In the absence of a new extension allowing the use of stickers to date, a number of questions arise, which are addressed below:
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How long can stickers be used to attach the octagons on imported foods?
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Until 31 December 2022. As of 1 January 2023, all imported foods must have the octagons printed on the labeling from their country of origin.
Only some importers and/or marketers who have a precautionary measure granted by INDECOPI will be able to import and market food with stickers, as we will explain later.
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What can be done to continue using the stickers?
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Any affected importer and marketer can report this to the Commission on Dumping, Subsidies and Non-Tariff Trade Barriers of INDECOPI so that they may study if this prohibition on the use of stickers is an illegal and/or unreasonable non-tariff trade barrier.
In addition, the complainant may request a precautionary measure that allows them to suspend the effects of the ban, which may be in force until the issuance of the final resolution (first or second instance) or, if applicable, if the ban is revoked by the Specialized Chamber for the Defense of Competition.
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How long can INDECOPI take to resolve the request for precautionary measure for this?
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Within a period of no more than 30 business days
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What does it mean to get an injunction?
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The complainant may continue to use stickers for the octagonal warnings on imported foods.
The Ministry of Health (denounced authority) may not prohibit the complainant to use stickers for the duration of the complaint procedure.
We consider that the precautionary measure should guarantee, in a broad and integral sense, that all the activities of the complainant in relation to imported products that have the obligation to consign octagonal warnings are in accordance with the regulatory framework of healthy eating.
In that sense, the precautionary measure should guarantee that the benefited complainant can do the following:
- Import and market imported foods using stickers to attach the octagonal warnings
- Commercialize imported foods with stickers that have been imported by third-party companies that also have precautionary measure in their favor
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Can the complainant who has a favorable precautionary measure sell products from an importer who does not have a precautionary measure?
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This question has been transferred to INDECOPI as a consultation but has not yet been answered. Due to the lack of clarity on this aspect, it could be contingent.
INDECOPI could interpret that the importer that does not have a precautionary measure cannot market through another importer that does have such a measure. If this assumption is configured, INDECOPI could initiate control and sanction actions.
Our position is that there are arguments to defend companies against this type of observations and inspections by INDECOPI, as it is understood that a precautionary measure should allow its beneficiary to carry out all activities related to the marketing of imported foods.
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What are the penalties imposed for non-compliance with the healthy eating regulations?
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INDECOPI may apply corrective measures (e.g., the cessation of the conduct, the confiscation and/or destruction of the infringing products, the rectification of incorrect information, among others) as well as the following penalties:
- Minor infractions that have not produced an impact on the market: Warning
- Minor violations: Fines of up to 50 tax units1 (PEN 247,500)
- Serious violations: Fines of up to 250 tax units (PEN 1,237,500)
- Very serious violations: Fines of up to 700 tax units (PEN 3,465,000)
To determine the seriousness of the infringement, INDECOPI will evaluate the benefit obtained, the size of the affected market, the scope and duration of the act, among others.
Bear in mind that in all cases, the penalty must not exceed 10% of the offender's gross economic income, in all its economic activities, corresponding to the financial year immediately preceding that of the issuance of the first instance resolution.
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Are there any other unresolved questions regarding this situation?
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Yes, among others, the following:
- There is no clarity as to what happens to imported foods with stickers that were nationalized before 31 December 2022.
- There is also no clarity with respect to imported foods that were shipped before that date and arrived in Peru as of 1 January 2023.
- If INDECOPI assumes a strict position, in the two previous cases, such foods could not be marketed with stickers.
- There is also no specific stock depletion procedure, although the general regime could be applied.
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Estudio Echecopar has been representing several companies and unions against this regime that is clearly contrary to trade and national and international standards on the matter.
If you require advice on the subject, you can contact us.
Spanish version.
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1 The tax unit for 2023 is PEN 4,950.
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