On February 07, 2017, the Peruvian Association of Consumers and Users (ASPEC) filed a complaint with the Consumer Protection Commission – Lima Sur Division (National Institute for the Defense of Competition and Protection of Intellectual Property –INDECOPI) against NEMARK DEL PERÚ S.R.L. and CINEPLEX S.A., stating that said companies (which constitute the largest nationwide chains of movie theatres) were infringing Law No. 29571, which constitutes the Code of Protection and Defense of Consumer, due to the prohibition of entrance of the clients to movie theatres operated by said companies with food products that have not been purchased in said establishments.
The abovementioned complaints, filed against CINEMARK DEL PERÚ S.R.L. and CINEPLEX S.A., were prosecuted under Files No. 147-2017/CC2 and No. 148-2017/CC2, respectively. Said proceedings were definitely decided by the Court of Defense of Competition and Intellectual Property- INDECOPI, by means of Resolution No. 0243-2018/SPC-INDECOPI, issued in connection with File No. 147-2017/CC2, dated February 07, 2018 (complaint against CINEMARK DEL PERÚ S.R.L.) and by means of Resolution No. 0219-2018/SPC-INDECOPI, issued in connection with File No. 148-2017/CC2, dated February 02, 2018 (complaint against CINEPLEX S.A.), being declared in both decisions the application of Articles 49.1 and 50 paragraph e) of the Code of Protection and Defense of Consumer, which establish the following:
• Article 49 – Definition of abusive clauses
49.1 In adhesion contracts and in the general contracting clauses not administratively approved, abusive clauses and, hence, non-exigible clauses are all those stipulations not individually negotiated that, against good faith requirements, put consumer, in its prejudice, in a situation of disadvantage or inequality or annul consumer’s rights.
• Article 50 – Abusive clauses of absolute inefficacy
The following are abusive clauses of inefficacy:
e) Those excluding or limiting consumers’ legal rights, such as the right to make payments in advance or prepayments, or to oppose the exceptio non adimpleti contractus or to exercise the right of retention, consignment, inter alia.
According to the aforementioned, in both decisions it was established that the prohibition of going to movie theatres taking food products that would not have been acquired in the commercial establishments of said chains of movie theatres reflected a behavior that was contemplated as an alleged infringement of Articles 49,1 and 50 paragraph e) of the Code of Protection and Defense of Consumer, since said prohibition was an abusive clause of absolute inefficacy which limited consumers’ rights.
Moreover, as corrective measure, CINEMARK DEL PERÚ S.R.L. and CINEPLEX S.A. were ordered that:
“…in a term of ten (10) working days, counted from the day after this resolution is notified, it must refrain from applying against consumers limitative clauses as the one analyzed in the instant case, for which it must remove from its commercial establishments (movie theatres) the sign in which it informs consumers the prohibition of the entrance to its movie theatres with food and/or beverages purchased out of its establishments.
Moreover, to prevent consumers from entering to the movie theatres with food products that for reasons of hygiene, security or others, cause damage to the infrastructure of the establishment or other consumers, the entrance with food to the movie theatres will be subject to those products of equal and/or similar characteristics to those that Cinemark del Perú S.R.L. sells in its establishments, according to the uses and costumes of the market”.
On the other hand, it is important to highlight that the aforementioned Resolutions No. 0219-2018/SPC-INDECOPI and No. 0243-2018/SPC-INDECOPI were issued, in each case, with the dissenting vote of one of the administrative court members.
Moreover, it is necessary to highlight that said decisions deserved serious critics by all the chains of movie theatres nationwide, although the same are applied against CINEMARK DEL PERÚ S.R.L. and CINEPLEX S.A. only. Different local associations expressed their rejection to these new measures adopted by Indecopi, such as: National Confederation of Private Business Institutions (Confiep), National Society of Industries (SNI), Comex Perú, IPAE, American Chamber of Commerce of Peru (AmCham), Apega and the Association of Commercial and Entertainment Centers of Peru (Accep), arguing that these administrative decisions imply a transgression to the rights of freedom of Enterprise and free trade established by our Constitution.
Subsequently to the issuance of the mentioned Resolutions No. 0219-2018/SPC-INDECOPI and No. 0243-2018/SPC-INDECOPI, the Division Specialized in Consumer’s Protection (SPC) of the Court of Indecopi decided on the petitions of clarification submitted by CINEMARK DEL PERÚ S.R.L. and CINEPLEX S.A. with respect to the mentioned corrective measures ordered to said companies, according to which they shall allow consumers to enter their movie theatres with the same and/or similar goods to those offered in their establishments. Among the main aspects of said clarification, the Court of Indecopi established that Prime theatres will not be included in the ordered corrective measures, since the business format of these theatres is different to the ordinary cinema theatres. Likewise, said entity specified the goods that can be recognized as similar goods, since according to the Court of Indecopi, they must be goods having the same characteristics as those sold in said movie theatres, but they can bear trademarks different to those commercialized in the movie theatres. Moreover, it was determined that it corresponded to both chains of movie theatres to establish the idoneous mechanisms to execute the corrective measures in this respect. Finally, it was reiterated that the chains of movie theatres themselves will perform the control of the food products taken to their theatres by clients.
It is also worth mentioning that the movie theatres will be free to regulate their own offers. In other words, the mentioned movie theatres can continue commercializing food and beverages for human consumption in the terms and conditions they deem appropriate.
The mentioned chains of movie theatres recently stated that they reserved the right to demand their clients that the food they take to the movie theatres have health registration according to the aforementioned corrective measures; nevertheless, the ASPEC agents mentioned that said demand was inapplicable, even more considering that for example the food known as “cancha” (popcorn) offered in the movie theatres does not have health registration.
It is also important to state that Peru is not the only country where the aforementioned corrective measures with respect to movie theatres are applied, since there are other countries where sanctions have been imposed to other companies for prohibiting the entrance of clients with food purchased outside the movie theatres, such as Argentina, Spain, Chile, Brazil and Bolivia.
Finally, we must mention that recently the cited chains of movie theatres CINEMARK DEL PERÚ S.R.L. and CINEPLEX S.A. filed judicial actions, specifically contentious-administrative actions before the Peruvian Judicial Branch, against the National Institute for the Defense of Competition and the Protection of Intellectual Property – INDECOPI, requesting the nullity and therefore, the reversal of the cited administrative Resolutions No. 0219-2018/SPC-INDECOPI and No. 0243-2018/SPC-INDECOPI. The filing of the mentioned judicial actions does not leave without effect the current application of the measures ordered in the mentioned administrative resolutions at issue now. The judicial proceedings are pending and the prosecution thereof until the issuance of the final decision by the Judicial Branch could last many years.