisers must be registered in order to be granted a permit, licence or authorisation in Mexico City.

2.2 Do ads require any kind of clearance before they can be released in your jurisdiction?

The Federal Consumer Protection Agency (Profeco) and the Federal Commission for Protection against Sanitary Risks (COFEPRIS) require pre-approval only for ads relating to certain products, such as medicines and food supplements. Additionally, in order to avoid any conflict with the authority, an advertiser can submit advertising materials for any type of product or service for pre-approval by the Consumer Protection Agency, even if this is not required.

Additionally, food advertising is subject to a permit granted by the Ministry of Interior through the Federal Commission for the Protection against Sanitary Risks, in accordance with the corresponding standards, where:

• the label of the product includes the front labelling system, which establishes the commercial and sanitary information that products must contain, which must clearly and truthfully warn the consumer about the content of critical nutrients and ingredients that represent a health risk when consumed in excess.; and
• it is broadcast on television, in movie theatres, online or through other digital platforms.

Under the new Outdoors Advertising Law of Mexico City, a permit granted by the secretary of mobility of Mexico City is required for advertising materials which are displayed on public sites such as buildings, houses and restaurants.

3 General advertising regime

3.1 What general rules and requirements apply to ads in your jurisdiction?

As a general rule, all information or publicity relating to products or services that is disseminated through any means and in any form must be:

• truthful;
• verifiable; and
• free of text, dialogue, sounds, images, brands, denominations of origin and other descriptions that induce or may induce deception, error or confusion among the public by being misleading or abusive.

3.2 What rules and requirements apply to puffery in your jurisdiction?

In Mexico, puffery may be considered as misleading or false; therefore, the Law on Transparency, Prevention and Combat of Improper Practices in Advertising Contracting provides for the imposition of sanctions on advertisers which are unable to prove that their declarations are true.

Claims that may not be objectively measured may be acceptable and not subject to substantiation, provided that they do not violate the legal principles mentioned above.

3.3 Under what circumstances must claims in ads be substantiated?

There are multiple circumstances in which a claim must be substantiated before the corresponding authority.

Depending on the products or services being advertised, different authorities may be involved – for example:

• the Ministry of the Interior;
• the Health Ministry; or
• the Consumer Protection Authority.

The nature of the Good or services must be considered to decide the different type of claims they would be applying. There could be included in a law or just add them as a good practice.

Strict rules on advertising apply in industries such as:

• pharmaceuticals;
• cosmetics;
• alcohol; and
• gambling;

All products or services must comply with what is stated in the advertising materials.

3.4 What rules and requirements apply to the use of the following? (a) Test results; (b) Survey results and (c) Testimonials.

(a) Test results

First, it should be considered whether the relevant product or service is regulated by a mandatory technical standard:

• If so, testing must be based on the rules, methods and procedures established in the applicable technical standard.
• If it not, there is greater flexibility in relation to the testing to be conducted, although this must still be based on scientific standards.

(b) Survey results

There are no specific regulations on the use of survey results. However, good market practices should be followed to demonstrate that the characteristics or specifications of the relevant products or services are true.

(c) Testimonials

There are no specific regulations on the use of testimonials. However, good market practices should be followed to demonstrate that the characteristics or specifications of the relevant products or services are true.

3.5 What rules and requirements apply to the protection of minors?

The law stipulates that advertising aimed at children may not:

• promote or show illegal or violent conduct, whether through real or animated characters;
• present children or adolescents as sexual objects; or
• promote or incite conduct that could lead to sexual abuse or any other type of abuse, injury or robbery.

3.6 Are certain forms of advertising prohibited in your jurisdiction?

The Law on Transparency, Prevention and Combat of Improper Practices in Advertising Contracting allows any type of advertising, as long as the information is not:

• false;
• misleading;
• abusive; or
• presented in an inaccurate, false, exaggerated, partial, artificial or tendentious way.

Certain types of advertising are prohibited by law – for example, the advertising of:

• guns;
• drugs;
• violent content; or
• any other unlawful activities.

4 Misleading advertising

4.1 On what grounds will an ad be found to be misleading in your jurisdiction? How does the process unfold?

Under Mexican law, misleading advertising or abusive information is understood as advertising or information that refers to characteristics or information related to products or services that:

• may or may not be true; or
• could mislead or confuse the consumer due to the inaccurate, false, exaggerated, partial, artificial or tendentious way in which it is presented.

