Brazil: Advertising To Children - Ban Or Regulate? Some Legal Considerations On The Brazilian Case.

I. The context of current debates

Advertising to children has become one of the most relevant issues in Brazilian society today, and not without reason. Were it not for the child-consumption relationship, in itself a fundamental theme, the proliferation of access to increasingly variable means and forms of digital communication requires the indispensable protection of the infant during the early stages of educational and cultural upbringing.

In spite of its relevance, discussion on the subject – at least in the field of Law – seems at times to meander through unscientific paths. On this regard, it should be noted, for instance, that a significant part of the supposedly juridically-minded debates on regulation of advertising to children in Brazil often disregard the fact that our legislation already contains strong constitutional and infraconstitutional rules on the issue. Furthermore, it tends to be overlooked that Brazil is recognized worldwide as having a self-regulation system (the National Advertising Self-Regulation Council – CONAR) that, for over four decades, has been significantly deepening the existing legal parameters, granting celerity and legal stability to consumer relations and harmonizing the legislation to the public interest.

We believe that any discussion about advertising to children and its possible effects – both positive and negative – on the Brazilian society should be based on a few important premises.

First, advertising is, by its very nature, a form of expression of ideas, opinions and information. As such, it must be viewed as a fundamental and, therefore, constitutionally protected freedom. Legislative initiatives to ban advertising altogether, including child advertising, are hardly compatible with a free and democratic society, as they violate basic principles of the Federal Constitution and, in fact, ultimately hamper free access to ideas and the formation of social convictions.

On the other hand, since no freedom is absolute, advertising to children should also not be allowed as an abusive practice of this expression. Misleading or abusive advertising can never be accepted, especially when, through techniques or trickery, it takes advantage of the child's lower capacity for discernment. In this regard, some restrictions on advertising to children and consumerism as a form of social status, imposed by the Consumer Protection Code – CDC and the Statute of the Child and Adolescent – ECA, as well as by CONAR itself (which, by the way, has a specific chapter on the subject) have been fundamental.

However, when devised and produced in a responsible way and in compliance with current legislation, as well as with the greater good of Brazilian society, advertising - including children's advertising - can and should play a very important role, be it in the field of ideas or in the context of a dynamic economy. Therefore, any initiatives aimed at banning per se this licit activity that is duly regulated by our legal system should be eschewed.

Finally, a third center of gravitation in this discussion would be the role of the family, especially that of the parents in the context of child protection. More than norms and measures to rationalize their enforcement, it is crucial that the family educates and guides the child so that, in a mediatic and globalized world, it learns to deal in a safe and healthy manner with the most diverse social phenomena, including advertising and consumption.

This article aims at contributing to this debate by shedding light on discussions concerning the legislative framework – both existing and under legislative consideration – in three steps. In the first, we examine attempts to "ban per se" any and all advertising to children. In the second, we calibrate our lenses for an accurate description of the positive framework on advertising to children that exists in Brazil, discussing also its effectiveness. Finally, as a closing and indirect assessment of the mixed model of control in force in the country, we present to the reader an international overview on the subject.

II. Advertising to children and social function

Few areas of Law have been targeted at such length with proposals of banishment or "enclosure" as advertising to children. Such iniciatives are exemplified by two Draft Bills currently under discussion at the National Congress: (i) PL No. 5921/2001, by Congressman Luiz Carlos Hauly, to prohibit advertising for the sale of children's products; and (ii) PL No. 702/2011, by Congressman Marcelo Matos, to prohibit the placement of children's advertising on open or closed television channels from 7:00 AM to 10:00 PM.

Notwithstanding their unquestionable good faith and concern for the public interest, these initiatives do not seem to observe the fundamental guarantees of freedom of expression and economic activity, as provided for in the Federal Constitution. As is well known, the protection afforded to advertising in the Constitution is twofold: (i) as the exercise of freedom of expression and information on available products and services (articles 5, paragraph X, and 220 of the Federal Constitution); and (ii) as an economic activity guaranteed by the principles of free enterprise and free competition, pursuant to article 170.1

Even more worrying is the fact that bills of such nature often arise from an understanding of child psychology and social context that may ultimately have a backlash effect on the country's economic and social development. Advertising, as a mechanism for free dissemination of ideas and information about goods and services, becomes an inseparable part of the formation of preferences by individuals, fostering innovation, competition and more complete information to consumers. In the same way, children are inevitably born surrounded by different types of media (especially digital forms as widely disseminated today), to an extent that makes it virtually impossible to prevent their access to such information; therefore, it would be futile to seek impede their access to information of a predominantly commercial nature.

The concept that children should be totally excluded from any advertising message is partly due to the questionable idea that, by doing this, minors would be "more protected" and "less anxious" about the information surrounding them. Although child advertising is indeed a very complex subject – and therefore subject to control when it deliberately exploits the child's lack of judgement and experience – it is equally true that it is not harmful per se; on the contrary, it often contributes to the construction of the child's critical universe. Therefore, removing publicity from the world of children does not necessarily mean that they will become safer or more mature regarding possible excesses of the consumer society.

