Peru

Ministry of Health

Commission on Repression of Unfair Competition

Consumer Protection Commissions of the Institute for the Defense of Competition and Intellectual Property (INDECOPI)

Municipal authorities

Under Art. 18 of Law No. 28705 and Arts. 41 and 42 of Decree No. 015-2008, municipal authorities share oversight and enforcement authority with the Ministry of Health and other executive bodies, and may adopt local penalty provisions to enforce the law and its regulations.

Decree No. 001-2011, Annex 7, provides national penalties for violations related to “comercialización” (“marketing”) of tobacco. These penalties apply to Law No. 28705 Chapter 3 violations concerning, among other things, free distribution of tobacco products, and toys resembling tobacco products. Penalties are as follows: 1) for individuals and legal entities with business capital less than or equal to 10 UIT, a fine of 2 UIT and final closure of the establishment or cancellation of the respective license, as applicable, or 2) for legal entities with business capital greater than 10 UIT, a fine of 5 UIT and final closure of the establishment or cancellation of the respective license, as applicable. Repeat violations are subject to final closure of the establishment or cancellation of license.

Article 47 of Decree No. 015-2008 provides that violations of provisions concerning health warnings on advertising and brand stretching “will be penalized by the Commission on Repression of Unfair Competition and the Consumer Protection Commission of the Institute for the Defense of Competition and Intellectual Property (INDECOPI), pursuant to prevailing law.” An analysis of those laws and penalties is beyond the scope of this commentary.

Penalties for other advertising and promotion violations (such as the ban on advertising on TV and radio, the ban on advertising in certain locations, and the ban on sponsorship) are not specified in the national law or regulations. Some local jurisdictions have established penalties for certain advertising and promotion violations. For example, the Jesus Maria district of Lima, has established sanctions for certain advertising and promotion violations in the amount of 3600 PEN (or less than 1 UIT). The Magdalena del Mar district of Lima has established penalties of 10 UIT for violations of all advertising and promotion provisions. For some violations, the local penalties fill a void, for other violations, the local penalties seem to conflict with the national fines. The Ministry of Health is currently drafting guidelines for the establishment of local sanctions.

In accordance with FCTC Art. 13 Guidelines para. 60, sanctions “should provide for effective, proportionate and dissuasive penalties (including fines, corrective advertising remedies and license suspension or cancellation). In order that the penalties imposed be effective deterrents they should be graded and commensurate with the nature and seriousness of the offence(s), including a first offence, and should outweigh the potential economic benefits to be derived from the advertising, promotion or sponsorship.”

To align with FCTC Art. 13 and the FCTC Art. 13 Guidelines, sanctions should include appropriate fines, corrective action and license suspension or revocation. Accordingly, the Ministry of Health should adopt such sanctions for advertising and promotion violations, or draft guidelines for local jurisdictions’ adoption of sanctions, or both.

Commission on Repression of Unfair Competition

Ministry of Health

Municipal authorities

There are no national penalties for violations of sponsorship provisions. Under Art. 42 of Law No. 28705, municipal authorities may adopt provisions to enforce the law and its regulations. At least one jurisdiction, the Jesus Maria district of Lima, has established sanctions for local sponsorship violations in the amount of 3600 PEN.

In accordance with the FCTC Art. 13 Guidelines para. 60, sanctions “should provide for effective, proportionate and dissuasive penalties (including fines, corrective advertising remedies and license suspension or cancellation). In order that the penalties imposed be effective deterrents they should be graded and commensurate with the nature and seriousness of the offence(s), including a first offence, and should outweigh the potential economic benefits to be derived from the advertising, promotion or sponsorship.”

Accordingly, to align with FCTC Art. 13 and the FCTC Art. 13 Guidelines, the Ministry of Health should adopt such sanction for advertising and promotion violations, or draft guidelines for local jurisdictions’ adoption of sanctions, or both.