Young consumers – Brazil

Young consumers – Brazil

Article Type: Legal briefing From: Young Consumers, Volume 16, Issue 1

Brazilian legislation pays special attention to children and teenagers in a great range of issues in view of their vulnerability, naivety and lack of experience. Provisions regulating advertising to children and teenagers in Brazil are found mainly in the Brazilian Federal Constitution, the Brazilian Consumer Defense Code (CDC), the Children and Teenagers Statute (CTS) and in specific rules and regulation, such as those issued by the Brazilian Advertising Self-Regulation Council (CONAR), Brazilian Ministry of Human Rights’ Council of Rights of Children and Teenagers (CONANDA)’s Resolution number 163 and the International Code of Advertising Practices.

This article discusses the rules applicable to advertising to children, as well as those applicable to advertising with the participation of children, whether or not relating to products aimed at their peers.

The Brazilian Federal Constitution (BFC) provides that it is a duty of the family, society and the state to ensure that children and teenagers have, with absolute priority, the right to life, health, nourishment, education, leisure, professional training, culture, dignity, respect, freedom and family and community life, as well as to guard them from all forms of neglect, discrimination, exploitation, violence, cruelty and oppression. Therefore, although the BFC guarantees freedom of speech, thought, creation and expression, Brazilian legislation requires some restrictions to advertising to, and with the participation of, children and teenagers, so that the Constitutional requirements discussed above are duly met.

General principles for advertising in Brazil

In the 1980s, a few Brazilian associations, such as advertising agencies, newspapers, magazines, radio and television stations, created the Brazilian Advertising Self-Regulation Council (“CONAR”) and, following national and international standards, established a series of rules on advertising in Brazil. CONAR is a private organization whose Brazilian Advertising Self-Regulation Code and other rules and recommendations are taken seriously and are strictly followed by the media in general.

CONAR determines, among other things, that every advertisement should obey Brazilian legislation and be honest and truthful. It also sets out other general advertising guidelines on product safety, ethical behaviour, comparative advertising and advertising addressed to children and teenagers.

In 1990, when the Brazilian CDC was enacted, the rules on advertising shifted from a system that was almost entirely self-regulated by the CONAR rules and others, to one subject to increasing control by the legislators and the Judiciary system.

Despite that change, CONAR still plays a meaningful role and its rules and recommendations constitute an important source of orientation for advertising companies and the media. In fact, a mere investigation by CONAR on whether a certain advertisement is abusive frequently is considered enough to have it withdrawn by the advertiser, even when a final decision is still pending.

The CDC has established various principles that apply to advertising, including advertising to children. The CDC prohibits simulated, misleading and abusive advertising. Misleading advertising is any mode of advertising or communication that is totally or partially false, including by omission, or is capable of misleading the consumer with respect to the nature, characteristics, quality, quantity, properties, origin, price and any other information about the product or service. Advertising is also considered misleading by omission when it fails to inform essential data about the product.

Abusive advertising is, among other things, that which in any way discriminates, incites violence, exploits people’s fears or superstitions, takes advantage of the deficiency of judgment and inexperience of children, or is capable of encouraging the consumer to behave in a way that is detrimental or dangerous to his/her health and safety.

The CDC also condemns the practice of product-placement, popularly considered as the insertion of implicit advertising of products or services in the media without focusing exclusively on the trademark of the product.

Another innovation brought by the CDC is that, in case of disputes, the supplier has the burden of proving that the information provided in an advertisement is truthful and accurate.

Advertisements addressed to children

The CDC condemns, as seen above, any form of misleading and abusive advertising. Certain categories of consumers are deemed to be more vulnerable than the average person. This includes poorly educated consumers, children and the elderly, those with a fragile health condition, as well as those whose social condition may impair their ability to evaluate adequately the product or service they are acquiring. Because of the evident vulnerability of children and teenagers, Brazilian rules and regulations treat advertising addressed to this group with special care. Any advertisement directed to these consumers, have an enormous damage potential.

With regards to children, the ideal form of advertising should not take advantage of their deficiency of judgment and experience. Also, advertising should not induce children to behave in an unconventional manner or in any way that may be harmful to their safety and health.

CONAR, in turn, dedicates an entire section of the Brazilian Advertising Self-Regulation Code to children and teenagers. CONAR establishes that advertising addressed to children and teenagers should:

• consider their psychological characteristics;

• respect their naivety and beliefs as well as their inexperience and loyalty;

• not offend them morally;

• not imply that they are inferior to other children and teenagers in case the advertised product is not bought. In Case no. 304/11, CONAR determined the suspension of a sandals advertisement, which claimed that all princesses use them. Therefore, the advertisement could cause girls that do not have the sandals in reference to feel inferior; and

• not stimulate them to embarrass their parents or third parties to buy the advertised product. In Case No. 256/14, CONAR determined the suspension of advertisement that incited children to misbehave to convince their parents to subscribe to a certain cable TV service.