Indeed, the central factor in a healthy relationship between an audience of children and the advertising activity is that children should be led and guided by their parents, caregivers and others who participate in their life. A key component to such education is teaching children to deal with denials and frustrations, including those generated by advertising stimuli. As Jean-Pierre Lebrun teaches, "The process of humanization begins with the understanding that there will never be complete satisfaction. This is the healthy course of things."2 It is, therefore, the duty of parents to impose their authority and judgment upon their children's request to buy a product that is perceived – by the responsible adult – as unfit for them, whether because of price, utility, symbology, etc.

In the same vein, Professor Roberta Densa says, "Children and adolescents develop autonomy progressively and have the right to self-determination. However, at the same time, it is the duty of parents to ensure education and upbringing through the imposition of the limits deemed necessary for a healthy coexistence in society and with the family, as well as the protection of life and health of children. The parents' task is a hard one."3

Finally, Claudemir Viana, Professor of Education at the University of São Paulo, affirms that the characteristics of an audience formed by children are built through a continuous process of social negotiation, which is why it is critical to provide this audience with advertising content in order to allow them to become aware and critical of what they access and consume.4 Moreover, the Professor states that mere "censorship does not transform"; on the contrary, it can cause even more deficits in the process of child development.

It follows that, instead of isolating the child from publicity and other means of formation of opinion, the fundamental premise is that a deep and wide-ranging media education must be granted with the direct participation of parents and the family in general, as stated in article 227 of the Federal Constituion. In other words, the sharing of responsibility between family, society and State for the protection of the child does not entail, in any instance, measures of a prohibitive nature or of censorship emanating from the State. Thus, advertising, when performed within the applicable legal and self-regulatory framework, can become an ally of society – for example, in promoting healthier habits or responsible behaviors.

III. Effectiveness of Brazilian legislation

The main protection against child abuse in advertising derives directly from the Federal Constitution, whose restrictions on advertising are contained in article 220, paragraph 4, according to which tobacco, alcoholic beverages, pesticides, medicines and therapies shall have their publicity restricted by federal law, pursuant to item II, paragraph 3, of the same article. In compliance with this rule, Laws no. 9,294/96 and no. 10,187/2000, which enforced restrictions on advertising of these products, were enacted.

Specifically in relation to item II, paragraph 3 of article 220 of the Federal Constitution, it should also be noted that:II - Federal law shall: §3 establish the legal means to guarantee to the person and the family the possibility of defending themselves against radio and television programs that contravene the provisions of art. 221, as well as the advertising of products, practices and services that may be harmful to their health and the environment."

Our Consumer Defense Code, by expressly admitting advertising to children and ruling out only any abuse of the child's ability to discern, is observing precisely the same constitutional precept.  Advertising to children, thus, is also guaranteed in article 37, paragraph 2 of the CDC, which prohibits only advertising "(...) that takes advantage of the child's lack of judgment and experience (...)."

As can be noted, both article 220 of the Federal Constituion and article 37 of the CDC are clear in the sense that the law must only make the means available, thus providing the conditions for individuals to defend themselves. On the other hand, nowhere in the Federal Constitution there is any provision granting federal law the role of replacing the choices on individuals based on the assumption that they would be unable to form their own preferences and make their own decisions in a free and conscious way, including parents' decisions concerning their own children. Indeed, it should be noted that advertising to children is not included in the list of activities prohibited by art. 220, paragraph 4 of the Federal Constition, so any initiative of prohibition per se of this activity would run against the constitutional framework and the CDC itself, which regulates abuse of the activity and not the activity itself.

IV. (Self-) Regulation on the issue in Brazil and worldwide

Finally, it would be important to examine the world at large as a way of assessing the validity of the thesis – widely disseminated in some sectors – that regulation of advertising to children in Brazil is out of pace with provisions enforced in other developed countries.

As seen, Brazil has a remarkably strong and effective constitutional and legislative framework to curb abuses on this issue. Furthermore, in the context of self-regulation, Brazil has one of the most rigorous ethical standards on advertising to children in the world, and, to date, only two countries and one province have banned television advertisement to children: Norway, Sweden, and the province of Quebec. However, even in Sweden, such restriction applies only to open TV, whereas on pay-TV and other media advertising is freely consumed – not to mention that, in the digital age, such prohibition would be difficult, if not impossible (which also goes to show that the only feasible path is to provide education on consumption and control of abuses).5

On the other hand, as is done in Brazil, most industrialized and democratic countries choose a system of self-regulation combined with external regulation in order to achieve an efficient and dynamic way of dealing with possible abuses in advertising to children, always taking into account the principles of freedom of expression and free enterprise together with the public interest, and based on a broad and direct relationship with the civil society.

