In recent years, Mexico has made important legal advances in relation to advertising. The main pieces of legislation that may apply to advertising and marketing include:

• the Federal Consumer Protection Law (FCPL);
• the General Health Law;
• the Industrial Property and Copyrights Law;
• the Civil Code;
• the Criminal Code;
• the Mexican Data Protection Act;
• the Mexican Norm for e-Commerce (NMX-COE-001-SCFI-2018);
• the Rules for advertising derived from the Health Act; and
• the Consumer Protection Agency Advertising Guide for Influencers.

With the recent legislative changes, Mexican jurisdiction has added authorities to monitor advertising and marketing practices. Here is a list of the regulators that are responsible for dealing with cases related to advertising and marketing issues in Mexican jurisdictions.

• The Consumer Protection Agency (PROFECO), which is in charge of regulating the B2C scheme and arbitration between consumers and products or services providers. Procedures are of an administrative nature.
• The Mexican Industrial Property Agency (IMPI), which is in charge of industrial property filing and intellectual property litigation from an economic/industrial perspective. Procedures are of an administrative nature.
• The Mexican FDA (COFEPRIS), which in charge of regulating and protecting the population from health risks. All products that are related to sanitary and health fields are a matter of interest for this entity to ensure the health and safety of the population. Procedures are of an administrative nature. 
• The Attorney General’s Office (FGR), which in charge of investigating and prosecuting crimes at federal level. 
• Federal Civil Tribunals, which are in charge of disputes and litigation of a civil and commercial nature. 
• The Federal Institute for Access to Public Information and Data Protection (INAI), which in charge of data protection procedures and complaints. It regulates the relationship between data holders and those that manage such data. Procedures are of an administrative nature.
• The Federal Telecommunications Institute (IFT), which is in charge of regulating and supervising compliance of the provisions set forth in the Federal Telecommunications and Broadcasting Law (LFTR). This authority will monitor and sanction those media owners who do not respect the maximum time established for advertising. Furthermore, the IFT holds powers of surveillance regarding the rights of public audiences.
• The Ministry of the Interior, which is in charge of authorising and supervising the promotion of gambling, contests and raffles in their different modalities.
• The Ministry of Health, which authorises the transmission of advertising related to (i) the practice of medicine and its related activities and (ii) food supplements, biotechnological products, alcoholic beverages, medicines, herbal remedies, medical equipment, cosmetics, pesticides, plant nutrients and toxic or dangerous substances.
• The Advertising Consultive Council, which emanated from the government’s health entity, is responsible for dealing with advertising related to health services; food, food supplements and non-alcoholic beverages; infant formulas; alcoholic beverages and tobacco; health supplies, drugs, herbal remedies, medical equipment, surgical and healing supplies; hygiene products; cleaning products; perfumes, lotions, cosmetics and beauty products; pesticides, plan nutrients and toxic or dangerous substances; and biotechnological goods.

The scope for deceptive advertising is limited, depending on the case. Unfortunately, the Mexican jurisdiction is underdeveloped regarding these types of matters, which are usually considered on a case-by-case basis. For example, if there is a misleading advertising issue, this can be brought before PROFECO; but if it is found that there is unlawful competition in the matter or a third party’s trade mark is being discredited, it can be addressed to the IMPI. In Mexico, these kinds of cases must be analysed and prosecuted before the appropriate authority, as it is believed that they are in the best position to hear the case. Either way, those government entities are empowered to sanction individuals or companies. Shareholders would only be held liable as long as their individual participation in the illegal conduct is proven. 

Third parties who provide services to the advertiser, by general rule, are not liable for deceptive advertising. However, the parties may agree that the service provided is held responsible for the contents of the publicity and, therefore, it could be possible to pursue civil actions to obtain damages for any penalties imposed by the authorities. 

In terms of criminal matters, there is a short list of felonies for which a company can be held responsible.

Mexican legislation considers advertising as any activity that includes the entire process of creation, planning, execution and dissemination of content, by any media channel.

PROFECO requires pre-approvals only in articles with specific characteristics, such as medicines and food supplements, among others. Additionally, in order to avoid any conflict with the authority, the advertiser could submit advertising material of any type of product or service for pre-approval before PROFECO, even if it is not required.

