Act 27,642, called “Act for the Promotion of Healthy Eating” (enacted by the National Executive Branch on 11/11/21 and published in the Official Gazette on 11/12/21), sets forth, in its section 4th, that food[1] and non-alcoholic beverages[2], packaged in the absence of customer and commercialized in the Argentine Republic, in which final composition, the content of critical nutrients and their energy value exceed the established values as set forth by the law, must include an indelible “warning stamp”, per each critical nutrient in excess and for the excess of calories.
According to the list contained in subsection d) of section 2nd of the Act, critical nutrients are the following: (i) sugars, (ii) sodium, (iii) saturated fats and (iii) total fats.
As applicable, the warning stamps – that must be included in the main face of packages[3] – must read as follows:
“EXCESS OF SUGARS”
“EXCESS OF SODIUM”
“EXCESS OF SATURATED FATS”
“EXCESS OF TOTAL FATS” or
“EXCESS OF CALORIES”
In addition to these warning stamps, if food or non-alcoholic beverages packaged in the absence of customer contain sweeteners, their container must include, immediately below the warning stamps, the following preventive legend:
“IT CONTAINS SWEETENERS, NOT RECOMMENDED FOR CHILDREN”.
If it contains caffeine, the container of the food or non-alcoholic beverage must include, also immediately below the warning stamps, the following preventive legend:
“IT CONTAINS CAFFEINE. AVOID IN CHILDREN”.
The legends that warn on the content of sweeteners or caffeine, as set forth in section 2nd, subsection i)[4], are also “warning stamps”, even though, in my opinion, they shall not comply with the provisions of subsections a) and b) of section 5th of the Act[5], which are mandatory for the rest of them.
In spite of the wording of the regulation of section 4th that provides that the legends “IT CONTAINS SWEETENERS, NOT RECOMMENDED FOR CHILDREN” and “IT CONTAINS CAFFEINE. AVOID IN CHILDREN” must be included “immediately below the warning stamps”, I understand that they must be included in any food and non-alcoholic beverage, packaged in the absence of the customer,that contain sweeteners or caffeine. Even if these foods or non-alcoholic beverages should not include any of the remaining warning stamps -provided that in their final composition the content of critical nutrients, their energy value must not exceed the values set forth in the Act-.
Beyond my interpretation – that is arguable, due to the wording of the regulation under analysis – it is desirable that the regulatory decree, that the National Executive Branch should issue within ninety (90) days following the enactment of the Act[6] , may clear for one and the other side, the uncertainty generated by its wording.
In addition, the size of the letters with which warnings on sweeteners and caffeine shall be included, must be still clarified, since both, the regulations of the Argentine Food Code and the Fair Commercial Practices rules, which are not simultaneous, may be considered applicable to this issue.
In view of the above, it is clear that the regulation under analysis considers, in the end, that food and non-alcoholic beverages, packaged in the absence of the customer, that contain excess of sugars, sodium, saturated fats or total fats do not contribute to healthy eating. Not even those containing sweeteners or caffeine, although in this case it is limited to child nutrition.
Within said framework, sections 9th and 10th of Act 27,642 set forth strict prohibitions – which constitutional validity could be debatable – both for the labels of said food and their advertising.
→ Prohibitions in containers
The prohibitions applicable to the labels are referred to in Section 9th, which forbids, in its subsections a), b) and c), to include in the containers of food and non-alcoholic beverages that contain any warning stamp the following:
(i) Supplementary nutritional Information (section 9th, subsection a). Hence, that it is forbidden to include in containers any expression or representation that states, suggests or implies that a food has particular nutritional properties, specifically- but not only – in connection with its energy value and its content of proteins, greases, carbohydrates and dietary fiber, as well as its content of vitamins and minerals.[7]
(ii) Logotypes or phrases sponsored or guaranteed by scientific societies or civil associations (section 9th, subsection b).
(iii) Children’s characters, animations, cartoons, celebrities, athletes, pets and interactive elements (section 9th, subsection c).
