Advertising, Marketing & Promotion Comparative Guide

1 Legal framework

1.1 What are the main legislative and regulatory provisions that govern advertising in your jurisdiction?

The legal basis for the regulation of advertising is set forth in the 1988 Brazilian Constitution, which:

• establishes the general principles for advertising; and
• ensures the protection of free speech.

The main legislation applicable to advertising or any commercial offering of products and services in Brazil is:

• the Consumer Protection Code (Law 8.078/90); and
• the Civil Code (Law 10.406/02).

Other relevant laws include:

• the Promotional Contests Act (5,768/71);
• the Advertiser Profession Act (4,680/65);
• the Industrial Property Act (9,279/96);
• the Copyright Act (9,610/98); and
• the Children and Adolescent Act (8.069/90).

Based on these laws, federal government agencies issue resolutions and regulations on advertising. The regulations on advertising to children issued by the National Council on Children and Teenagers' Rights (Resolution 163/2014) are noteworthy, as they impose severe restrictions on commercial offerings targeting children and underage consumers. For example, the use of cartoons, action figures, dolls, language or musical effects that appeal to children is prohibited in advertising under the resolution.

The advertising and promotion of drugs, cosmetics, food and other products are regulated by Federal Law 6.360/76, Section X. Advertisers should also consider the comprehensive regulatory framework established by the National Agency of Sanitary Vigilance (ANVISA).

Advertisers should also consider the impact of the regulatory framework established by the National Cinema Agency on the broadcasting/production of audiovisual advertising materials, as prior registration of (national and foreign) content and the payment of a specific tax – the contribution to the development of the national film industry (condecine) – are required.

1.2 Which bilateral or multilateral instruments or treaties with effect in your jurisdiction (if any) have particular relevance for advertising in your jurisdiction?

Brazil has not entered into any bilateral or multilateral instruments/agreements that are directly related to advertising.

1.3 What industry codes or guidelines have relevance for advertising in your jurisdiction?

The National Council for Advertising Self-Regulation (CONAR) is a self-regulatory industry body which is responsible for reviewing complaints by businesses, government bodies or consumers, or on its own initiative, regarding ethical compliance of advertising across all media types under its Code of Self-Regulation for Advertising (CBAP)). CONAR is highly regarded by Congress, government authorities, courts and regulators as a reliable body for enforcing advertising law. The CBAP is widely followed by the industry and sets forth general ethical principles to assist advertisers, media channels and consumers in ensuring compliance for all types of advertising materials and marketing campaigns. The CBAP also sets out specific rules on:

• highly regulated products, such as:
• • alcoholic beverages;
  • food and soft drinks;
  • over-the-counter drugs; and
  • tobacco; and
• specific industry practices such as green marketing.

In addition to CONAR, the Advertising Market Self-Regulation Forum (CENP) serves an important mission of promoting transparency and ethics in commercial relationships among relevant stakeholders in the advertising market, such as advertisers, advertising agencies and media outlets. Among other activities, CENP certifies the technical qualifications of advertising agencies, ensuring that they have technical and professional structures that comply with the law and the Standard Norms of Advertising Activity.

1.4 Which bodies are responsible for implementing and enforcing the advertising regime in your jurisdiction? What is their general approach in doing so?

Although CONAR is a non-governmental self-regulatory entity, it serves as Brazil's main advertising law body at the federal level. Its mission is to protect the public interest and ensure that consumers receive truthful and accurate advertising messages while safeguarding free speech and fair commercial competition.

For several regulated industries – such as drugs, cosmetics and food – the regulatory framework of the National Agency of Sanitary Vigilance (ANVISA) is also of significance, as it governs the advertising and promotion of such products. Under the powers granted it by Federal Laws 6.360/76 and 6437/77, ANVISA monitors and enforces compliance with the applicable rules and may impose fines against non-compliant practices.

At the state level, the consumer protection authorities may monitor and enforce against deceptive or abusive advertising, potentially fining infringers. Such administrative fines are subject to judicial review before a court of law. In general terms, the consumer protection authorities enforce against advertising practices that:

• are likely to cause harm to the health, safety or finances of consumers;
• have significant potential to affect a considerable number of consumers; or
• target a vulnerable population.

