Product liability and safety law in Mexico: overview

The two main regulations regarding product liability are the Civil Code and the Consumer Protection Law. Each Mexican state has a Civil Code that regulates civil liability, which includes product liability and hidden defects, and there is a Federal Consumer Protection Law (FCPL) that applies to all of Mexico.

In consumer protection law, the only requirement is to have a proof of purchase. If the supplier denies the defects or the liability, the Federal Consumer Protection Agency (PROFECO) can conduct its own investigation and impose fines against the supplier; however, the consumer must initiate a civil liability claim.

In a civil liability claim, the wrongdoing or the hidden defect must be evidenced by the claimant, unless there is strict liability. Strict liability applies if there is damage caused by dangerous products due to the speed they develop, their explosive or flammable nature, the electric current they require or other analogous causes, unless the damage is produced by the negligence of the victim. In this case, liability will be established based on the use of the dangerous product, and in some Mexican states, by ownership of the product regardless of the conduct.

Under the consumer protection law, the consumer can initiate the claim against the seller, manufacturer or importer (the supplier). The consumers are entitled to the substitution of the product or the return of the amount paid for the delivery of the product, as well as a refund and a compensation of a least 20% of the paid price.

If the claim is filed as a civil action, the entity that acted against the law and directly caused the damage will be liable. For example, if an importer disregarded the Mexican official standards and the imported product caused damages, it will be liable for damages.

Under a strict liability claim, in most Mexican states the person using a defective dangerous product which causes damage to a third party is liable, and in some other states like Mexico City, the owner of such product has joint liability with the person using the product.

Under the consumer protection proceedings, the supplier can deny the product defects. Both parties and PROFECO can rely on expert opinions regarding the alleged defects. If no agreement is reached in the administrative claim and PROFECO has sufficient evidence, it can issue a binding technical opinion which the consumer can file as a basis of summary commercial proceedings. The claim must be filed before PROFECO within one year from the purchase of the product.

In a civil claim, the main defences to a product liability claim are:

The limitation period will depend on the type of action, for example:

A supplier cannot limit or waive its liability as it is considered a matter of public policy by the Federal Consumer Protection Law. However, all products must have a warranty of at least 60 days. Dangerous products must have clear and visible warnings on the package and on the product, as well as instructions for use.

A product liability claim can be filed at PROFECO in a conciliatory proceeding. If the parties fail to reach a settlement agreement, the agency can issue a technical opinion on the breach of consumer rights that can be used to file a summary commercial proceeding against the supplier, and to impose fines and other administrative sanctions against the supplier.

Civil product liability claims are resolved by a local trial court presided over by a judge, in an oral or written proceeding, depending on the value of the claim and the local civil proceedings code. Also, depending on the value of the claim, an appeal proceeding can be filed. Such appeals are usually resolved by court of appeals composed of three judges.

A commercial product liability claim can be resolved either by a federal district court or by a local trial court. Depending on the value of the claim, the proceedings can be oral or written, however, from 2018, most product liability claims are resolved in oral proceedings. Juries are not used in Mexico.

If the consumer opts for administrative conciliatory proceeding, the claim can be filed orally at the local PROFECO office. A civil or commercial product liability claim is initiated by filing a written request at the competent court.

In the administrative conciliatory proceeding, the consumer must present proof of purchase of the product. PROFECO can request documentary evidence from either party to settle the claim and if no agreement is reached, it can issue a technical opinion.

In a civil proceeding, the claimant has the burden of proof regarding the elements of the claim (wrongdoing or breach of legal obligations, loss, and its direct cause) with substantial evidence (relevant evidence which can reasonably support a conclusion).

In the administrative conciliatory proceeding, documentary evidence can be requested by PROFECO from either party. No witnesses or depositions are allowed; however, expert opinions can be rendered.

In a civil proceeding, documentary evidence must be filed with the claim or the answer to the complaint, as well as the names of the witnesses. Expert opinions and depositions can be offered in the proper trial stage after the pleadings. If so, one or more hearings will take place to allow time for the evidence to be heard and for witnesses and deposed parties to be cross-examined.

Since 2017, in commercial proceedings, all evidence must be filed with the claim or in the answer to the complaint.

Both parties can provide experts at their own expense. The expert must have a degree in a field relevant to the subject of the evidence. The expert opinion must be provided in a written report. In an oral proceeding, the expert must attend the relevant hearing to present their conclusions and be cross-examined by the other party and the judge. The court can also appoint a third-party expert.

There is no discovery in Mexico. However, pre-trial proceedings can be initiated to obtain a deposition from the party or a witness statement.

There are no specific remedies regarding spoliation of evidence, however, criminal actions or damages can be claimed if the claimant or public prosecutor can prove that the destruction was intentional to obstruct justice. Also, there are binding judicial precedents that allow a fact to be deemed proven if one party intentionally hides documents requested by the counterparty.

Both parties can request interim remedies that are deemed necessary to preserve the matter of the trial, including stay orders, attachment of assets, and deposit of documents to the court. Such a request can be granted on reasonable suspicion of tampering with evidence, dilapidation of assets, probable damages and similar circumstances.