Indeed, the so-called "mixed control" is the most widespread and recommended public policy among member countries of the OECD (Organization for Economic Cooperation and Development)6.

It is not coincidental that the norms and the activity of CONAR have been in line with this mixed vision, involving regulation and self-regulation. Article 37 of the Advertising Self-Regulation Code and its Annex H contain an extensive list of prohibited avenues in advertising to children, expressly banning, for example: (i) the use of imperative appeals to consumption or stimuli to excessive consumption; (ii) messages that generate feelings of superiority in relation to other children due to consumption of the product, of inferiority due to the lack thereof, or cause a feeling of discrimination; (iii) messages that encourage socially objectionable behavior in order to obtain the advertised product; (iv) messages that can spread fear in children, expose them to dangerous situations or simulate embarrassment to obtain the product; or (v) messages presented in journalistic format (editorial advertising), which may be mistaken for news and taken seriously by children.

For the same reasons, in 2013 CONAR revised its rules and, among other restrictions, banned merchandising for children or any other form of indirect advertising targeted at children, given their reduced ability to grasp the commercial nature of such messages, thus restricting the placement of child advertising exclusively to commercial breaks (art. 37, IV, CBARP).7

It should be stressed that this continuous update process does not involve only the rules themselves, but principally their implementation mechanisms. In this sense, CONAR has started hundreds of ethical procedures related to the issue, with application of penalties, which are always upheld by the market. Finally, for cases viewed as critical, CONAR provides for the issuance of liminary orders, including immediate suspension of the ad in question, through a summons not only to the advertiser but also to the media, ordering immediately cessation of dissemination of the content found inadequate. Their decisions tend to be fast (90 days on the average) and are binding to the market as a whole (both members and non-members), as they also include the broadcasting media, which usually take immediate action. Along with this self-regulatory action, there is always the possibility of legal repressive control of abusive messages to children.

V. Final remarks

As we have seen throughout this article, extremely emphatic plaidoyers against advertising to children sometimes arise from ideological petitio principii, without correspondence to the existing legal framework or the empirical world, in such a way that they may incur the serious risk of illegitimate State intervention on the ultimate responsibility of the family to guide and educate the child.

At least from a legal standpoint, an absolute ban on child advertising would not be a sensible solution, and may even be impossible in legal and social terms. The proposed ban on advertising to children, in addition to being a gross violation of the constitutional freedoms of expression and enterprise, would possibly be ineffective as a means to curb abusive practices in this sector. Modern societies all over the world have dealt with this problem predominantly through a combination of public efforts and policies far beyond the prohibitive aspect, with special emphasis on the role of education and family for a more effective protection of children in the consumer market.

The matter of children and advertising, in the light of the existing normative framework, must therefore be treated with due responsibility, which presupposes that any discussion must be based on the legitimate premise that advertising can also contribute to the development of a democratic society, thus consecrating the notion of freedom with responsibility.

Footnotes

1 For a detailed analysis of those two aspects of the constitutional framework of protection to advertising, see Dias, Lucia Ancona Lopez de Magalhães. Publicidade e Direito, 3rd ed., São Paulo: Saraiva Educação, 2018, p. 41 e ss.

2 Lebrun, Jean-Pierre. Ensinem os filhos a falhar, in Revista Veja (yellow pages), 12/09/2009 edition, p. 24. 

3 Densa, Roberta. "CRIANÇA CONSUMIDORA: a responsabilidade dos pais em relação aos filhos frente aos desafios da sociedade de consumo", in Responsabilidade Civil: Novas Tendências (Nelson Rosenvald & Marcelo Milagres eds.), Indaiatuba: Ed. Foco (2017), p. 395.

4 Source: Viana, Claudemir. Lecture given during a public hearing at the National Congress on 05/24/2016, audio available on the Chamber of Deputies website (www.camara.leg.br).

5 According to a study by the World Economic Forum (2015) on the nations most apt to exploit digital technologies (Global Information Technology Report), Finland, Sweden and Norway are among the top five countries.

6 According to the study, self-regulation: (i) can go beyond legal requirements, contributing to the improvement of outcomes for consumers; (ii) is more flexible than legal norms, providing speedier responses to new issues and bypassing bureaucratic procedures; (iii) has the ability to quickly fill regulatory gaps; (iv) entails greater technical knowledge; (v) costs less; (vi) is based on strong values and ethics; (vii) provides high levels of compliance with self-regulatory standards; (viii) increases competition; and (ix) saves public money (Industry Self-Regulation: Role and Use in Supporting Consumer Interests," 2015).

7 For an in-depth look at legal and self-regulatory restrictions on children's advertising, see Dias, Lucia Ancona Lopez de Magalhães. Publicidade e Direito, op. cit., p. 245-268.

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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