February 26, 2020

Several organizations, including USDEC, have provided feedback to the General Directorate of Norms' (DGN) regulatory impact assessment (AIR) to the draft cheese conformity assessment (CAP) procedure to the new cheese technical regulation, NOM-223-SCFI/SAGARPA-2018 (NOM-223), or on the draft CAP itself (See Hot Topic - Draft Mexican Cheese Conformity Assessment Published for Comment). Organizations that submitted comments include Mexico's Federal Economic Competition Commission (COFECE) as well as the Undersecretariat of Foreign Trade. All these opinions are issued to the National Commission of Regulatory Improvement (CONAMER) and posted on the CONAMER website. (Note: The CONAMER website is currently down but will be back up ASAP.)

COFECE

COFECE is an autonomous constitutional body whose purpose is to guarantee free and open economic competition within the Mexican market. One of its most important functions is to issue opinions on preliminary draft rules when they may negatively impact competition.

In its evaluation of the CAP, COFECE recognized at the outset that its objective is not related to food safety matters. In addition, the body noted that the draft establishes testing requirements for each lot of imported products while domestic products must test twice a year. The agency suggested that in order to avoid unnecessary costs, the procedure should allow imports to also be tested twice a year to show compliance with the cheese specifications in the NOM.

COFECE also challenged the requirement for the fatty acid test, given that the NOM does not specify criteria to judge test results, which could lead to uncertainty with respect to compliance. Finally, COFECE underlines the relevance of providing enough flexibility in the implementation of the test report requirement, for instance, by recognizing test results that are already utilized to sell products in countries with specifications at least equal to those of Mexico.

Under Secretariat of Foreign Trade

The General Directorate of International Trade Disciplines of the Under Secretariat of Foreign Trade (the Mexican USTR equivalent) provided comments to CONAMER indicating that the draft CAP meets the requirements to be considered as a conformity assessment procedure under the WTO's Agreement on Technical Barriers to Trade, and therefore it is subject to the disciplines of the Agreement and should be notified to the WTO for public comment. This agency also noted the discrepancy in testing requirements between national products (twice a year) and international products (each lot) and indicated that these requirements are contrary to certain provisions of the WTO's TBT Agreement.

USDEC

USDEC also filed comments to CONAMER with concerns related to the DGN's AIR, which included those that both COFECE and the Under Secretariat of Foreign Trade identified in their analyses. USDEC also mentioned that the proposed CAP is burdensome and beyond what is required for export to other countries. In addition, USDEC challenged many of the conclusions that DGN utilized to justify the need for this CAP.

USDEC will also be filing comments on the specific content of the proposed regulation, once is published by Mexico por public comments and notified to the Members of the WTO Committee on Technical Barriers to Trade. We continue to welcome member feedback with your concerns about the proposal. Please contact Oscar Ferrara at oferrara@usdec.org or Sandra Benson at sbenson@usdec.org with any comments or questions.