4.2 If an ad is found to be misleading, what are the consequences for the advertiser?

A misleading advertising issue can be brought before the Consumer Protection Agency. If the issue involves unlawful competition or the discrediting of a third party's trademark, it can be brought before the Mexican Industrial Property Agency. These kinds of cases should be analysed and prosecuted before the authority that is best positioned to hear the case.

4.3 Can the advertiser appeal the decision? If so, what is the process for doing so?

Yes, in case of an unfavourable resolution, advertisers can avail of:

• legal tools such as review recourse before the same authority; and
• judicial tools such as a nullity trial or an amparo appeal.

5 Specific advertising regimes

5.1 What rules and requirements apply to the following types of advertising in your jurisdiction, and what best practices should be considered in each case? (a) Comparative advertising; (b) Promotional marketing (eg, competitions, lotteries and sweepstakes); (c) Interest-based advertising (ie, tailored advertising based on data collected from internet browsing); (d) Native advertising; (e) Influencer advertising; (f) Ambush marketing; (g) Country-of-origin marketing; and (h) Green marketing.

(a) Comparative advertising

The Consumer Protection Law allows for a public comparison to be made between products or services, as long as the information is not:

• false;
• misleading;
• abusive; or
• presented in an inaccurate, false, exaggerated, partial, artificial or tendentious way.

In the same vein, the Industrial Property Law provides that a lawful comparison between products or services will not be deemed to constitute the discrediting of a third-party trademark, as long as it is done for informative purposes.

In addition, the Federal Consumer Protection Law empowers the Consumer Protection Agency (PROFECO) to issue guidelines on comparative advertising in order to ensure that such advertising does not induce consumers into error or confusion.

(b) Promotional marketing (eg, competitions, lotteries and sweepstakes)

Sweepstakes or chance-based contests to be held in the Mexican territory require a prior permit from the Ministry of the Interior.

For skill-based activities in which consumers may be required to make a purchase in order to participate, the organiser must file a notice with PROFECO at least 72 hours prior to the start of the relevant promotion.

(c) Interest-based advertising (ie, tailored advertising based on data collected from internet browsing)

As most targeted/interested-based advertising depends on the use of artificial intelligence, cookies and similar technologies, the local legal framework provides only that users must be notified of:

• the use of these types of technologies (if any); and
• the way in which they can be disabled.

Like the other elements of data processing, this information must be included in the privacy notice.

(d) Native advertising

There are no special rules on native advertising, other than the requirement to comply with the regulations on regular publicity.

(e) Influencer advertising

In 2023, PROFECO, published its Advertising Guide for Influencers. Although not legally binding, the guide sets out a clear path to follow in order to respect the regulation of advertising in digital media in Mexico.

There are no other regulations that address the use of social media platforms. However, specific regulations apply to social media platforms that involve activities relating to e-commerce or the operation of marketplaces (eg, Facebook) – mostly in relation to sellers rather than users.

(f) Ambush marketing

There are no specific regulations that address these matters. However, the Consumer Protection Law sets out parameters and restrictions to detect and eliminate unlawful practices, which potentially include ambush marketing. Therefore, advertisers should take special care to avoid questionable practices that could be considered ambush marketing.

(g) Country-of-origin marketing

The Industrial Property Law provides that:

• signs, phrases, images, sentences, ads and trade names which could deceive or mislead the public cannot be registered; and
• signs that are identical or confusingly similar to geographical areas – whether proper or common nouns – maps, town names or adjectives which indicate the origin of products or services cannot be registered if this could cause confusion or error as to the origin of the products or services.

Among other things, these provisions include expressions such as ‘style', ‘type', ‘manner', ‘imitation', ‘produced in', ‘manufactured in' and other similar terms that could create confusion for consumers or constitute unfair competition.

(h) Green marketing

There are no regulations on green marketing, sustainability claims or greenwashing. However, the government has implemented different programmes to encourage companies to apply green marketing measures.

Foremost among these is Plan Verde – a campaign that sets out strategies and actions to put Mexico on the road to sustainable development. This programme has only been implemented locally.

6 Direct marketing

6.1 What rules and requirements apply to the following types of direct marketing in your jurisdiction, and what best practices should be considered in each case? (a) Telemarketing; (b) Email marketing; (c) Direct mailings; and (d) Opt-out marketing.

