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.
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.
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