In the Mexican legal system, in order for the image of a person to be used and commercialised, an authorisation from its owner is required in accordance with the Federal Copyright Law (LFDA). It is worth mentioning that this obligation is only applicable when, within the materials that make up the advertisement, the owner of the image can be clearly identified; in other words, when we are talking about a group of people where it is difficult to individualise the members, the authorisation is not necessary.

It is important to mention that, although the LFDA only provides the authorisation for the use of the portrait of a person, which is understood as the physical description of the person, national jurisprudence has extended this concept to characteristic elements of the person such as their voice, way of dressing, gestures or unique forms of expression.

In this sense, this broad concept currently must be considered in the authorisation for the use of an image, and currently, such authorisations fall within the limitations established by the LFDA for advertising contracts, in the sense that they cannot be used for more than three years counted from the first communication to the public of the corresponding campaign. Additionally, the applicable payments must be made.

In Mexico, there is a non-binding self-regulatory association known as CONAR (National Council for Self-Regulation and Advertising Ethics). CONAR’s mission is to exercise advertising self-regulation among its affiliates and procure the legal framework throughout the industry to promote fair competition and defend Mexican consumers by providing accurate and timely advice through responsible advertising. CONAR is often used to inform and advise Mexican authorities on day-to-day cases that are related to advertising matters.

There are two proceedings available for private parties to challenge advertising practices before PROFECO.

• Complaint: any individual may file a complaint denouncing the existence of unlawful advertising practices. This complaint may lead to an investigation and to penalties against the advertiser. 
• Arbitration: in this case, parties seek to conciliate before the authority, with the purpose of reaching an agreement on the matter. Terms of agreement usually include a reimbursement of any prices paid by the consumer, indemnification for damages caused by the unlawful practice or granting of additional goods or services. 

If there is no agreement between the parties, consumers may file a civil action for damages from the advertiser that may have caused the unlawful advertising.

PROFECO published an Advertising Guide for Influencers. Although not legally binding, the Guide sets out a clear path to follow in order to respect the regulation of advertising in digital media in Mexico. For example, this Guide provides that all information or publicity relating to products or services that are shared by influencers in any social media platform must be:

• truthful;
• verifiable; and
• free of text, dialogue, sounds, images, brands, denominations of origin and other descriptions that induce or may induce deception, error or confusion among the public by being misleading or abusive.

The Guide also includes a new requirement for content creators to add #Ad # Partnership or other suitable hashtag to make people aware that what they are seeing is a form of advertising. 

In 2022, the Federal Law for the Protection of the Cultural Heritage of Indigenous and Afro-Mexican Peoples and Communities was published in Mexico. This Law seeks to protect the intangible cultural heritage of native peoples and communities; as such, any use, exploitation and commercialisation, including advertising, of any expression that is part of cultural heritage requires prior authorisation.

Such authorisation must comply with the requirements established by Mexican law, respect the uses and customs of the people and/or community in question and must be reviewed and approved by the Mexican authority on the matter.

This year, Mexico has been involved in multiple election processes; in the next few months the new government will set out their positions on numerous areas, including advertising practices. It is important to remain attentive to see if the government will follow the same strategies as the last administration or if important changes will be made.

According to the FCPL, misleading advertising or abusive information is understood as advertising that contains characteristics or information related to any good, product or service that may or may not be true, or that could mislead or confuse the consumer by the inaccurate, false, exaggerated, partial, artificial or contentious way in which it is presented.

In principle, all advertising claims are subject to regulation. The FCPL states that advertising must be truthful, verifiable and free of text, dialogue, sounds, images, trade marks, denominations of origin or other descriptions that induce or may induce error or confusion, due to their misleading or abusive nature.

Claims that may not be objectively measured could be acceptable and are not subject to substantiation, provided that they do not violate the legal principles mentioned above. 

Implied claims will be analysed on a case-by-case basis to determine if they comply with the principles of the FCPL, and empirical evidence is frequently used as a means for their substantiation.

Empirical evidence is frequently used to substantiate advertising claims and the specific type of substantiation will depend on the nature of the claim. 

For example, if a claim states that a type of liquid soap kills 99% of bacteria, a laboratory study will be an acceptable means to substantiate that claim. If another claim states that eight out of ten individuals prefer hamburgers from restaurant “X”, then a survey which follows scientific criteria will be an acceptable means for substantiating this claim.