Legal costs can be awarded under certain circumstances. However, such costs are limited to a percentage of the amount claimed or to a legal tariff.

Depending on the amount claimed and the action, an appeal proceeding can take place. This appeal can be resolved by a court of appeals composed of a panel of three judges (apelación) or in lower courts, or for procedural rulings by the same judge (revocación).

After the final resolution by the trial court or the court of appeals, both parties can initiate a review of the constitutional and human rights compliance of the resolution and the proceeding called Amparo, which is resolved by the Federal Courts, and in some cases, the Supreme Court of Justice.

Depending on the product liability action, litigation can take from three months to around three years. An administrative complaint filed before PROFECO in which the supplier is willing to reach an amicable solution takes around three months, and a civil action, from trial court to the constitutional review of the proceeding by Federal Courts can take up to three years.

Many suppliers are willing to reach an amicable solution for minor claims. However, major product liability claims are rarely settled as the burden of proof to the claimant is high, and it is therefore difficult to establish a successful action. There are no specific rules for settlements other than that they must comply with Mexican public order.

Class actions are available in Mexico. Legal standing for such collective proceedings is granted to certain government agencies such as PROFECO, non-profit organisations, and legal representatives of at least 30 affected members. Class actions in Mexico have a certification phase in which the probable cause for the action must be evidenced and the legal standing is reviewed. Once the proper trial stage initiates, some legal formalities are waived, as the judge can request evidence from both parties. Any person affected must opt in to the class action to receive a benefit. Since class actions in Mexico were only properly introduced in 2013, there are few legal precedents regarding this type of proceedings, however, they are becoming more popular.

Litigation by third parties is allowed as well as contingency fees.

The main remedies available for a successful party include:

Damages in Mexico are compensatory in nature and must be evidenced by the claimant. Damages involving personal injuries and/or death are statutorily limited to a tariff set out in the federal labour law and calculated on the basis of the current minimum wage. However, in recent years, the courts have been using moral damages to grant higher than usual compensation since moral damages are not restricted.

Also, exemplary damages have been granted very exceptionally, as there is one judicial precedent issued by the Supreme Court of Justice (Mayan Palace case).

Joint liability must be established by law or by contract. For product liability, there is joint liability among the entities that caused the loss. In strict liability, some Mexican states have established joint liability with the owner of a dangerous product which caused the loss.

The Federal Consumer Protection Law (FCPL) and the Federal Standardisation Act provide specific obligations regarding product safety and consumer protection. "Consumer" is defined by the FCPL as the individual or legal entity that acquires, trades, or enjoys goods, products or services as the ultimate beneficiary.

"Consumer" can also be understood as an individual or legal entity that acquires, stores, uses, or consumes goods or services to incorporate them into processes of production, manufacturing, marketing, or to render services to third parties, if the amount of the involved products is under MXN 545,737.62.

PROFECO (www.gob.mx/profeco) is the authority that supervises compliance with general consumer protection and product safety law, enforces the Mexican official standards (NOM) and orders product recalls. It can:

Food and drugs safety is overseen by the Federal Commission for the Protection against Sanitary Risks (COFEPRIS) (www.gob.mx/cofepris/). This agency can grant or revoke authorisations to manufacture, distribute, import and research drugs and certain foods, as well as supervise and investigate food and drugs, impose fines and other sanctions.

Any product that fails to comply with the relevant official standards (NOMs) can be subject to recalls or stay orders, particularly where the product represents a danger to the life or health of consumers.

PROFECO can issue an official notice forbidding the sale of a defective product, and the party responsible for breaching the relevant NOM, in addition to other applicable sanctions, must reimburse:

The producers, manufacturers, importers and suppliers of a defective product are responsible for the recall of each and all units of the defective product.

The Federal Standardisation Act sets out that in the event of product recall, all media must participate in advertising the recall at the request of PROFECO and all retailers must suspend the sale of the products once the message is broadcasted and published in the Mexican Official Gazette. The costs related to the recall must be reimbursed by the responsible party. PROFECO can also issue interim orders, such as:

The Federal Consumer Protection Law requires any supplier with knowledge of safety issue of any dangerous product to report it to PROFECO immediately. However, there are no other specific timeframes or requirements for the report.

In case of breach of this obligation, PROFECO can impose the following penalties:

There are no specific requirements to provide progress reports under Mexican Law. However, lack of such reports can be deemed by the PROFECO as lack of interest of the entity in breach and can be taken into consideration when issuing related fines or other sanctions.

The developing trends regarding product liability in Mexico can be divided into three categories:

On 15 September 2017, a constitutional amendment ordered the courts to prioritise resolving claims with less regard to legal formalities. This may translate to binding judicial precedents disregarding some aspects of the traditional product liability claim, such as providing a large quantity of evidence regarding the direct link of damages to a defective product; relieving or diminishing the burden of proof for the claimant.

This reform also ordered a new national code for civil procedures 2018 but this is still pending to be enacted. This will have a great impact on general litigation, as Mexico currently has 33 procedural codes for each state and the federation. The omission from the Mexican Congress to issue the national civil procedures code is currently being reviewed by the Supreme Court of Justice.