The regulatory framework of the National Cinema Agency also establishes requirements for the broadcasting and production of advertising audiovisual materials directed to Brazilian consumers. Among other things, the agency:

• sets rules on the involvement of national production companies and crew in foreign ads, as well as adaptation of language and translation;
• establishes requirements for the prior registration of (national and foreign) audiovisual ad materials; and
• sets criteria for the payment of the specific broadcasting tax (condecine) applicable to such audiovisual ads.

2 Authorisation and clearance

2.1 Do advertisers need any kind of licence or authorisation in order to operate in your jurisdiction?

There is no prior content control of advertising in Brazil, but advertisers should comply with the National Cinema Agency's regulations on the broadcasting and production of audiovisual advertising materials directed to Brazilian consumers. As discussed in question 1.4, the agency:

• sets rules on the involvement of national production companies and crew in foreign ads, as well as adaptation of language and translation;
• establishes requirements for the prior registration of (national and foreign) audiovisual ad materials; and
• sets criteria for the payment of the specific broadcasting tax – the contribution to the development of the national film industry – applicable to such audiovisual ads.

2.2 Do ads require any kind of clearance before they can be released in your jurisdiction?

There is no prior content control of advertising in Brazil, but advertisers should comply with the National Cinema Agency's regulation on the broadcasting and production of audiovisual advertising materials directed to Brazilian consumers, as discussed in question 2.1

3 General advertising regime

3.1 What general rules and requirements apply to ads in your jurisdiction?

All advertising or marketing messages must:

• be respectful of consumers;
• be truthful;
• provide precise information as to the products or services promoted; and
• not abuse consumers' trust or exploit their inexperience.

3.2 What rules and requirements apply to puffery in your jurisdiction?

Brazil has no specific legislation on puffery, but doctrine and jurisprudence recognise this practice as acceptable as long as the claim is subjective and noticeably exaggerated.

3.3 Under what circumstances must claims in ads be substantiated?

All allegations, descriptions, claims or comparisons relating to facts or objective assertions must be verifiable. Disclaimers are commonly used, especially to substantiate claims relating to surveys or statistics. Testimonials must reflect current or past experience with the relevant product or service.

3.4 What rules and requirements apply to the use of the following? (a) Test results; (b) Survey results and (c) Testimonials.

(a) Test results

Advertising must include only relevant and defensible scientific information, expressed in a manner that is clear to and understandable by the average consumer.

(b) Survey results

Advertising must refer only to research or statistics that have an identifiable and responsible source. Additionally, advertisers must not use partial data from research or statistics in a way that leads to distorted or opposite conclusions compared to those that would be reached through a complete examination of the referenced data.

(c) Testimonials

Ads must include only personal and genuine testimonials relating to the past or present experience of the endorser or the person being portrayed. Testimonials must be verifiable. Non-personalised models may provide unsubstantiated testimonials, but under no circumstances should consumers be led to believe that these are actual testimonials from experience. The use of models who are characterised as specialists/professionals (eg, dressed in uniforms or professional clothing) must not mislead consumers and must observe professional requirements. Finally, the use of lookalikes is permitted, provided that this has been authorised by the person portrayed.

3.5 What rules and requirements apply to the protection of minors?

Specific laws and regulations apply to advertising. The Children and Adolescent Act (8.069/90) (ECA):

• sets out general rules on the rights of:
• • 'children', defined as minors under 12 years of age; and
  • 'adolescents', defined as minors between 13 and 18 years of age; and
• regulates a number of marketing and advertising practices that may affect this audience – for instance, by expressly prohibiting the inclusion of advertising related to alcohol, tobacco, guns or ammunition in any publication intended for children or adolescents.

The National Council for Advertising Self-Regulation's Code of Self-Regulation for Advertising reflects the principles and rules set out in the ECA and provides specific rules for advertising directed at children, such as prohibitions on:

• the inclusion of direct appeals to consume the product; and
• the use of children/adolescent models to voice a direct appeal, recommendation or suggestion for use or consumption (their participation is expressly allowed in demonstrations of the advertised product/service, however).

As mentioned in question 1.1, the advertising regulations issued by the National Council on Children and Teenagers' Rights (Resolution 163/2014) impose severe restrictions on commercial offerings targeting such audiences.