A first aspect to consider is determining whether the product or service shown in the advertisement is regulated by a mandatory technical standard or not. If the answer is “yes”, testing must be based on the rules, methods and procedures established in the applicable technical standard. If the answer is “no”, there will be more flexibility in the testing to be conducted, although it will be important that this testing is based on scientific standards.

There is currently no legislation in Mexico that specifically addresses the use of endorsements and testimonials in advertising; however, general advertising standards must be complied with. For example, the FCPL establishes that all information or advertising related to goods, products or services that are disseminated by any means or form must be truthful, verifiable and not misleading or confusing, and therefore any endorsements and testimonials must comply with these characteristics.

Currently in Mexico, there is no legislation that specifically addresses the use of disclosures in advertising; however, general advertising standards must be complied with.

There is no current federal regulation that addresses stereotyping in advertising or inclusion, diversity and equity.

However, there are some local laws which do address this topic, as in some states it is prohibited to disseminate advertising containing harmful prejudices and stereotypes.

For example, local laws in Mexico City prohibit the use of sexist stereotypes in advertising, which are deemed to associate denigrating, exclusionary, submissive, racist or derisive messages with women, or to present women, their bodies or parts thereof, as mere objects.

The purpose of these laws is to avoid the violation of the dignity or rights of individuals.

There is no current regulation regarding green marketing, sustainability claims and “greenwashing”. The government had implemented different programmes in order to encourage companies to apply green marketing measures.

The most transcendental programme implemented by the government is “Plan Verde”, a campaign that contains the strategies and actions to put Mexico on the road to sustainable development. This programme was only implemented by the Mexico City government and it is not applicable in other states of the country.

Both the FCPL and Mexican official standards establish provisions to protect consumers from deceptive activities by suppliers, such as dark patterns.

In Mexico, there are several regulations on advertising to children.

For example, the FCPL, the General Health Law, the Regulations of the General Health Law in Advertising Matters, and other self-regulatory bodies, establish parameters for and restrictions on advertising directed to children. These regulations include issues such as the prohibition of content that could be considered as harmful or misleading and time restrictions on when certain types of advertising could be aired.

In 2023, PROFECO issued the Advertising Guide for Influencers. This serves as a reference tool for influencers and content creators, consumers and the general public, to ensure compliance with the advertising provisions. However, considering it is only a guide, its enforceability is complicated.

The Industrial Property Law stipulates that signs, phrases, images, sentences, advertisements or trade names which are susceptible to deceiving or misleading the public, may not be registered.

Likewise, the Law contemplates that signs that are identical or confusingly similar to geographical areas ‒ whether proper or common nouns ‒ maps, town names or adjectives that indicate the origin of the goods or services and may cause confusion or error as to their origin cannot be registered.

Included in this case are those signs that are accompanied by expressions such as “genre”, “type”, “manner”, “imitation”, “produced in”, “manufactured in” or other similar expressions that create confusion for the consumer or imply unfair competition.

The FCPL allows the public comparison between products or services, as long as that information is not false, misleading or abusive or presented in an inaccurate, false, exaggerated, partial, artificial or contentious way. In the same vein, the Industrial Property Law (LFPPI) excludes from consideration the lawful comparison between products or services from the discrediting of a third party trade mark, as long as it is done for informative purposes. 

In addition, the FCPL gave powers to PROFECO to issue guidelines for comparative advertising, with the purpose of avoiding said comparative advertising from inducing the consumers into error or confusion. To date, PROFECO has only issued one set of guidelines dealing exclusively with the procedures and requirements for the comparison of the price of identical goods or services which are commercialised by different providers. The guidelines were published in 2009.

There are some specific requirements that must be considered with regard to comparative advertising claims in addition to those applicable to general advertising claims. In this sense, the FCPL states that the information or advertising that compares products or services, from the same brand or from different brands, shall not be misleading or abusive as said terms are defined by the law (see 2.1 Deceptive or Misleading Claims).

With regard to the comparison of prices of goods or services, the specific requirements established in PROFECO’s 2009 guidelines must be observed. These requirements include:

• the goods or services must be identical;
• the prices must be supported with a proof of purchase or with a certification issued by a notary public/commercial notary public; and
• the documents mentioned above must include the identity of the provider with whom the comparison is made and its domicile.

