The Brazilian Consumer Defense Code provides that informed consumers are essential to a fair and efficient market (Law 8,078/1990). Packages and labels should enable consumers to obtain accurate information as to the quantity of their contents. If a supplier intends to modify – by decreasing or increasing – the quantity of a good which is already known by consumers on the market, a few advertising and selling rules must be strictly observed.
Aiming at protecting consumers from misleading advertising, the Brazilian Ministry of Justice issued Ordinance 81/2002 providing that packages and labels of goods which suffered modification of their quantity shall contain clear, ostensible and precise information – in a font of a highlighted size and color – that there has been a modification on the quantity of the good. Such warning shall additionally inform (i) the quantities of the good before and after the modification and (ii) the quantity of the good which has been increased or decreased in absolute and percentage terms. The information shall be available on the main (front) label for at least three months. The non-compliance with any provision of Ordinance 81/2002 shall characterize misleading advertising and a violation of the consumers´ basic right of information and shall subject suppliers to a penalty of fine or detention. Practice of law shows, however, that the penalty of detention is never applied.
Suppliers shall furthermore adopt any other measures in order to make consumers absolutely aware that there has been a modification to the quantity of a certain good. The rule is: the more information, the better.
For instance, in Appeal # 1,364,915, the Brazilian Federal Superior Court of Appeals (Superior Tribunal de Justiça – STJ)1 found that a manufacturer of soft drinks was liable before consumers for the lack of accurate information regarding the reduction, from 600ml to 500ml, on the quantity of its products. The manufacturer contended that all information required by Ordinance 81/2002 has been added to the labels and that the price has been proportionally reduced according to the reduction of the quantity of the products. Nonetheless, the Court concluded that the information has been added to the back of the package (not to the main – front – label) and that the font, although in bold and caps lock, has been not of a highlighted size and color. The STJ confirmed the penalty of fine imposed by the State of Minas Gerais, referring that the manufacturer has not only violated its duty to inform and committed an act of misleading advertising, but also has introduced a defective product in the market (defective as to the information on its quantity) and failed to meet consumers´ reasonable expectations.
Brazilian Courts and Consumer Protection Agencies firmly require proactive conduct from suppliers with regards to their duty to inform and the observance of advertising and selling rules as to the goods which suffer modification of quantity.
This requires suppliers to be very careful in a broad sense, also with regards to the launching of new versions of products. For instance, if a supplier intends to launch an additional version of a product with a similar size/weight of one that already exists in the market and the average consumer may not clearly identify the difference between the products – e.g. a new box of cookies that contains 500g, while the original version contains 400g – it is essential that the new product provides clear information to the consumers that it is solely an additional version – not a substitute – and the original version is still available on the market. Thus, consumers are not misled by the interpretation that the product may have suffered a modification of its quantity.
Clear information and accurate advertising are key factors for suppliers to avoid misleading interpretation by consumers and to comply with Brazilian Consumer Defense Laws while selling goods which have suffered modification on their quantity.
1. Minas Gerais Soft Drinks vs. State of Minas Gerais, Appeal #1,364,915, Superior Tribunal de Justiça, 2013.
Brazil adopts a Civil Law System, in which decisions are not binding. However, decisions from the Federal Superior Court of Appeals may be strongly influent before the inferior courts.
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