3.6 Are certain forms of advertising prohibited in your jurisdiction?

Yes. A number of marketing and advertising restrictions apply to products such as prescription drugs and tobacco. The National Agency of Sanitary Vigilance (ANVISA) has a robust regulatory framework governing the advertising and promotion of such products (RDC 96/08). Specifically for tobacco products, advertising is strictly limited to the display of product packaging in sales locations, accompanied by a health warning about the harms of consumption and a corresponding price list.

For pharmaceutical products, ANVISA expressly prohibits the product placement of pharmaceutical brands or names of active substances (RDC 96/08, Article 4).

4 Misleading advertising

4.1 On what grounds will an ad be found to be misleading in your jurisdiction? How does the process unfold?

The Consumer Protection Code (Law 8.078/90) considers as deceptive any advertising that conveys or omits information – whether wholly or partially false – which would be capable of misleading consumers as to the nature, characteristics, quality, quantity, properties, origin, price or any other information about the products or services. Advertising may be challenged at the National Council for Advertising Self-Regulation (CONAR) by competitors, consumers or CONAR itself. Consumer protection agencies such as PROCON or the Public Prosecutor's Office may pursue administrative measures (eg, fines, suspension of the campaign) or judicial proceedings (class actions) against misleading or deceptive advertising.

4.2 If an ad is found to be misleading, what are the consequences for the advertiser?

At the CONAR level, advertisers may be required to remove advertising material or campaigns. CONAR may also issue a public statement about the specific case, but as a non-government body it cannot impose monetary fines or punishments. On the other hand, as the government agency that is responsible for monitoring and enforcing against consumer rights violations, PROCON may (administratively) impose fines and punitive damages against advertisers. Finally, the Public Prosecutor's Office – which is part of the National Consumer Protection System – defends the collective interests of consumers and may seek judicial measures against misleading marketing and advertising practices.

4.3 Can the advertiser appeal the decision? If so, what is the process for doing so?

An advertiser may appeal a first-instance decision of CONAR within 10 days of receiving service of the decision. Administrative decisions of PROCON may be:

• reviewed by its appeal board (appeals have suspensive effect on first-instance decisions); and
• challenged before a competent court.

5 Specific advertising regimes

5.1 What rules and requirements apply to the following types of advertising in your jurisdiction, and what best practices should be considered in each case? (a) Comparative advertising; (b) Promotional marketing (eg, competitions, lotteries and sweepstakes); (c) Interest-based advertising (ie, tailored advertising based on data collected from internet browsing); (d) Native advertising; (e) Influencer advertising; (f) Ambush marketing; (g) Country-of-origin marketing; and (h) Green marketing.

(a) Comparative advertising

Comparative advertising is allowed in Brazil, provided that:

• its primary objective is to inform the consumer;
• it uses objective parameters for comparison;
• the comparison is verifiable;
• in the case of consumer goods, the comparison is made between models manufactured in the same year;
• no confusion is established between products and competing brands;
• it does not constitute unfair competition;
• it does not unjustifiably exploit the image or prestige of third parties; and
• if the comparison is made between products with different prices, this fact is disclosed.

(b) Promotional marketing (eg, competitions, lotteries and sweepstakes)

The free distribution of prizes for marketing purposes is regulated by Law 5,768/1971 and Decree 70,951/1972. Prizes may be distributed through sweepstakes/lotteries, contests, gift vouchers or a combination thereof. Authorisation from the Ministry of Economy is required prior to the launch of campaigns and only legal entities (and not individuals) are entitled to run promotional marketing campaigns. The applicable regulations limit the total value of the prizes (per campaign) to 5% of the legal entity's average monthly operating income in the months prior to the authorisation request. The distribution of goods such as medications, alcoholic beverages and tobacco products is expressly prohibited by law; as is the exchange of prizes for money.

(c) Interest-based advertising (ie, tailored advertising based on data collected from internet browsing)

There are no specific rules relating to such marketing practices; but the National Council for Advertising Self-Regulation (CONAR) recently reviewed a case in which the principles of honesty and truthful presentation were considered in ensuring that consumers are not misled by algorithm-generated offerings.