Comparative information will be valid for five days from the date of purchase or the date of certification of a notary public/commercial notary public.

The FCPL allows any individual or company to denounce a violation of that Law before PROFECO; for example, if an advertisement violates the principles established in said Law (eg, that all advertising shall be truthful and not misleading), PROFECO will initiate an investigation of the claim and, if it considers that the advertisement violates the law, it may order its suspension and/or impose a fine on the advertiser.

CONAR also has a procedure to settle disputes between its members or between parties that, without being members, submit themselves to CONAR’s procedures regarding advertising claims.

Comparative advertising is not as frequent in Mexico as it is in other countries (eg, the USA). The most common practice in Mexico is price comparison which can be seen directly by the consumers in supermarkets, and which is a useful means for them to purchase goods with a degree of certainty that they are paying a lower price than that available in other establishments.

Although there is no specific regulation related to ambush marketing in Mexico, the FCPL establishes parameters and restrictions to detect and eliminate unlawful practices which ambush marketing could fall into. Therefore, the advertiser must be very careful to avoid questionable practices that could be considered ambush marketing.

In 2023, PROFECO issued an Advertising Guide for Influencers as an instrument to instruct and guide influencers and content creators with respect to compliance with the applicable provisions on advertising in Mexico. However, the guide is only a reference tool for influencers, content creators, consumers and the general public to ensure compliance with the advertising provisions established in the FCPL.

Nevertheless, there are no other regulations that address the use of social media platforms. Therefore, if any of these social media platforms involve activities related to e-commerce or marketplace operations eg, Facebook, there are specific regulations for this activity in particular, mainly for the sellers rather than the users.

In addition, consideration should be given to whether there are other activities on the platform that could imply regulations of another nature, eg, money reward programmes based on the number of views or likes when the performer/user is a minor.

There are no strong precedents that could lead to the conclusion that there is a single position on liability for third-party content. There are different opinions on the level of responsibility that social media and site administrators should have for the content posted on their platforms by third parties (users). Based on good practices adopted, such as removal of the content and “notice and takedown” techniques, immediate reactions from site administrators to remove the advertising content, or to have a policy to suspend users’ accounts that do not comply with the terms and conditions of the site, those social network or advertisers’ administrators may be protected from legal responsibility under a safe harbour model. All of the foregoing only applies if the social network or advertiser did not directly participate in the illegal act.

Considering that the recent Advertising Guide for Influencers created by PROFECO is only a reference tool and not yet an enforceable law, the rules on online disclosures and disclosures in social media would mostly depend on the nature of the product or service, rather than the channel of disclosure.

Regardless of the Advertising Guide for Influencers, there are no regulations in force that specifically address the use of social media platforms. However, if any of the social media platforms involve activities related to e-commerce or marketplace operations, eg, Facebook, there are specific regulations for this activity in particular, mainly for the sellers rather than the users.

In addition, consideration should be given to whether there are other activities on the platform that could imply regulations of other nature, eg, money reward programmes based on the number of views or likes when the performer/user is a minor.

There are no special rules regarding “native advertising”, other than complying with the regulations for general publicity.

The Advertising Guide for Influencers issued by PROFECO is the only set of guidelines in Mexico that focusses specifically on the use of influencer campaigns.

Due to the lack of legislation regarding the day-to-day activities of influencers in this jurisdiction, everything related to the activity of the same is set out in a private contract which is held by the influencer, the brands and, sometimes, the agencies.

There is no current regulation addressing consumer reviews or banning employees or companies from posting reviews online of their own products. However, these activities are considered as improper practices and should be discouraged, as they could lead to commercial consequences or a bad reputation.

There is no current regulation addressing consumer reviews; therefore, the advertiser has no legal duty to monitor the reviews and it would be complicated to hold the advertiser responsible for such activity.

The use of any personal data must be handled with the verifiable consent of the data owner; to obtain such consent, it is necessary to inform the owner of the type of data processing through a privacy notice which must be available to the data owner prior to the processing. In the event of having obtained the personal/contact data indirectly, the privacy notice must be available to the data owner in the data holder’s first contact with them, ie, in the very first marketing email.

The privacy notice used in the marketing email is a short version that it must contain at least the controller’s name and address, and the method and means to access and consult the full version of the privacy notice. If after receiving and/or reviewing this information, the data holder does not oppose the processing of their personal data for marketing purposes, then the company may continue with this emailing. However, those who do not wish to receive this type of communication should use opt-out mechanisms, which should be accessible in every email sent.

