The commercial and legal environment on product safety in vehicles, auto parts and other products has substantially changed in Mexico in 2018. Manufacturers carrying out business activities in Mexico should now be implementing increased efforts to comply with and properly react to new legislation, policies, recall procedures and safety standards that are now applicable in Mexico.
Under New Legislation, Recall Procedures are now Mandatory in Mexico.
Pursuant to modifications to the Federal Law of Protection to the Consumer enacted earlier this year, the Federal Consumer Protection Agency (PROFECO) can now remove or call for repairing defective and insecure products, open investigations on product safety concerns, and impose relevant sanctions to the manufacturing companies in Mexico not complying with product safety standards or that otherwise could harm the life, safety or health of consumers. Prior to these legal amendments, the recall procedures were wholly voluntary, although as a matter of best practice, most manufacturers followed their recall procedures employed in other international markets. Also, before the recent amendments, the calls carried out by PROFECO after the vehicle and other manufacturing companies commenced recall procedures were only for disclosure purposes to the end customers in Mexico. PROFECO did not in practice impose sanctions to enforce the consumer protection laws in the event the recall procedure was not carried out in a proper fashion by the manufacturing or vehicle company in question. Now, such sanctions are expected to be regularly imposed by PROFECO if product safety standards or recall procedures are not met under the terms set forth in Mexican laws.
Also, aside from the legal considerations mentioned above, from a corporate reputation and brand management perspective, social organizations with increasing relevance in Mexico (such as Poder del Consumidor) are pushing for even better safety standards on manufactured products sold in the Mexican market, to force them to conform with standards applicable in other jurisdictions like in the US and Europe, for instance. This, as some of the safety standards set forth in Mexican Official Norms to date, for instance in the vehicle industry, are still steps behind from other internationally acknowledged safety standards.
Class actions are also an important risk to consider in Mexico due to recent legal amendments.
Class actions were implemented in Mexico a few years ago and are now becoming more relevant in the legal and commercial environment in Mexico. Product safety issues could also result in cumbersome and costly class actions which could substantially increase the economic losses in a product safety case in Mexico.
What companies and legal departments should start doing to prevent product safety and class action risks in Mexico?
Due to the modifications to the Law on product safety, recalls and class actions in Mexico, companies doing business in Mexico and legal departments in the manufacturing and automotive sector should immediately implement or adjust their preventive policies and procedures compliant with Mexican laws, to ensure how to better react quickly in case of a product safety or class action crisis in Mexico, in the implementation of proper recall procedures compliant with Mexican law and in order to bolster their legal defenses in case of a dispute or class action.
It is also advisable for them to review quality standards on the products that they produce or import to commercialize in Mexico, including the review of compliance of Mexican standard norms (NOMs) and other internationally accepted standards in the [vehicle and safety] environment.
Automotive and manufacturing businesses active in Mexico should also make sure to set up better hold harmless, indemnity and indemnifications clauses with suppliers to mitigate, as much as possible, the company´s potential exposure on product safety and class action issues that may result from defective materials supplied by their vendors.
Thus, from a legal and business reputation perspective, complying with proper product safety issues is a quite relevant topic to focus now in Mexico, where immediate corporate and legal measures are currently recommended including a review by all manufacturers in Mexico of their compliance programs, to make sure they are up to date with the new standards in Mexico.
How Foley is prepared to these scenarios?
The changes have encouraged our Mexico City office, in conjunction with our automotive practice group, to find innovative solutions to support clients in order to facilitate the compliance of the new product safety requirements of vehicles and parts to save incurring substantial loses in Mexico.
Our firm is prepared to provide a full range of legal services going from a preventive, reactive and even from a legal defense perspective in case of a product safety counseling, a new policy implementation, or a legal representation in a recall procedure or a class action in Mexico. We also can render through our Mexico city team value added services in an interdisciplinary fashion, given the technical specialty and interaction with other professional areas in crisis such as recalls or class actions, including corporate communication and public relationships, security, social responsibility, logistics, handling and disposition of hazardous or unsafe materials. For this, can also bring to our team the expertise and reputation of a former Attorney General of the Consumer Protection Agency (PROFECO) in Mexico.
About Foley’s Mexico City Office
Foley’s Latin American attorneys offer highly experienced and strategic counsel to U.S. and international clients, in a range of multidisciplinary services and industries. We help companies doing business in Mexico and across the Americas. Our Mexico City-based attorneys know the regulatory landscape and the laws governing business in that jurisdiction and can help clients navigate them to help companies maintain profitability and avoid agency, system and legal hurdles.
We can assist with matters involving corporate deals, structures and disputes, supply chain including import and export, international trade including NAFTA and other free trade agreements, and tax – just to name a few – across the agroindustry, automotive, finance, energy, food & beverage, insurance, manufacturing, and real estate sectors. Our combination of legal knowledge and savvy, strong history, cultural and lingual fluency, and political sophistication allows us to serve your diverse needs in the increasingly important Latin American markets.