Brazil: Advertising To Children In Brazil: A New Minefield

Co-authored by: Lívia Miné, Rebeca Arruda Gomes & Amanda Rudzit

Advertising to children is currently a heated topic in Brazil in view of the recent decisions by the Superior Court of Justice ("STJ").

Last  year,  the  STJ  ruled  an  important  case1   filed  against  one  of  the  food  industry  giants, concluding that the defendant engaged in abusive advertising of food products for children. The defendant's   campaign   allowed   children   to   exchange   product   packages   plus   R$5.00   for wristwatches with images of the Shrek cartoon. The STJ considered this campaign to be a tie-in sale, which is illegal under the Brazilian Consumer Defense Code ("CDC"), and abusive because it induced the young audience to consumption and manipulated the innocence of their universe. The Supreme Federal Court reporting Justice decided not to hear the appeal filed by the manufacturer on the grounds that it dealt with non-constitutional issues only. Manufacturer may still appeal to the whole panel.

On April 25, 2017, the STJ rendered a similar decision in a nearly identical case2, granting the appeal filed by one of the São Paulo Consumer  Agencies  (Procon)  to maintain  a fine against another company in the food industry that offered stuffed animals in exchange for R$3.00 and stamps found in what was deemed an unhealthy product. The written decision is not available yet, but it appears that once again what triggered the conclusion of abusive advertising was the tie-in sale directed to children. The STJ demonstrated a growing concern about the manipulation of children's innocence through different forms of entertainment in times when child obesity is a real issue for society as a whole. According to the STJ, the decision about the purchase and consumption of food products shall lie with the parents only.

While  these  decisions  have  provoked  a  heated  debate  in  the  legal  community  and  a deep reflection  about children's  health, they have also given rise to many questions  such as what forms of campaign are considered manipulative  of children's realities, and what are the limits imposed to the food industry as to products that can be equally targeted at children and adults.

Research in the main Courts of Appeals in the country3 reveals that the recent STJ decisions have not  yet  greatly  affected   the  way  that  these  courts   view  the  matter.   The  predominant understanding  is that the evaluation of possible abuse in advertising directed to children must be done on a case-by-case  basis, and that advertising of food products directed to children is not abusive per se.

Although decisions from the STJ usually are an indication of how lower courts will rule similar cases, such decisions in principle are not binding, given Brazil's codified legal system.

One of the corner stones of the Brazilian Constitution is the right to freedom of market, speech and thought, which makes the discussion on the limits of advertising to children even more interesting. In addition to the Constitution,  there are several laws that grant ample protection to children, such as the Child and Adolescent Statute ("ECA"), the CDC, and the CONAR Code (a self-regulating  advertising  code). These laws  and  regulations  do not  prohibit  advertising  to children, but, rather, govern the way it shall be done.

Conversely, in the Federal Government's sphere,  Normative Resolution 163/2014 issued by the Children's and Adolescent's Rights National Council (CONANDA), from the Ministry of Justice, considers   abusive the advertising directed to children with the intent of encouraging them to consume any product or service.  While a heated discussion started when this Resolution was issued,  its validity  has been  repeatedly  challenged  since  a resolution  should  not overpower formal laws such as the CDC; and prohibitions for specific categories of abusive advertising shall be imposed through ordinary laws. Thus, the industry has always considered the Resolution to be an ineffective backdoor prohibition.

In summary,  despite the existence of laws and regulations  that protect children  and impose limits on advertising targeted at this audience, such type of advertising is not banned in Brazil. On the other hand, courts – especially the STJ – are revealing an increasing tendency to consider specific types of advertising to children to be abusive, thus turning this issue into a real minefield for manufacturers.

Footnotes

1 Pandurata Alimentos Ltda. vs. Public Prosecutor's Office from the State of São Paulo, Superior Court of Justice, Appeal #1.558.086/SP, 2016.

2 Fundação de Proteção e Defesa do Consumidor do Estado de São Paulo vs. Sadia S/A, Superior Court of Justice, Appeal #1.613.561/SP, 2017.

3 Research was conducted in the Court of Appeals in the states of Rio de Janeiro, São Paulo, Minas Gerais, and Rio Grande do Sul, as well as in the Distrito Federal, from the period between June, 2016, and April, 2017.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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