Table. TFBCs and Trade Associations’ Threats of Legal Challenges to FOPNL in Mexico: Potential Responses and Supporting Evidence .

International Agreement	TFBCs and Trade Associations’ Threats of Legal Challenges	Analysis and Potential Response	Supporting Evidence
WTO TBT	FOPNL unnecessarily restricts trade. - Article 2.2 (technical regulations should not create unnecessary obstacles to trade). - Article 2.4 (where relevant international standards exist Members should use them as a basis for their national technical regulations except when such international standards would not effectively fulfill the legitimate objectives pursued).^4,5	While TBT Agreement cautions against any regulation that unnecessarily restrict trade, it recognizes that each WTO Member has the basic right to implement measures to achieve legitimate policy objectives, such as the protection of human health and safety.⁷	- Similar trade concerns were raised in Chile, Peru and Indonesia in 2013, Ecuador in 2014, and Uruguay in 2019,⁸ but these countries have moved forward with FOPNL. - WTO member states have successfully argued for FOPNL in WTO TBT Committee discussions as ‘providing consumers with sufficient information about the food which they consume and reducing non-communicable diseases;’ ‘provide consumers with information so as to make appropriate dietary choices and reduce the risk of diet-related NCDs;’ and ‘empower consumers to make an informed choice in order to foster effective competition and consumer welfare.’⁸
WTO TRIPS	FOPNL would restrict its trademarks under the WTO TRIPS where the labeling regulation also provides restriction to the use of persuasive elements, such as cartoon characters, on packaged foods required to carry FOPNL warnings.		Similar trade law concerns were raised in Chile, but the country has moved forward with FOPNL.⁸
Codex	FOPNL is inconsistent with international standards of the Codex Alimentarius Commission (Codex Guidelines) and countries should wait until Codex develops FOPNL guidelines.	- There are no existing Codex guidelines specific to FOPNL-as provisions in Codex on supplementary nutrition information is what the FOPNL guideline work has grown out of, thus it is not possible to be inconsistent with these guidelines. - Codex establishes “minimum standards”/a floor and countries may choose to exceed these standards to protect the health of their populations from health risks. - If Codex guidelines are developed in the future, it is not mandatory to comply with them under trade law.	Similar challenges referring to Codex were made in Chile and Uruguay but both countries have moved forward with FOPNL.
NAFTA	Chapter 11 allows foreign investors (eg, corporations) to directly challenge FOPNL under Investor-State Dispute Settlement through the International Centre for Settlement of Investment Disputes.⁹ - FOPNL is an infringement on trademarks due to the removal of graphics or logos on packaging.	Analogous arguments under similar provisions in other investment agreements were made against tobacco packaging and labeling and both domestic and legal courts have ruled against this argument as trademark law protects the owner from infringement (others using their trademark), but does not give them a right to use the trademark in any context. - FOPNL can also be justified on a health basis, which may be appropriate to limit the use of trademarks.	In 2010 and 2011, Philip Morris International sued Uruguay and Australia respectively to challenge tobacco packaging and labeling laws but lost both in domestic and international courts where they had to pay millions of dollars in legal fees.^10,11
USMCA	- Article 11.4 allows for wider, enforceable language on the recognition of national public or private standardization bodies as relevant international standards. This could extend to accepting voluntary standards (eg, corporate standards that have been developed in the US) as equivalent to Codex standards for the purpose of developing national regulations.¹²	Current Codex Guideline work on FOPNL proposes general guidance, rather than a specific FOPNL to be used. Codex processes are slow and the outcome of this work and its eventual legal status is still unclear. -Article 9.4: Sanitary or phytosanitary measures which conform to relevant international standards, guidelines, and recommendations are deemed to be necessary to protect human, animal, or plant life or health, and presumed to be consistent with the relevant provisions of this Chapter, Chapter 2 (National Treatment and Market Access for Goods), which relate to the use of sanitary or phytosanitary measures, and Article XX(b) of the GATT 1994 as incorporated into Article 32.1 (General Exceptions). -Article 9.6: Each Party has the right to adopt or maintain the sanitary and phytosanitary measures necessary for the protection of human, animal or plant life or health.	The USMCA came into force in July 2020 but Codex Guideline work on FOPNL is still pending.

Abbreviations: NAFTA, North American Free Trade Agreement; TBT, Technical Barriers to Trade; TRIPS, Trade-Related Aspects of Intellectual Property Rights; USMCA, United States-Mexico-Canada Agreement; WTO, World Trade Organization; FOPNL, front-of-pack nutrition labeling; TFBCs, transnational food and beverage companies.