Mexico City, April, 2021
On February 26, the Federal Consumer Protection Office (“Profeco”) published in the Official Gazette of the Federation, the Decree stating the guidelines for the application, use and registration of the Profeco Digital Badge (“Guidelines”) and the Decree stating the Code of Ethics in Electronic Commerce (“Code of Ethics”). In order to provide consumers with access to goods and services in better market conditions and in accordance with the Federal Consumer Protection Law (“Law”) and the Mexican Standard NMX-COE-001-SCFI-2018 (Electronic Commerce-Provisions whereas whomever offers, commercializes or sells goods, products or services will be subject) (“Standard”), applicable to those suppliers that carry out transactions through the use of electronic, optical or any other technology.
Badge
The Guidelines establish that the Profeco Digital Badge (“Badge”) is a benefit with official recognition quality, which may be granted to suppliers that support promoting and favor security, transparency, confidentiality, due information, and provide greater reliability, alongside legal certainty to the consumer in electronic commerce.
For the promotion and diffusion of those suppliers to whom the Badge is granted, the Profeco will create the Register that will be made public through the official website of the Badge https://distintivodigital.profeco.gob.mx, which will be updated semi-annually.
Any supplier that carries out or executes electronic transactions and is interested in obtaining the Badge, must fill out the Request Form in order to obtain it. Such form will be available on the official website of the Profeco, and will state, among other information, the below:
(a) physical address in national territory for complaints and claims; (b) registration in the Federal Taxpayers Registry for at least one year; (c) have no debts of fines imposed by Profeco; (d) in case of having been notified, having appeared at the conciliatory proceedings to resolve disputes with consumers; (e) have a voluntary adhesion contract registration with Profeco; (f) a copy of the current proof of registration in the registry of the Mexican Business Information System of the Ministry of Economy; (g) copy of the current proof of registration in the National Tourism Registry, if applicable; (h) have adhered to the Code of Ethics or, where appropriate, present the code of ethics that governs it, which must meet minimum standards, similar to that issued by Profeco, and which includes digital advertising and protection to the Human Rights of vulnerable groups; and (i) have a current “https” Security Certificate for the virtual store website.
The Badge will be a digital image that will have the date of issuance, the Serial Number, and the name of the Profeco, with an annual validity and the cost of the corresponding governmental fee.
The consumer will be able to check the authenticity of the Badge by clicking on it. This will redirect the consumer to the microsite https://distintivodigital.profeco.gob.mx, which will be hosted within the servers of the Profeco, where they will find all the information about the visited company and the companies that have such Badge.
The Guidelines establish that Profeco will publish a call every six months for obtaining the Badge and it will be communicated nationwide through the institutional media, social networks and in two newspapers with a great circulation.
Suppliers who wish to participate must send the corresponding documentation within the deadlines set for this purpose in the call.
If the obtaining of the Badge is approved, the corresponding record will be made known to the supplier via the email indicated in its request, together with the step-by-step instructions to incorporate the Badge on its electronic page. The supplier must keep the record for any subsequent procedure.
The supplier may request the annual renewal of the Badge, upon payment of the corresponding governmental fee, for which Profeco will verify compliance with the corresponding requirements alongside the proper use of the Badge.
Having obtained the badge with false documentation or that does not correspond to the real activity of the supplier; not having informed Profeco of the change of address, or company name; improper use or alteration of the characteristics of graphic identity established in the Guidelines, will bring to Cancellation of the Badge for non-compliance with the Guidelines proceeds
The cancellation of the Badge will result in the suspension of its use on the supplier’s electronic page, as of the corresponding notification date and the supplier will not be able to request the Badge within a period of one year from the date of its cancellation.
Code of Ethics
As previously mentioned, for a supplier to obtain the Badge, it is necessary to adhere to the Code of Ethics, that states few of the following:
It establishes the values and principles that all suppliers must observe in activities related to electronic commerce, in order to respect and promote consumer rights, promote a responsible consumer culture, promote Consumer Human Rights, ethical and responsible digital advertising, alongside the protection of vulnerable groups and self-regulation.
It is of voluntary adoption and applicable to domestic and foreign suppliers that offer, distribute, sell, rent or grant the use or enjoyment of goods, products and services, in electronic transactions. If the Code of Ethics is adopted, its compliance will be mandatory and it will have binding effects on the supplier, for which the latter undertakes to respect the principles established in all its electronic commerce activities.
The Code of Ethics does not apply to financial service suppliers.
Every virtual store or electronic commerce platform must have identity, payment and shipping or delivery mechanisms, including, among others, the consumer’s right to revoke his/her consent regarding the transaction held, such as return, replacement or exchange of goods, products or services; term of the guarantees, if applicable; the age restrictions to use the virtual store or e-commerce platform.
The terms and conditions will contain at least the validity period of offers and promotions alongside payment or delivery restrictions, necessary conditions for use or delivery, and penalties for cancellation.
The supplier must provide the consumer with adequate and clear information about the different goods, products or services, being able to use images, audio and video, or any other tool that it deems appropriate.
All those who adhere to the Code must have a Privacy Notice, with a simple and clear language that allows the consumer to access all the information inherent to the treatment and protection that will be given to his/her personal data.
Suppliers must include in their platform or virtual store, and throughout the purchase process, warning legends so that girls, boys and adolescents refrain from providing their personal data, without the authorization of their parents or guardians, so that the purchase is made directly by the latter. They will not publish on their websites, content, statements or visual presentations that are illicit or that could cause mental, moral or physical damage to girls, boys and adolescents.
Virtual stores or electronic commerce platforms must have their own mechanisms to solve conflicts with consumers when there is a breach of the obligations established in the Law, Standard and the Code of Ethics.
Self-regulation is recognized as a reliable, impartial, efficient and secure mechanism for the resolution of conflicts related to activities or commercial practices carried out through digital electronic means.
Virtual stores or e-commerce platforms will seek to resolve disputes with consumers through alternative means of Conflict Resolution.
Suppliers who wish to adhere to the Code of Ethics must fill out the request form to obtain the Code available on the official website of Profeco.
If the adhesion is approved, the supplier will be made aware of by means of the email indicated in its request, granting the corresponding registration to the supplier which it must keep for any subsequent procedure.
Profeco will carry out quarterly monitoring of the adhered suppliers, in order to review their compliance. Said list will be published in the Register of Responsible Suppliers in Electronic Commerce published on the official website of the Profeco.
Virtual stores or electronic commerce platforms that express their adherence to the Code undertake to respect and comply with it in terms of E-commerce, Advertising, Data Protection and Human Rights. The cancelation of the adherence will be requested in case of the non-compliance of the Code.
Considering that nowadays a large part of commercial transactions are carried out electronically, and being the holder of the Profeco Digital Badge is an acknowledgement of the quality and services that trustworthy companies provide to their clients, at Jáuregui y Del Valle, S.C, we are at your disposal shall you require additional information regarding this article or similar matters.
*This article is authored by Alberto Balderas and Carlos Solano and it may reflect their personal opinions independently from the law firm they work for. Shall you intend to apply any of the debated interpretations within the article, we highly recommend to formally consult Jáuregui y Del Valle, S.C. or any other qualified advisor
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