For violations of privacy or data security law, the law provides a list of actions that are grounds for sanctions. Fines range from 100 to 320,000 times the current minimum daily wage (approximately USD5.38). In the case of recurring infringements, an additional fine may be imposed and may be doubled if the case involves sensitive data. Sanctions may be imposed without prejudice to any civil or criminal liability that could arise.

As in many of the existing privacy legal frameworks, opposition is one of the rights considered in privacy and data protection regulation. This right is mainly focused on non-core purposes and, as marketing is always considered as secondary purpose, the data owner can exercise this right at any moment. Data controllers must act accordingly in order to comply with the local regulation, otherwise, sanctions may be imposed.

Telemarketing is aligned with privacy regulations if:

• a short version of the privacy notice is available at the beginning of the call;
• there is consent from the data owner; and
• an opt-out mechanism or an unsubscribe option is enabled.

As mentioned in 6.2 Telemarketing, the use of personal data is allowed for secondary purposes (in this case through text messaging) if the data holder grants their consent after having been informed about personal data processing and does not oppose the use of data for the informed purposes. Unsubscribe lists and opt-out mechanisms must be enabled too.

Non-compliance with previous requirements could lead to sanctions considered by the Mexican privacy legal framework.

Although most targeted/interest-based advertising currently depends on the use of AI, cookies, beacons and similar technologies, the local legal framework only considers informing data owners of the use of these types of technologies (if any) and the way to disable them as a statutory requirement. As with the other elements in data processing, this information must be part of the privacy notice.

Fortunately, awareness in privacy and data protection is rising and the use of tools/mechanisms for easy customisation of these types of technologies is increasing.

Unfortunately, the local legal framework does not consider special rules/requirements for processing children’s personal data. Thus, the criteria for processing data belonging to this community are the same as those applied to adults’ data processing.

Notwithstanding the above, Mexican Privacy Law considers the population of children as a “special” sector, and it establishes that data processing must be carried out without the use of misleading or fraudulent means. Thus, any bad use of children’s data shall be prosecuted and punished, and the sanctions that may be imposed by PROFECO and INAI may be increased.

It is highly recommended that consent to the privacy notice is provided by using a checkbox as well as the implementation of plugins for age verification.

The regulations on data privacy and consumer protection provide that the processing of personal data for advertising purposes may only be carried out with the prior express consent of the owner of the personal data. Additionally, advertising companies are usually in charge of the processing of personal data, so it is necessary for the existence of an agreement between the advertising agency and whoever hires the service to determine who will be responsible for this data as well as the processing of the same, according to the consent of the owner of the personal data.

In the event that sweepstakes or chance-based contests are carried out within Mexican territory (eg, if the draw will take place in Mexico), there will be a need to obtain a permit from the Ministry of the Interior.

Consumers may be required or requested to make a purchase in order to participate, but, in these types of promotions, the organiser must file a notice before PROFECO at least 72 hours prior to the start of the promotion.

In accordance with the applicable legal framework, games of chance are based on random outcomes and the result of the game is totally outside of the player’s will.

A game of skill implies that its result is not based on random processes and that the player’s will and skills will determine the outcome of the game.

The organiser of a game of chance to be carried out in Mexico (eg, if the draw will take place in Mexico) must obtain a prior permit from the Ministry of the Interior. This procedure may take from four to six weeks to be concluded. The authority will analyse, on a case-by-case basis, the mechanics of the game to ensure its fairness. The organiser will be asked to hire a bond to guarantee the payment of the prizes.

If the game of chance includes a purchase requirement, the organiser must additionally file a notice before PROFECO at least 72 hours prior to the start of the game of chance.

Contests of skill do not require a permit from the Ministry of the Interior. Nevertheless, if these contests include a purchase requirement, the organiser must file a notice before PROFECO at least 72 hours prior to the start of the contest.

In the case of offers, the FCPL establishes the following specific rules.