(d) Native advertising

There are no specific rules on such marketing practice, but CONAR recently reviewed cases in which the principles of honesty and truthful presentation were considered in ensuring that consumers were not misled by native ad content.

(e) Influencer advertising

In 2021, CONAR released an Advertising Guide for Digital Influencers, which provides guidance to advertisers, agencies and influencers on social media advertising. Compliance with the general rules of the Code of Self-Regulation for Advertising (CBAP) should still be observed, but this guide specifically provides recommendations on social media advertising by influencers – especially in relation to the clear and conspicuous identification of commercial content. This is particularly important when the primary audience of the influencer includes children and adolescents.

(f) Ambush marketing

The CBAP prohibits ambush marketing or any advertising activity that generates undue or illegitimate benefits. The General Sports Law (14,597/2023), which was recently passed, criminalises the practice of ambush marketing – whether by association or intrusion. Prior to the enactment of the law, no specific legal provisions defined or regulated 'ambush marketing'; instead, sports organisations tackled such practices under the unfair competition provisions of the Industrial Property Law. The express classification of the practice as a crime has established a more robust scope of protection for the commercial rights of sports entities, event organisers and sponsors.

(g) Country-of-origin marketing

Advertisers should primarily consider the level of substantiation when considering including country-of-origin marketing claims, as the truthfulness of offerings is an essential requirement of the Consumer Protection Code. The code prohibits deceptive advertising, which is advertising that conveys or omits information – whether wholly or partially false – that would be capable of misleading consumers as to the nature, characteristics, quality, quantity, properties, origin, price or any other characteristic of the products or services.

(h) Green marketing

Sustainability claims are permitted, provided that:

• claims of socio-environmental benefits correspond to concrete practices adopted by the advertiser;
• in the case of future actions, the advertiser makes it clear that the claim concerns an expectation of an act not yet realised;
• the information and claims conveyed are true, verifiable and provable;
• the information conveyed is accurate and precise, and expressed clearly in understandable language; and
• the ad does not communicate promises or claim absolute advantages of unbeatable superiority.

6 Direct marketing

6.1 What rules and requirements apply to the following types of direct marketing in your jurisdiction, and what best practices should be considered in each case? (a) Telemarketing; (b) Email marketing; (c) Direct mailings; and (d) Opt-out marketing.

(a) Telemarketing

Brazil has regulations that govern telemarketing activities, including:

• rules on 'do not call' lists; and
• restrictions on the hours during which telemarketing calls can be made to consumers.

(b) Email marketing

Like many other countries, Brazil has laws regulating email marketing. Marketing emails must include an option for recipients to opt out or unsubscribe.

(c) Direct mailings

Direct marketing mailing is subject to regulations, including the need to obtain consent from recipients.

(d) Opt-out marketing

Like many other countries, Brazil has laws regulating email marketing. Marketing emails must include an option for recipients to opt out or unsubscribe.

7 Indirect marketing

7.1 What rules and requirements apply to the following types of marketing in your jurisdiction, and what best practices should be considered in each case? (a) Product placement; (b) Sponsorship; and (c) Loyalty programmes.

(a) Product placement

All advertising content should be identified as such, so product placement must be clearly and conspicuously recognisable by consumers as such. Product placement directed at children is tightly regulated by the National Council for Advertising Self-Regulation, which prohibits product placement in content specifically created, produced or programmed for children, regardless of medium.

(b) Sponsorship

No general regulations apply to sponsorship but specific rules should be observed, such as applicable industry advertising regulations (eg, for alcoholic beverage). The General Sports Law (14,597/2023), which was recently passed, criminalises the practice of ambush marketing – whether by association or intrusion. Prior to the enactment of the law, no specific legal provisions defined or regulated 'ambush marketing'; instead, sports organisations tackled such practices under the unfair competition provisions of the Industrial Property Law. The express classification of the practice as a crime has established a more robust scope of protection for the commercial rights of sports entities, event organisers and sponsors

(c) Loyalty programmes

No specific regulations apply to loyalty programmes. However, advertisers should consider the requirements of the Consumer Protection Code, which prohibits deceptive advertising – that is, advertising that conveys or omits information – whether wholly or partially false – that would be capable of misleading consumers as to the nature, characteristics, quality, quantity, properties, origin, price or any other information about the products or services.