As all of these practices involve the use of personal data, as well as consumer law considerations, it is necessary to comply with Mexican data protection law by bearing in mind the following for telemarketing, email marketing and direct mailings:

• If personal data is obtained indirectly, the data controller must make available a simplified version of its privacy notice on first contacting the data subject.
• The data subject must be informed of how he or she can access and review a comprehensive version of the privacy notice.
• The data subject must be informed of how he or she can exercise the right to object to the use of his or her personal data for secondary purposes. Opt-out mechanisms are a good option for making possible the direct exercise of this right.
• Direct mailing campaigns should consider the quality principle, under which the data controller must verify that the personal data is correct and up to date. A contract should also be signed with the courier service provider (or similar service provider), highlighting its role, responsibilities and obligations in the data processing. It must further be ensured that all third parties (data processors and sub-processors) are trustworthy and have implemented the necessary security measures to guarantee the protection of personal data.
• For opt-out marketing, the data controller (and/or its data processors) should create and implement an exclusion list of those data subjects who have not consented to the use of their personal data for marketing purposes. The legal relationship between the data subject and the data controller should not be conditioned on the exercise of this right.

7 Indirect marketing

7.1 What rules and requirements apply to the following types of marketing in your jurisdiction, and what best practices should be considered in each case? (a) Product placement; (b) Sponsorship; and (c) Loyalty programmes.

(a) Product placement

There are no specific regulations relating to product placement; in any case, the Industrial Property Law will apply.

Previously, unauthorised product placement was regarded as trademark use and was thus vulnerable to infringement actions. However, following the amendment of the Industrial Property Law, trademark infringement was redefined and product placement no longer falls under this definition.

However, if the image of a trademark or its owner is affected, a civil action may be initiated.

(b) Sponsorship

The Consumer Protection Agency recently issued its Advertising Guide for Influencers, which serves as a reference tool for influencers and content creators, consumers and the general public in order to ensure compliance with the advertising provisions. However, as this is only a guide, its enforceability is complicated.

(c) Loyalty programmes

There are no laws or regulations that specifically apply to loyalty programmes. However, the general provisions of the Federal Consumer Protection Law will apply. All terms and conditions must be presented by the provider of the products or services to consumer, and must be fulfilled. Non-compliance in this regard will be deemed a violation of the law.

8 Industry-specific regimes

8.1 What regulatory regimes apply to advertising in the following industries in your jurisdiction, and what best practices would you highlight? (a) Gambling (including lotteries); (b) Alcohol; (c) Tobacco; (d) E-cigarettes; (e) Pharmaceuticals (prescription and over-the-counter); (f) Therapeutic products (ie, products which claim to have health benefits but which are not medicines or pharmaceuticals, such as vitamin supplements); (g) Food; and (h) Financial products and services.

(a) Gambling (including lotteries)

Very specific and strict rules apply to the advertising and marketing of gambling activities in Mexico under the Federal Law on Betting and Gambling.

For example:

• ads may only be published/broadcast if the relevant company has been granted a permit by the Ministry of the Interior;
• advertising must be clear and precise to avoid inducing the public into error or misleading or confusing them about the relevant products or services; and
• the ad must include:
• • the permit number of the advertiser;
  • information stating that betting and gambling are prohibited for minors; and
  • messages inviting individuals to bet/gamble in a responsible manner and for the main purpose of entertainment and fun.

(b) Alcohol

To advertise alcoholic beverages, advertisers must have a permit from the Ministry of Health.

Depending on the specific case, ads for certain products:

• must include a message of social responsibility regarding the consumption of such products; and
• are subject to time restrictions when broadcast on television and radio.

(c) Tobacco

The advertising, promotion and sponsorship of tobacco products in any form and in any medium is prohibited.

(d) E-cigarettes

E-cigarettes are prohibited in Mexico; therefore, any form of advertising, promotion and sponsorship of such products in any medium is forbidden.

(e) Pharmaceuticals (prescription and over the counter)

Sanitary registrations must be obtained for the commercialisation of medicines and permits are required for the advertising of medicines.

The advertising of medicines is subject to strict rules, which vary depending on whether the respective medicine is intended for the general public or for medical personnel.

(f) Therapeutic products (ie, products which claim to have health benefits but which are not medicines or pharmaceuticals, such as vitamin supplements)

An ad cannot attribute characteristics, results and qualities to a product or service if it does not in fact have them. It is s important to conduct studies to support the claims made in advertising. Advertising permits must further be obtained from the The Ministry of Health thru the Federal Commission for Protection against Sanitary Risks (COFEPRIS)

There are restrictions on advertising with people since it can generate an aspirational idea.

Certain therapeutic products, such as food supplements and cosmetics, are subject to stricter restrictions, in which the language used to advertise the products must be taken into account.

