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Getting the Deal Through: Advertising & Marketing

Brazil
Legislation and regulation
 
1 What are the principal statutes regulating advertising generally?
 
The legal basis for the provision of advertisement regulation is set forth by the 1988 Brazilian Constitution, which determines that the law will provide for special rules on the advertising of products and servicesthat may offer health and environmental risks, such as tobacco, alcohol
and medicines (section 220, paragraph 3, II and paragraph 4). The general rule of the 1988 Constitution, which came as a result of the re-democratisation process after the military regime, is freedom of speech, so any regulations or restrictions to the contrary are of exceptional
character and must be interpreted accordingly. Only the Federal Union can legislate on advertising in abstract (section 22, XXIX of the Constitution), thus any state law to the contrary
is unconstitutional and void. Recently, a municipal act of a city in the state of Goias was declared unconstitutional by the Goias State Court of Appeals on this ground. The said statute intended to compel breweries to insert images of car accidents on beer labels. Nevertheless,
state and municipal authorities can enforce the federal legislation (Consumer Protection Code, section 55, paragraph 1). Major statutes regarding the regulation of advertising are
the Consumer Protection Code (Law No. 8,078/ 90), the Civil Code (Law No. 10,406/02), the Promotional Contests Act (Law No. 5,768/71), the Advertiser Profession Act (Law No. 4,680/65)
and the Intellectual Property Acts (Laws Nos. 9,279/96 and 9,610/98).
 
2 Which bodies are primarily responsible for issuing advertising regulations and enforcing rules on advertising? How is the issue of concurrent jurisdiction among regulators with responsibility for advertising handled?
 
Advertising regulation is carried out, above ail, by the National Council of Advertisement Self Regulation (CONAR), a non-governmental entity to which nearly all the market players have subscribed and whose rules they follow. Also, on behalf of consumer protection, each Brazilian state may establish its own consumer defence authority, which will be entitled to watch for deceptive or abusive advertising. Federal government secretaries and ministries may also issue
resolutions on advertisement, as done in 2014 by the National Council on Children and Teenagers' Rights (CONANDA), which provoked an enduring debate on advertising to children (see question 30). Finally, some sectors of the economy have their own specific regulatory
agencies, which may dispose advertising rules. In the case of the tobacco and the pharmaceutical industries, for instance, it is the National Agency of Sanitary Vigilance that enforces the law, and it may issue complementary rules and understandings of the law. Frequently, the tobacco industry defies these regulations in courts.
 
3 What powers do the regulators have?
 
There is no control prior to publication or divulgation; there is no censorship in Brazil. Regulators can suspend a commercial and order the infringer to publish a new one, with the scope of clarifying to consumers any misleading information from the previous one (Consumer
Code, section 6o). They may also fine the infringer, but such fines may always he suhject to judicial review before the courts oflaw.
 
4 What are the current major concerns of regulators?
 
There are frequent and long-lasting debates on themes such as advertising targeted at children and limitations on the tobacco industry.
 
5 Give brief details of any issued industry codes of practice. What are the consequences for non -compliance?
 
The Advertiser Profession Act expressly commands the application of the Advertisement Professionals Ethic Code (section 17), which was compiled in 1957 during the first Brazilian Advertisement Congress. In addition, CONAR has a traditional self-regulation code, first
issued in 1978, which is widely applied by the industry. Non-compliance may subject the infringers to administrative procedures, both by CONAR or by consumer authorities, which will set a penalty as to the extension of any direct or implied damages and the violation background. Judicial remedies may also be sought, either directly or to challenge an administrative decision.
 
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