8 Industry-specific regimes

8.1 What regulatory regimes apply to advertising in the following industries in your jurisdiction, and what best practices would you highlight? (a) Gambling (including lotteries); (b) Alcohol; (c) Tobacco; (d) E-cigarettes; (e) Pharmaceuticals (prescription and over-the-counter); (f) Therapeutic products (ie, products which claim to have health benefits but which are not medicines or pharmaceuticals, such as vitamin supplements); (g) Food; and (h) Financial products and services.

(a) Gambling (including lotteries)

Sports betting was recently legalised in Brazil (13.756/18). The latest regulations require the inclusion in ads of clauses that:

• warn about the harmful effects of gambling; and
• display the message "Gamble responsibly" or another message that promotes social responsibility among the general public.

Additionally, the following are prohibited:

• the broadcasting of gambling advertising in schools and universities;
• the presentation of betting as a socially attractive activity;
• the use of celebrities and influencers, suggesting that gambling contributes to personal and/or social success or improves financial conditions;
• the use of sexual messages or objectification of physical attributes;
• offences to cultural and/or traditional beliefs; and
• the involvement of children/adolescents or the direction of gambling advertising towards them.

Gambling ads must also include age restriction warnings, such as "18+" or "Prohibited for individuals under 18 years old".

Lotteries are exclusively operated by state-controlled agencies.

(b) Alcohol

A number of laws – such as Laws 2.018/96, 9.294/96 and 10.167/2000 – as well as regulations and agency norms impose restrictions on the advertising of alcohol products, such as:

• time limitations for the broadcasting of television and radio ads; and
• limitations on brand exposure at sporting events.

At the National Council for Advertising Self-Regulation (CONAR) level, the Code of Self-Regulation for Advertising (CBAP) dedicates specific sections to advertising intended for the promotion of:

• alcoholic beverages in general (Appendix A);
• various types of alcohol, such as beers and wines (Appendix P); and
• ices and similar beverages (Appendix T).

The code reflects the spirit of the applicable laws and regulations.

(c) Tobacco

The CBAP establishes specific rules on the advertising of tobacco products (Appendix J). A number of laws and regulations (most notably Law 10.167/2000) also outline a series of restrictions regarding the use and advertising of these products.

(d) E-cigarettes

The sale of e-cigarettes is expressly prohibited in Brazil as per Resolution RDC 46/09 of the National Agency of Sanitary Vigilance (ANVISA). Accordingly, the promotion and advertising of such products are prohibited.

(e) Pharmaceuticals (prescription and over-the-counter)

The advertising of prescription drugs is highly regulated in Brazil. Unlike in many other markets, the advertising of such products to the general public is not allowed. Over-the-counter pharmaceuticals may be advertised under the terms of ANVISA Resolution RDC 96/2008. Specific rules in the CBAP (Appendix I) also apply to such products.

(f) Therapeutic products (ie, products which claim to have health benefits but which are not medicines or pharmaceuticals, such as vitamin supplements)

ANVISA has a specific regulatory framework for food supplements, herbal medicines and homeopathic medicines:

• The main applicable regulation is RDC 26/2014;
• Ordinance 32/1998 defines and classifies food supplements; and
• RDC 24/2011 regulates the registration of such products.

Specific rules on such products are also set out in Appendix I of the CBAP.

(g) Food

ANVISA Resolution 24/2010 regulates the offering, advertising, marketing and other related practices aimed at the commercial promotion of:

• food products considered to have high quantities of sugar, saturated fat, trans fats or sodium; and
• beverages with low nutritional content.

Additionally, the CBAP establishes specific rules (Annex H) for the advertising of food, soft drinks, juices, chocolate drinks and non-carbonated drinks.

(h) Financial products and services

Within the Brazilian financial sector regulatory framework, four regulators establish specific segment rules for advertising:

• the Securities and Exchange Commission (securities);
• the Central Bank (financial institutions);
• the Superintendence of Private Insurance; and
• the Superintendence of Pension Funds (pensions).

Additionally, the CBAP establishes specific rules on the advertising of finance and investment services (Annex E), emphasising the importance of safeguarding investor confidentiality and delivering transparent information. These include explicit details on the methodologies employed in creating projections and estimates, with the aim of facilitating informed decision-making by clients.