(iv) The participation or promise of participation in contests, games, sports, musical, theatrical or cultural events, related to the purchase of said products (section 9th, subsection c).
(v) The delivery or promise to deliver prizes, gifts, accessories, adhesives, visual-spatial games, digital downloads or any other element (section 9th, subsection c).
The prohibitions set forth in section 9th, subsection c) – mentioned in paragraphs (iii), (iv) and (v) above – appear conditioned by the last phrase of said subsection and consequently they would apply– only – when “… they incite, promote or encourage the consumption, purchase or election…” of the products.
It follows from it that the legislator has considered that sometimes, the inclusion of children’s characters, animations, cartoons, celebrities, athletes, pets and interactive elements, the participation or promise of participation in contests, games, sports, musical, theatrical or cultural events, related to the purchase of said products and the delivery or promise to deliver prizes, gifts, accessories, adhesives, visual-spatial games, digital downloads or any other element does not incite, promote or encourage the consumption, purchase or election.
It is imposed that the regulation of the Act should set objective parameters that allow a clear interpretation of the regulation of subsection c), making possible to elucidate when the forbidden behaviors do not incite, promote or encourage the consumption, purchase or election of the products. For example, if applicable, by providing that the prohibitions are set forth when the promotional actions are especially directed to children and teenagers.
→ Prohibitions on advertising, promotion and sponsoring
The applicable prohibitions on advertising, promotion and sponsoring of food and non-alcoholic beverages packaged in the absence of customer, which contain at least one (1) warning stamp, are included in section 10 of the Act.
Said regulation, in the first place, forbids every kind of advertising, promotion and sponsoring “that is especially directed to children and teenagers.”
Again, it is essential that the regulatory decree set forth objective parameters that allow the administered parties to clearly understand when it will be considered that the advertising, promotion or sponsoring is “especially directed” to children and teenagers. Avoiding hence, the path of trial and error, that would cause a clear waste of resources of individuals and the waste of the jurisdictional activity.
In addition to said special prohibition, section 10, in the other cases of advertising, promotion or sponsoring through any means, of food packaged in the absence of customer and of non-alcoholic beverages containing at least one (1) warning stamp:
(i) It forbids to “highlight” supplementary nutritional statements that point out positive or nutritional qualities of the products, “so as not to encourage confusion with respect to nutritional contributions” (section 10, subsection a).Note that the regulation does not forbid to “include” (meaning to place something or someone within a thing) supplementary nutritional statements but to “highlight” (meaning to point out, emphasize something making it evident).
It is clear, then, that the inclusion of supplementary nutritional statements is allowed, provided that – let’s say – they are discretely mentioned in the advertising, with seriousness and propriety. It would ease the work of interpretation of the regulation, for those of us who must issue an opinion on this matter, that the regulatory decree – once again – should give objective guidelines on the inclusion of the supplementary nutritional information dispelling doubts.
(ii) It sets forth that the warning stamps corresponding to the product in question must be visualized or set forth in whole each time the container is displayed (section 10, subsection b);
(iii) It forbids including children’s characters, animations, cartoons, celebrities, athletes or pets and interactive elements (section 10, subsection c);
(iv) It forbids the delivery or promise to deliver prizes, gifts, accessories, adhesives, visual-spatial games, digital downloads or any other element (section 10th, subsection c).
(v) It forbids the participation or promise of participation in contests, games, sports, musical, theatrical or cultural events, (section 10, subsection c).
Like in the case of labeling, the prohibitions set forth in section 10, subsection c) – mentioned in paragraphs (iii), (iv) and (v) above – appear conditioned by the last phrase of this subsection and consequently would be applicable – only – when “… they incite, promote or encourage the consumption, purchase or election…” of the products.
And it seems obvious to me that it is necessary that the regulations set objective parameters allowing a clear interpretation of the regulation, so as to explain easily when the behaviors that it forbids do not incite or promote or encourage the consumption, purchase or election of the products.
