Considerations on the New Front-of-Pack Labeling of Foods Bill (or How to Explain to Our Kids That Kinder Surprise Eggs Have No Surprise Inside)

The following are considerations on the new Front-of-Pack Labeling of Foods bill in Argentina, which secured initial approval in the Senate on October 29, 2020. At present, although the bill was sent to the General Legislation, Social Services and Public Healthcare Commission, Consumer, Users and Competition Defense, the Chamber of Deputies has not released an opinion. However, the draft shall be included among those to be discussed in Extraordinary Sessions, because of which we should have news any time soon.

As to what was specifically discussed in the Committee meetings, different sectors spoke out, some of them wholly or partially supporting the draft, while others raising concerns or voicing criticism against specific points of the draft text. We think it’s relevant to focus on the following points:

• PAHO (PANAMERICAN HEALTH ORGANIZATION) NUTRIENT PROFILE: there are concerns about using the PAHO nutrient profile, which is not used in any other country in the world, except in Mexico for the last two months. Because calculations are solely based on calories, consumers are provided biased information.
• FUTURE HARMONIZATION IN THE MERCOSUR: Mercosur’s industrial sector’s main request is that the law does not preclude the block’s future alignment. In this regard, it would seem that the ideal solution is to apply harmonized nutrition labelling in the whole Mercosur region.
• ADAPTATION PERIOD: there is a request to extend the deadline to 3-4 years.
• CLAIMS OR COMPLEMENTARY NUTRITION FACTS: the bill forbids any nutrition claims on stamped products. Other features that may be important, such as fortification with vitamins, minerals, fiber, etc., are not to be highlighted, therefore denying consumers relevant information and providing disincentives to industries.
  As for warning labels, the bill foresees black octagon labels with white lettering and contrast borders. They should take up at least five percent of the package’s whole front surface, and not be either fully or partially covered by other elements. Warning labels do not exclude showing mandatory nutritional information required by the Argentine Food Code, which should remain in place on food packages.

The bill also regulates advertising and promoting foods and beverages with at least one warning label. So far, only broad definitions are considered, among which are the following:

ADVERTISING AND PROMOTION: any form of communication, recommendation or commercial action with the aim, effect or likely effect to directly or indirectly publicize or promote a product or its use.

ENDORSEMENTS: All form of contribution to any act, activity or person with the aim, effect or likely effect of directly or indirectly promoting a product, its use, a trademark or a corporation.

CLAIM OR COMPLEMENTARY NUTRITION FACTS: any representation that states, suggests or implies that a food or beverage has particular nutritional properties, including but not limited to its energy value and content of protein, fat and carbohydrates, as well as the content of critical nutrients, vitamins and minerals.

Doubtless, Draft Article 10 will have the greatest impact regarding legal advertising and marketing as it forbids all “beverage advertising, promotion or sponsorship with at least one label that are aimed at children and teenagers”. Likewise, it limits advertising, promoting or sponsoring beverages with at least one label, through any form of media, even when addressed to an adult public.

These are only a few of the bill’s relevant issues which will have a distinct impact on the way brands communicate their products. If passed, there will be a great deal of uncertainty in the industry. The question arises as to what will happen with registered trademarks that will not be able to be used in marketing their products because of these restrictions. Will they be revoked? In advertising, what are the parameters to determine if advertising is targeting children? Will the ban extend to catchy slogans directed, for example, at a teenage public?

At this point, there are many questions and few answers. Doubtless, the experience of neighboring countries that enforce similar regulations, as well as cases decided in comparative law, will serve as a guide and beacon, both for local trademarks as well as for regulators. After all, if this bill were to finally pass, marketing teams will have to rethink communication strategies, trademark owners will speak out in defense of their property rights, and those of us who offer expertise on regulatory matters and legal marketing will have to be prepared to walk our clients through the process. Lastly, as parents, we will also have some explaining to do when our kids fail to find the long-awaited surprise in their Kinder eggs.