(g) Food

Rules on advertising derived from the Health Act set out specific guidelines and restrictions in relation to the advertising of food. Special authorisation is required to advertise certain products. For example, the labelling of pre-packaged food and non-alcoholic beverages manufactured domestically or abroad must clearly and truthfully warn consumers of the content of critical nutrients and ingredients that represent a health risk when consumed in excess.

(h) Financial products and services

Specific authorisation from the Central Bank and the National Banking and Securities Commission may be required to advertise certain financial products and services, depending on the permits granted to undertake specific financial/monetary activities.

9 Enforcement

9.1 On what grounds can the following parties take action against ads in your jurisdiction? (a) Competitors; (b) Consumer associations; and (c) Members of the public.

(a) Competitors

It is possible to initiate actions against competitors before the Consumer Protection Agency (PROFECO) if a competitor attributes a false or inaccurate characteristic or quality to products or services in order to obtain a competitive advantage affecting the sphere of other competitors.

For example, where a company claims in an ad that its service is the best and fastest on the market without any proof, a competitor can initiate an action.

(b) Consumer associations

It is possible to initiate actions against providers before PROFECO for misleading advertising.

For example, an ad may be misleading if a company claims that its products or services have certain characteristics when in fact they do not.

(c) Members of the public

Anyone who has been affected by any type of fraudulent advertising can initiate an action before PROFECO.

9.2 What mechanisms are available to them to do so, and what are the pros and cons of each?

• Conciliation before PROFECO: Through this procedure, PROFECO seeks to reach agreement between the parties and end the conflict in an amicable and peaceful manner, with both parties agreeing on the solution.
• Arbitration: A consumer and a supplier can request PROFECO to intervene as arbitrator to resolve a dispute relating to consumer matters, in which simple rules are established for the parties.
• Administrative proceeding: This action is initiated if parties cannot reach agreement otherwise. The complainant must demonstrate the damage that has been suffered due to the acquisition of products or services in trial before PROFECO.

9.3 How does the procedure typically unfold and how long does it take?

• Conciliation: This process can take between six and eight months, given that PROFECO needs time to arrange the meetings between parties.
• Arbitration: This process can take between six and eight months, given that PROFECO needs time to arrange the meetings between parties.
• Administrative proceeding: As this process takes the form of a trial, it can take around one year to obtain a resolution.

9.4 What costs are incurred?

There are no government fees payable; only professional fees where attorneys are involved in the procedure.

9.5 What defences are typically raised by the advertiser?

The main goal of the advertiser is to demonstrate that:

• its ad complies with all legal requirements; and
• the claimed characteristics of its products or services are indeed true.

However, this may vary from case to case, depending on the particularities.

9.6 What remedies are available?

Fines of between MXN 600.00 and MXN 2,500,000 may be imposed; these sums may be doubled if the advertiser continues with its illegal activities.

9.7 Can the decision be appealed? If so, what is the process for doing so?

Yes, a decision can be appealed before the same authority (PROFECO) and through other administrative instances:

• Review recourse: This action is filed before PROFECO. A superior will analyse the resolution, considering the arguments presented in the document filed by the affected party.
• Nullity trial: This action is handled by the Federal Court of Administrative Affairs, which will analyse the resolution in addition to the arguments presented by the affected party.
• Amparo appeal: This action is heard by the Federal Circuit Court, which will analyse the constitutionality of the resolution and consider whether a right has been violated during the proceedings.

10 Trends and predictions

10.1 How would you describe the current advertising landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

In recent years, the Mexican authorities have taken special interest in regulating advertising practices due to the growing relevance of social networks on the market. Many parliamentary groups are working on different bills with the aim of regulating various aspects related to social media advertising.

For example, on 21 August 2023, the Consumer Protection Agency published its Advertising Guide for Influencers. This explains different legal issues in clear and simple language, which can be easily understood by content creators or anyone involved in social media advertising practices, to help them comply with the regulatory provisions governing advertising in Mexico. While the guide is not binding, it presents a clear path to follow in order to respect the regulation of advertising in digital media in Mexico.

11 Tips and traps

11.1 What are your top tips for companies that advertise their products and services in your jurisdiction and what potential sticking points would you highlight?

Companies should keep up to date with new trends in advertising regulation, given that significant legislative changes have been introduced in recent years. Their legal teams should also review all advertising materials and products before releasing them, to avoid conflicts with the authorities due to regulatory non-compliance.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.