9 Enforcement

9.1 On what grounds can the following parties take action against ads in your jurisdiction? (a) Competitors; (b) Consumer associations; and (c) Members of the public.

(a) Competitors

Court claims are primarily grounded on unfair competition practices. However, the National Council for Advertising Self-Regulation's (CONAR) Code of Self-Regulation for Advertising (CBAP) sets out a number of other specific rules on which competitors may ground a challenge, such as those on advertising to children.

(b) Consumer associations

Court claims are primarily grounded on misleading and fraudulent advertising. CONAR frequently reviews complaints brought by consumer associations against specific campaigns and its decisions often serve as the basis for future court claims brought by these associations.

(c) Members of the public

Court claims are primarily grounded on misleading and fraudulent advertising. CONAR frequently reviews complaints brought by consumer associations against specific campaigns and its decisions often serve as the basis for future court claims brought by these associations.

9.2 What mechanisms are available to them to do so, and what are the pros and cons of each?

In the context of CONAR, it is possible to file a representation against potentially infringing advertising. While proceedings before CONAR are faster and less costly, its decisions are not legally binding and may thus be reviewed by a court of law.

Legal proceedings may be initiated by competitors against infringing advertising and punitive damages are available. While a court decision may be final on the merits and may legally impose a financial burden on the advertiser, the duration of the proceedings may affect the effectiveness of these measures. Associated costs are a further consideration.

9.3 How does the procedure typically unfold and how long does it take?

In the context of CONAR, a representation may be filed by consumers or competitors and a first-instance decision is usually published within three months. Court proceedings may take a number of years, depending on the need for an expert opinion and/or an appellate review.

9.4 What costs are incurred?

In the context of CONAR, consumer complaints can be submitted without any associated costs being payable. However, legal entities must be members of CONAR before they can file a complaint and membership and filing fees apply.

Court proceedings may be initiated by consumer protection associations through class actions and in such cases no costs, expert fees or other expenses are incurred. Further, a consumer protection association cannot be compelled to pay attorneys' fees or procedural expenses unless bad faith is proven, as outlined in the Consumer Protection Code (Article 87). Costs relating to court proceedings initiated by legal entities, such as competitors, may vary based on the need for an expert opinion and/or an appellate review.

9.5 What defences are typically raised by the advertiser?

Typically, advertisers will seek to demonstrate that:

• the ad is compliant with the Consumer Protection Code and other applicable laws (eg, specific industry regulations); and
• consumers were not misled by the message.

To demonstrate adequate substantiation, the use of disclaimers and consumer perception surveys is usually considered by the courts and CONAR.

9.6 What remedies are available?

While CONAR does not have the power to impose fines, regulators may impose administrative penalties to the extent of any direct or implied damages to consumers. Judicial remedies are also available in case of direct or collective damages to consumers.

9.7 Can the decision be appealed? If so, what is the process for doing so?

An advertiser may appeal a first-instance decision of CONAR within 10 days of receiving service of the decision. Administrative decisions of PROCON may be:

• reviewed by its appeal board (appeals have suspensive effect on first-instance decisions); and
• challenged before a competent court.

10 Trends and predictions

10.1 How would you describe the current advertising landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

New legislative initiatives are ongoing in relation to issues such as:

• food marketing;
• advertising targeted at children; and
• more recently, the use of artificial intelligence, including in relation to advertising and marketing to consumers.

The sports betting industry has also seen significant developments in recent months following the enactment of Finance Ministry Ordinance 1,300/2023, a significant regulatory milestone which establishes:

• the general framework for national and international companies seeking to operate in the Brazilian sports betting market; and
• rules for advertising and marketing initiatives aimed at promoting these services.

11 Tips and traps

11.1 What are your top tips for companies that advertise their products and services in your jurisdiction and what potential sticking points would you highlight?

Advertisers should carefully consider the principles and requirements established by the National Council for Advertising Self-Regulation (CONAR), which is largely respected as the authority that enforces the advertising law in Brazil. In relation to green and sustainability claims, consumer protection agencies, authorities, watchdogs and CONAR are monitoring the use of these claims to prevent greenwashing in the market.

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.