Front-end labeling in Costa Rica: what is the current legal and commercial debate?

Opinion: The restriction of front labeling of imported food products by the Ministry of Health. Analysis from the perspective of public law and international trade.

The front labeling of food products (warning signs) is a topic of great debate throughout Latin America, and Costa Rica is no exception.

On August 2, the Ministry of Health (hereinafter "the Ministry") issued a press release regarding the circular "MS-DPRIS-UR-588-2023" of June 22, 2023, issued by the Directorate of Regulation of Products of Health Interest, in which importers or distributors are ordered to cover the warning stamps placed according to the regulations of the country of origin of each food.

According to the Pan American Health Organization, front-of-pack labeling is a public health tool to address the excessive consumption of nutrients such as sugars, fats and sodium, which cause various non-communicable diseases in the population, whereby, through a regulatory framework, it is mandatory to add warning signs on the front labeling of food products, whose nutrients meet certain parameters that are considered harmful to health.

According to the Food and Agriculture Organization of the United Nations (FAO), several countries in Latin America have already implemented front labeling systems for years. On this point, it should be clarified that there is no single form of front labeling. For example, Chile, Peru, Colombia, Argentina, Mexico and Uruguay have adopted the "warning signs" system, whereby signs in the form of an octagon are added, indicating "High in..." and the nutrient being warned about.

On the other hand, countries such as Ecuador and Bolivia adopted a "traffic light" type system in which, by means of colors, the low, medium or high presence of a nutrient is warned. Other systems used, mainly in Europe, are the "Nutriscore", which establishes a classification by colors and letters to qualify how healthy a food is, and the "approval signs", by means of which a certifying agency approves a food as "healthy".

Now, having understood the above, it is striking why a tool used in other countries to protect the health of consumers is restricted by the Costa Rican Ministry of Health, the highest governing body in public health in our country. In the official notice and in the press release issued by the Ministry, it is indicated that the products that enter the country with front labeling, this corresponds to the regulations approved in the countries of origin and not in the Costa Rican or Central American regulations; however, according to the Ministry, in our legal system, there are no parameters to determine when a nutrient in a food is high or excessive.

What the Ministry of Health indicated is correct, the regulations applicable to the labeling of food products do not contemplate front labeling schemes or qualification of the amount present of a nutrient in a given food. However, is such justification sufficient to motivate the decision to order to cover the warnings on imported products or, on the contrary, could it be maintained based on the current regulations?

The labeling of food products, both domestically manufactured and imported, is regulated by the Central American Technical Regulations: "General Labeling of Prepackaged Foods (Prepackaged)" and, as regards nutritional information, in the "Nutritional Labeling of Prepackaged Food Products for Human Consumption for the population over 3 years of age". Article 8.1 of the former, states:

"8.1.    Optional labeling. Any information or graphic representation may be presented on the label, as well as written, printed or graphic matter, provided that it is not in contradiction with the mandatory requirements of this technical regulation, including those related to the declaration of properties and deception, established in Section 4 General Principles".

Therefore, as long as the information that the trader decides to include voluntarily is not "(...) false, misleading or deceptive, or likely to create in any way an erroneous impression regarding its nature in any respect (...)" the manufacturer may indicate it on the label. In the case at hand, the front labeling of food products based on the regulations of their countries of origin, not being mandatory schemes in Costa Rica, become for the purposes of our country, as elements of "optional labeling", so the analysis corresponds to whether or not they comply with the elements indicated for this type of information on the label.

Although the parameters to define when a nutrient is high or excessive are not regulated in Costa Rica, the fact is that in the country of origin it was defined and it was from which the warning was indicated on the label (in some cases based on parameters defined by international Health Authorities), therefore, if an imported product enters the country with the warning on its label, the consumer would have additional information to make his consumption decision. Likewise, if in a product of national origin, the manufacturer voluntarily decides to inform the consumer that its product is high, for example, in sodium, would such information be wrong or misleading, and how is the consumer affected by giving more information about the food by the manufacturer itself?

Now, on the contrary, importers and distributors will have to incur additional costs to cover such information and the consumer will be deprived of information that would be added voluntarily, which is not necessarily false or misleading, but covered by the regulations of the country of origin of the product.

The measure must also be analyzed from the perspective of international trade, from which other questions arise: Should the Costa Rican State have notified the measure to the World Trade Organization as a non-tariff trade barrier, in the opinion of the undersigned, the answer is yes. The Agreement on Technical Barriers to Trade establishes that WTO member countries should not create unnecessary barriers to trade and, in addition, should notify other member countries of measures that create barriers to trade between countries.

In this line, it is appropriate to comment on a recent case in Peru, in which a measure taken by the Peruvian Ministry of Health prohibiting compliance with front labeling of imported products by means of "stickers" was considered a non-tariff trade barrier lacking reasonableness, without an analysis of impact, necessity or proportionality, which culminated in its annulment by the Specialized Chamber for the Defense of Competition (SDC) of INDECOPI.

On the other hand, based on the communication of the Ministry of Health, the draft Law 23861, "Law of Front Labeling with Nutritional Warnings for Food Products and Beverages with Non-Alcoholic Content" was presented to the legislative stream, which is a new attempt to establish a front labeling system in Costa Rica, however, a proposal of this nature, should also be evaluated in view of the Central American regulations applicable to the labeling of food products.

In conclusion, front-of-pack food labeling, as a public health tool, is a topic of broad debate and will require not only the presentation of a bill to the legislative stream, but also an approach to consumers, the food industry and in coordination with international organizations of which we are members, to ensure its proper implementation.

In Facio y Cañas we have experts to evaluate doubts that may arise in relation to the front labeling of food.

Karla Solís
Senior Associate, Facio & Cañas
ksolis@fayca.com

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