Through Resolution No. 248/2019 published today (the “Resolution”), the Secretariat of Commerce regulated certain aspects of the new Fair Trade Decree No. 274/2019, which replaced Law No. 22,802 (the “Decree”). Said Resolution introduces the following modifications or main clarifications:
- Delegation of powers: The Fair Trade Division will be in charge of controlling and monitoring the compliance of the Decree and the Sub-secretariat of Internal Market Policies is given certain powers regarding the administrative proceeding.
- Prohibition of duplication of proceedings: The Resolution prohibits the filing of simultaneous administrative proceedings before the National Competition Authority and before the Fair Trade Division for the same acts or conducts. In the cases investigated under the Competition Law, the resolution issued by the National Competition Authority will produce effects of res judicata and those circumstances cannot be discussed again under the Decree. However, if the National Competition Authority dismisses the complaint as inadmissible or closes the investigation prior to the opening of the proceedings, the interested party may file a claim again with the Fair Trade Division if the same acts or conducts imply an infraction to the Decree.
- Scope of acts of unfair competition: The renegotiation, modification of commercial terms and conditions, the termination of a commercial relationship, as well as the regular exercise of any other power or right, may not be considered, in itself, as an act of unfair competition under the terms of Section 10 of the Decree.
- Deceptive Advertising: It will be considered as such the advertising in which the information provided is incomprehensible because of the speed in the speech, the size of font, or any other feature that denaturalizes it.
- Exception of jurisdiction: When the presumed infringement in matters of advertising should be judged by another national body with specific competence in the matter, administrative filings will be submitted to the corresponding body for its investigation.
- Electronic procedure: In order to comply with the obligations set forth in the Decree and for the delivery or reception of communications of any nature, an electronic address (TAD) must be established. This procedure will be regulated in the future.
Amendment of Resolution No. 915/2017 on advertising: the Resolution includes the formal requirements that must be fulfilled when informing in advertisements mandatory legends or warnings (for example, those dictated by ANMAT). Although they are very similar to those already established to inform the essential characteristics of the advertised goods and services, this modification excludes advertising by radio means and incorporates the minimum stay period of 3 seconds for televised, cinematographic or digital advertising, as established by former Resolution N° 789/1998.