1. CONTEXT
Advertising is one of the most relevant consumer issues at the international level. The power of advertising derives from its ability to affect and shape consumer behavior over a given period of time and convince them to purchase goods and services to the point of modifying their consumption habits. As a result of the foregoing, the legislator decided to regulate this matter in the Federal Consumer Protection Law (the “LFPC”), providing a particular treatment that foresees significant administrative sanctions for those who fail to comply with the provisions of the LFPC.
2. SOME RELEVANT ASPECTS OF ITS REGULATION
To begin with, something important to highlight is that in advertising matters there is joint and several administrative liability of three subjects, being these: (i) the supplier: who is the one who benefits from the advertising; (ii) the advertiser or agent: who is in charge of creating the message and, sometimes, publishing it; and (iii) the media: who is in charge of disseminating the message to the public (there may or may not be one). It should also be noted that liability for advertising may be challenged by the Federal Consumer Protection Agency (“PROFECO”), consumers or even the supplier’s competitors.
The backbone of advertising in our legislation can be found in Article 32 of the LFPC, which provides that: “any information or publicity or advertising relating to goods, products or services that are disseminated by any means or form, must be truthful, verifiable, clear and free of texts, dialogues, sounds, images, trademarks, appellations of origin and other descriptions that induce or may induce error or confusion by misleading or abusive…”. From this follows the principles of advertising, which imply that advertising must at all times be truthful, verifiable and accurate.
Truthfulness assumes that what is advertised is true. It is verifiable when the qualities of the advertised good or service can be confirmed with the physical good or service actually provided, i.e., the ability to prove that what I advertise is true. Finally, accuracy or clarity means that the information advertised does not mislead or is not likely to mislead the consumer. All advertising must comply with the above principles to be legal.
In case there is a suspicion that the advertising does not comply with the aforementioned principles, PROFECO may impose the following precautionary measures: (i) suspension of the advertisement until its veracity is proven; and (ii) require that a legend be inserted in the advertisement indicating the truthfulness of the advertisement has not been purchased by PROFECO. In case it is proven that the advertisement is indeed illegal, PROFECO may order the correction of the advertisement, the cancellation of the same, and if applicable, the corresponding fines. In this regard, it is important to point out that in matters of misleading advertising the fines are very juicy since the LFPC considers it as a particularly serious case.
Finally, regarding the burden of proof in advertising, the first chamber of the Supreme Court of Justice of the Nation resolved in a thesis dated December 4, 2015, determined that if the type of statement in advertising is empirical, then the burden of proof is on the supplier; and in the event that the statement is evaluative, the burden of proof is on the consumer.
3. CONCLUSION
Considering the above, it is evident to note that advertising is one of the matters most monitored by PROFECO due to the power it can have over consumer behavior. The regulations set forth in the LFPC will always seek to ensure that advertising is truthful, verifiable and accurate, providing for significant penalties in the event of non-compliance with these principles. It is important to consider these principles prior to any advertising, since if it is not reviewed, there is a risk of sanction by the authority. By virtue of the foregoing, we recommend always taking into consideration the existing regulations on advertising, since being such a highly observed matter, it is advisable to fully comply with all the legal provisions that regulate it.
At Acedo Santamarina we have a solid area of expertise in consumer protection, and we are ready to advise you on this matter.