• The advertising of offers must include the conditions, as well as the term or available quantity of the offered goods/services.
• The available quantity of the offered goods/services will be subject to verification, if and when required by PROFECO.
• If there is no information on the offer’s term or available goods/services, it will be presumed that they are indefinite, up until the moment that the offer is publicly finalised through the same means of communication in which it was advertised.
• Each and every consumer that complies with the applicable requirements for the offer will have the right to acquire the applicable goods/services during the term of the offer or as long as there is availability of the relevant goods/services.
• There is a prohibition on the carrying out of offers in which the advertised monetary value of the good/service is clearly superior to the one normally available in the market.

In the event that the offering party does not comply with its offer, the consumer may opt to:

• request compliance;
• accept another equivalent good/service; or
• terminate the contract.

In all three cases, the consumer will have the right to receive a monetary payment representing the difference between the price of the good/service in the offer and its normal price. In addition, the consumer will have the right to a monetary compensation equivalent to 20% of the price paid by the former.

The FCPL and its Regulations establish that automatic renewal/continuous service offers under which a marketer can continue to ship and bill for products and services on a recurring basis until the consumer cancels may be carried out, provided that the consumer has previously authorised the charges or that said charges derive from a related contract. If these requirements are not met, the above-mentioned offers would violate the FCPL and its Regulations.

There are no special rules regarding the use of AI, other than complying with the regulations for general advertising. However, considering the continuous growth of this field, Mexican legislators have been working on regulatory projects to address this issue. New regulatory frameworks addressing these issues are expected in the next few months.

In Mexico, there are no regulations addressing the use of AI, other than complying with the regulations for general advertising.

Mexico has no special rules regarding the use of chatbots or any other similar programmes, other than complying with the regulations for general advertising.

There are no specific rules or regulations that apply to advertising of cryptocurrency or NFTs, depending on the broadcasting channel, but only general provisions. For its part, Mexico’s e-commerce policies are still in development. As of today, e-commerce is mainly regulated by three norms and a tool enabled as “good practice”:

• the FCPL;
• the Code of Commerce; and
• the Mexican Norm for e-Commerce NMX-COE-001-SCFI-2018 (non-binding).

The Ethics Code and digital seal implemented by PROFECO is voluntary and considered as a good practice. In addition, cryptocurrency is not recognised as legal tender in Mexico, nor recommended to consumers/users. NFTs are slowly gaining recognition with no specific regulations scheduled to be issued in the near future, but, as there are concerns about the basic offer and civil norms, copyrights are being called for. Unfortunately, the Mexican legal system is not characterised as being avant-garde in its approach to information and communication technologies (ICT).

There are no laws or regulations relating to advertising within the metaverse, and no cases have been ruled on either, be it related to advertising or to any other subject. First of all, a matter of jurisdiction is urgently needed to be established and to what extent the Mexican authorities would be entitled to act in a virtual world that does not know about physical borders. In light of this issue, Mexican authorities may only find a way to intervene when the advertiser is a Mexican company, the server that holds the virtual space is located in Mexico or if the affected consumer is Mexican or physically located in Mexican territory, despite its avatar.

Advertising-related food supplements, alcoholic beverages, medicines, herbal remedies, medical equipment and toxic or dangerous substances must have a permit from Ministry of Health.

Depending on the specific case, some products must contain a message of social responsibility regarding the consumption of such products in their advertising.

While there is no specific regulation related to product placement, the Intellectual Property Law would generally be applicable.

Previously, unauthorised product placement could be considered as trade mark use, making it vulnerable to infringement actions. However, with the new amendment to the IP Law, a definition of trade mark use was added for cases of infringement, therefore, product placement no longer falls under this assumption.

In any case, if the image of the trade mark or its owners is affected, civil actions may be initiated.

Products that are prohibited from being consumed are also prohibited from being advertised in Mexico, eg, vapes, cannabis (with the exception of personal use but not advertising), cryptocurrency operations. In addition, the advertisement of financial services must have specific authorisations from the Central Bank (Banxico) and the National Banking and Securities Commission (CNBV), depending on the permits granted, to operate specific financial/monetary activities. Moreover, all advertising related to special events must take care not to infringe sponsorships spaces, and/or perform activities that may be considered ambush marketing. Private entities, such as FIFA, annually issue their own guidelines to avoid advertising misconduct during their football events, and with the World Cup taking place in Mexico, the USA and Canada in the next few years, we can expect a lot of activity regarding the prevention of such practices being carried out. Cases of this nature may be addressed to COFECE.