Finally, subsection d) of section 10 sets forth that the advertising, promotion and sponsorship of food and non-alcoholic beverages packaged in the absence of customer “Forbid the promotion or delivery for free” (sic). A regulation that, apart from its poor wording – to say the least – would seem to forbid not only the advertising of the delivery of said products for free but also the delivery without costs (and without advertising).
→ By way of conclusion
It is easy to observe that Act 27,642 ostracizes advertising and the sales promotions with delivery of prizes or gifts of food and non-alcoholic beverages packed in the absence of the customer and which contain at least one (1) warning stamp.[8]
Said perpetual banishment tries to justify itself in subsections a) and c) of section 1st of the Act, in public health issues.[9]
Aside from this intended justification – that could be understood fit to establish the obligatory nature of the inclusion of the warning stamps in their packages and inclusive, maybe, to forbid advertising or promotional actions when they are especially addressed to minors – it seems to me excessive and consequently unreasonable, that the prohibitions to make advertising and promotions reach actions addressed to adults. And, as well, that our laws entail – or at least should entail – that they act with judgment, intent and freedom.
Said absolute prohibitions seem to me more unjustified – if that is possible – when the law, by contrast, allows other players of the local market, who commercialize what hundreds of articles in the Internet qualify as “junk food”, [10] to continue doing said promotions and advertisings. Even when they are addressed to children (as the well-known little box that makes toddlers happy with toys of the hottest movies), by the mere fact that the food they commercialize are not packed in the absence of the public.
Because food and non-alcoholic beverages that commercialize said players are not packed in the absence of the public either, even though they are delivered in boxes and paper cups, they must contain the warning stamps that food packed in the absence of the public must show.
Perhaps there is a scientific justification to set aside in that case the public health reasons argued by the law to impose obligations and prohibitions to food and beverages packed in the absence of the customer – and to grant them said tremendous competitive advantage.
Since I do not know said scientific justification, they seem to me “the things that you are about to see”.[11]
Buenos Aires, November 18, 2021.
[1] The Argentine Food Code defines “Food” in subsection 2 of its section 6, which reads as follows:
2. Food: every substance or mix of natural or processed substances which ingested by human beings provide their body with the necessary materials and energy for the development of their biological processes. The designation “food” includes also the substances or mix of substances that are ingested by habit, customs, or as coadjutants, whether or not they have a nutritional value.
[2] The definition of “Non-alcoholic Beverages” is set forth in Argentina by section 996 of the Argentine Food Code (Text according to the Joint Resolution SPyRS N° 009 and SAGPyA N° 106 dated 3/6/00), that reads as follows:
“It is understood as Non-alcoholic Beverages, the carbonated or uncarbonated beverages, ready for consumption, prepared with one or more of the following components: Juice, Juice and Pulp, Fruit or Vegetable Juice Concentrates, Milk, Extracts, Infusions, Macerations, Percolations of vegetable substances contemplated in this Code, as well as authorized Aroma/Flavor enhancers. The water used in its elaboration shall meet the requirements of Sections 982 or 985. They shall have the normal color, smell and flavor according to their composition. They must not contain ethyl alcohol in quantities exceeding 0,5% in volume.
The following may be added to them:
a) Nutritive sweeteners authorized by this Code.
b) Carbon dioxide that complies with the requirements of Section 1066 at a pressure of not less than 1,5 atmospheres measured at 20°C.
c) Acidulants, colorants, conservators, stabilizers, emulsifiers, thickeners, flavor enhancers, foaming agents, humectants, acidity regulators, antioxidants, aroma-flavor enhancers, defoamers and sequestrants mentioned in Resolution (former Ministry of Health and Social Welfare) N° 587/97 and in the usage conditions pointed out therein.
Products containing Tartrazine shall inform it in the labelling by its specific name, close to the product name.
Products containing Sulphur dioxide shall inform it in the labelling as set forth in Resolution (former Ministry of Health and Social Welfare) N° 3/95.
d) When ascorbic acid is added as antioxidant the product shall not mention in the label “It contains Vitamin C”.
e) In uncarbonated beverages the addition of Sodium Hexametaphosphate as sequestrant agent shall be admitted with a maximum limit of 0,1 g/100 ml (1.000 ppm).
f) Cremogenates that comply with the requirements of Section 1051 of this Code may be used in a quantity not exceeding 3% w/v, per each 10% v/v of juice, and it shall be informed in the label. Under no circumstances may it be computed as juice.
