Imported products and services must comply with regulatory requirements that can be imposed by various authorities in Mexico, as Jorge Gómez and Jonathan Rangel of Dumont Bergman Bider & Co describe.
For the past few years, the global economy has been driven by strong commercial exchanges all around the world that have led to a rise in imports and exports. Each company does its best to enter into strategic foreign markets, which represent an important asset for economic development.
Fortunately, Mexico finds itself in a strategic location for companies wishing to enter the North American market. The country has experienced substantial changes and developments on political, economic and social levels that have encouraged it to take, along with Brazil, one of the leading positions in Latin America. As a result, investors find Mexico to be a key country on their way to the North American market.
In this regard, the importation of products becomes one of the most significant activities for foreign investors. Most of them focus their attention on issues such as tax and the market, leaving aside other issues that play an important role in importation and further commercialisation.
According to Mexican law, products and services must comply with certain regulatory requirements that can be imposed by customs authorities, the Consumer Protection Federal Agency (PROFECO), the Federal Commission for the Protection against Sanitary Risk (COFEPRIS), or the Federal Telecommunications Institute (IFT).
The nature, composition, fate and characteristics of those products determine which regulations have to be complied with. In this article, we would like to discuss some of the regulations and requirements, mainly the official Mexican standards (NOMs), which have to be met when importing products into Mexico.
NOMs
Most regulations applicable to products or services are provided by NOMs. These are mandatory technical regulations that establish guidelines for a product to be manufactured or a service to be performed.
NOMs provide the minimum characteristics, guidelines, requirements and specifications that products and services (processes, methods and installations, but also activities) must comply with when they are commercialised or offered in the Mexican market, in order to avoid or limit the risk that consumers, animals, vegetables or the environment are subjected to.
If the relevant authority determines—through a random verification—that a manufacturer, producer, retailer, importer or service provider does not comply with or violates NOMs provisions, the authority may impose a fine on the business, close it, restrict it from importing or exporting goods, or subject it to any other administrative sanctions.
PROFECO enforces compliance with certain products or services with NOMs (which are publicly available), by means of random verification of manufacturers, producers, retailers, importers or service providers. During that verification, they have to prove, through an administrative procedure, that their products meet the relevant regulations.
It is worth mentioning that certain organisations are legally authorised to issue compliance certifications with NOMs that may be requested by customs authorities or PROFECO, for import procedures or routine verifications respectively.
Market authorisations (MAs) and sanitary registrations
In addition, MAs from COFEPRIS shall be obtained for certain special cases. Accordingly, both innovators and generics manufacturers should be aware of the existing link requirement between the Mexican Patent and Trademark Office (IMPI) and COFEPRIS.
This link consists of the publication of a special list of some specific patented drugs, mainly compounds, compositions and subsequent uses of active ingredients that COFEPRIS checks before granting MAs for medicines. Only patent owners or licensed third parties are allowed to commercialise a medicine protected by patent laws. Moreover, generics manufacturers may initiate tests to apply for an MA within the three years before the relevant patent expires. It is important to know that no patent extension is currently available in Mexico for any type of invention.
Furthermore, in the case of medicines, health supplies, food, alcohol, tobacco products, plant nutrients or pesticides, COFEPRIS may issue sanitary registrations, permits or licences in order to promote compliance with applicable sanitary regulations. COFEPRIS can also impose several regulations covering the commercial information applicable to drugs and other health supplies.
"Only patent owners or licensed third parties are allowed to commercialise a medicine protected by patent laws."
In order to enforce compliance of these products with applicable sanitary and commercial information regulations, COFEPRIS is entitled to verify compliance and issue fines if such requirements are not met. Furthermore, if these are not complied with before customs authorities, the goods’ importation or exportation process may be denied.
In cases of electronic devices that use the radio spectrum, the IFT may issue certifications of approval as proof that the relevant products do not interfere with the radio spectrum. To enforce compliance with applicable regulations, IFT is entitled to carry out verifications and issue fines if the regulations are not met. Furthermore, if such regulations are not complied with before customs authorities, the importation or exportation process shall not be granted.
Intellectual property
In addition to ensuring and protecting the importer’s IP (eg, trademarks, patents, industrial designs, utility models, works, etc), there are some additional requirements to be met when importing goods into Mexico.
Those requirements are not directly provided by either the IMPI or the Mexican Copyright Office. Other authorities and agencies, such as the Mexican Tax Agency, which are in charge of the importation activity in our country, establish them.
The importance of the protection and enforcement of IP rights when importing goods into the Mexican territory has increased in recent years. Mexican authorities know that implementing some control measures can lead to the reduction of counterfeit goods in the Mexican market.
In this regard, in July 2014 the 12th edition of the resolution related to the Amendments to the Rules of General Character on Commerce for 2013 was published in the Official Journal.
According to item 3.1.36 of the rules, a person who intends to import goods into Mexican territory shall reveal all the details in connection with the trademark that is used to identify and commercialise those goods.
Those new provisions do not apply to all kinds of goods, but only to those related to clothing, non-alcoholic beverages, alcoholic beverages, cosmetics, etc. It is important to inform customs authorities about whether the relevant mark is registered. If it is the case, the importer will have to declare that it is the trademark owner or authorised user.
Even though these provisions do not require the importer to provide all the evidence and documentation that support its declarations, the information it provides will be useful to check against customs’ official trademark registry.
The Mexican customs authorities implemented this registry in order to identify and detect counterfeit goods. If a legitimate source of the goods is not confirmed, authorities contact the trademark owner’s legal representatives in order to initiate the corresponding actions.
For that reason, the information that has to be provided according to the rules, together with the provisions that govern the customs trademark registry, make it possible to review and identify possibly counterfeit goods when they enter Mexico. The more information that can be provided, the more opportunities our authorities have in order to block the commercialisation and entrance of illegal goods into the Mexican market.
As a result, as we explained earlier, several issues must be taken into consideration when trying to import goods to Mexico. Having a clear and precise knowledge of the applicable provisions and requirements is bound to determine whether an import will be successful and its chances of conquering the Mexican market.
Jonathan Rangel is a patent and trademark litigation manager at Dumont Bergman Bider & Co. His practice focuses mainly on patent, trademark and copyright litigation, IP contracts, well-known and famous trademarks, domain names disputes, and regulatory matters. He can be contacted at: jrangel@dumont.com.mx
Jorge Gómez no longer works at Dumont Bergman Bider & Co.
NOMs, COFEPRIS, PROFECO, imports, IMPI,