Every manufacturer and/or bottler of non-alcoholic beverages, either carbonated or uncarbonated, must keep a record of the health, safety and bromatological controls carried out. Said controls shall comprise those made on raw materials, containers, in the critical control points during elaboration and packaging and on the finished product “.
[3] The “main face”, pursuant to the definition contained in section 2nd, subsection h) of Act 27,642, is the part of the labeling containing in its most important forms the sales name of the product and the trademark or logotype, if any.
[4] Subsection i) of section 2nd reads as follows:
“Warning stamp: a stamp that appears graphically in the main face or front part of the container of the products, that consists in the presence of one or more images as a warning that specified that the product has excessive levels of critical nutrients and/or energy value in relation to certain indicators. It is understood also the legends by the content of sweeteners or caffeine;”
[5] When subsections a) and b) of section 5th mentioned above, set forth the features of the warning stamp, read as follows:
“The warning system must have the following provisions:
a) The stamp shall have an octagonal shape, with black color and white edge and capital letters;
b) The size of each stamp shall never be of less than five per cent (5%) of the surface of the main face of the container;”
[6] According to the order contained in section 23, that reads: “Regulation. The National Executive Branch must regulate this Act within ninety (90) days following its enactment and must issue the supplementary regulations that prove to be necessary for its application.”
[7] Pursuant to the definition of the Argentine Food Code, in its Section 235 fifth:
2.1. Supplementary Nutritional Information.
It is any expression or representation that states, suggests or implies that a food has particular nutritional properties, specifically- but not only – in connection with its energy value and its content of proteins, greases, carbohydrates and dietary fiber, as well as its content of vitamins and minerals.
The following is not considered supplementary nutritional information:
a. The mention of substances in the list of ingredients
b. The mention of nutrients as a mandatory part of the nutritional label
c. The quantitative or qualitative statement of some nutrients or ingredients or the energy value in the labeling when it is required by the specific legislation.
2.2. The statements related to the content of nutrients and/or energy value comprise:
2.2.1. Absolute Content.
It is the Supplementary Nutritional Information that describes the level or quantity of the nutrient and/or energy value present in food.
2.2.2. Comparative content.
The Comparative Supplementary Nutritional Information is the one that compares to a higher or lower degree the level/s of one or more nutrients and/or the energy value of two or more foods.
[8] Except that when the regulatory decree, – eventually – clarifies in the future the meaning of the conditioning to the incitement, promotion or encouragement for the consumption, purchase or election allows a different interpretation.
[9] Section 1st of Act 27,642, insofar as it is relevant here, reads as follows:
“Purpose. The purpose of this law is the following:
a) To guarantee the right to health and to proper eating through the promotion of healthy eating, by offering simple and understandable nutritional information of packaged food and non-alcoholic beverages to encourage assertive and active decision-making, and protect consumers’ rights;
c) Encourage the prevention of malnutrition in population and the reduction of chronic non-communicable diseases.”
[10] For example, with respect to well-known hamburger chains: https://www.monografias.com/trabajos20/mcdonalds/mcdonalds.shtml, https://www.businessinsider.es/estragos-comer-hamburguesa-mcdonalds-burger-king-908625, https://www.resumenlatinoamericano.org/2018/04/03/jamie-oliver-y-su-lucha-contra-mcdonalds-y-la-comida-basura/, https://www.elconfidencial.com/alma-corazon-vida/2015-09-24/esto-es-lo-que-pasa-en-tu-cuerpo-justo-despues-de-comerte-un-big-mac-y-no-mola-nada_1033749/, among plenty of others.
[11] In words of Alfonso VI, in the “Cantar del Mío Cid”, afterwards repeated by Cervantes’ Don Quixote.