The CTS provides more rules protecting the rights of children and teenagers. Among other measures, the CTS determines that magazines containing material that is inappropriate to children and teenagers should be sold in sealed packages and have written warnings about their contents.

Advertising addressed to children – CONANDA regulation

On April 4, 2014, the Brazilian Ministry of Human Rights’ Council of Rights of Children and Teenagers (CONANDA) issued the controversial Resolution no. 163, which provides that any marketing communication, including advertising, to children under 12 years old is abusive.

Given that the CDC prohibits abusive advertising, the main objective of the Resolution no. 163 is to prohibit marketing directed to children.

According to Resolution no. 163, a marketing communication is any activity intended to publicize products, services and/or brands, such as – but not limited to – banners, television or radio advertising, printed advertising, Internet pages, promotions, merchandising, shows or presentations.

Section 2 of the Resolution lists the characteristics of an abusive marketing communication:

• use of children’s language, special effects and excessive color;

• use of children’s songs or songs sung by children;

• performance by children, celebrities, animations or characters which appeal to children;

• promotional activities;

• distribution of souvenirs; and

• games or competitions.

It is important to note that this is not an exhaustive list, and regardless of the use of these features in marketing communications aimed at children, the objective of the Resolution is to prohibit advertising to children in a broad sense.

The Resolution no. 163 considers marketing communications at schools or on uniforms or school materials to likewise be abusive.

The only exception authorized by the Resolution no. 163 relates to campaigns with no marketing strategy, aimed at educating children about good nutrition, safety, education, health and other aspects of children’s social development.

There is no sanction stated on Resolution no. 163. Therefore, the criminal and administrative penalties stated in the CDC will apply.

Notwithstanding the above, the advertising market is strongly opposing the terms of Resolution no. 163 and its enforceability, as the Resolution does not have force of law. In practical terms, Resolution no. 163 is until now being disregarded by the majority of the players involved in children advertising.

Advertising with the participation of children

It is a common advertising strategy to use children to gain the attention of other children of the same age. In this regard, the participation of children in advertising should be allowed upon authorization of the parents, with a few restrictions. Therefore, public authorities do not interfere in the participation of children and adolescents, unless in cases where the child does not have a family structure to protect their interests or where specific requirements are infringed.

Advertising in which children participate should not directly encourage other children to buy a product or service, should not impel a child to persuade her parents or any other adults to buy a product or service, nor should it exploit the child’s trust in her parents, teachers, etc. Also, children who act and participate in commercial advertising should behave typically as children of the same age.

CONAR provides that any advertising that involves the presence of children and teenagers must have safety as a priority, followed by a concern with good manners. For example, in Case no. 329/13, CONAR determined the alteration of a bug spray advertisement that, to demonstrate the safety of the product, compared it to a child trying to touch a power socket and such power socket being closed just before the child reached. CONAR understood that children could try to imitate the boy in the film and put themselves in a risky situation.

Tobacco, alcoholic beverages, pesticides, medicine and guns

The BFC provides that commercial advertising of tobacco, alcoholic beverages, pesticides, medicines and therapies shall be subject to legal restrictions and contain, whenever necessary, a warning concerning the damages associated with their use.

Law 9294/96, which regulated the above Constitutional provision expressly prohibits the participation of children and teenagers in advertising of tobacco.

The CONAR rules also determine that advertisements for these products should not be addressed to children or teenagers and that no one who appears smoking in an advertisement should be or look like they are under legal age.

Likewise, advertising of alcoholic beverages should not be addressed to children or teenagers and no one who appears drinking in an advertisement should be or look like they are under legal age.

With regard to medicines that do not demand prescription, advertising should not induce children to use it without the supervision of their parents (advertising of prescription medicine is only allowed in the media directed to health professionals and is subject to several restrictions).

The participation of children and teenagers in advertising of pesticides and guns is strictly prohibited. The actors or actresses that participate in this type of advertising should not be or look like they are under legal age.

There are also restrictions as to the hours of the day during which advertising of these products is allowed.

Finally, magazines, programs and publications directed toward children and teenagers should not contain illustrations, photographs, legends, texts or advertising related to alcoholic beverages, tobacco, guns and ammunition. As to tobacco and alcoholic beverages, advertising is also prohibited on Web sites directed at minors.

Conclusion

When advertising to children in Brazil, one should take into account the general principles and rules provided for by the BFC, the CDC and CONAR, as well specific rules protecting children, such as the CTS. Specifically when advertising to children in Brazil, among other things, one can:

• use children and teenagers in an advertisement, provided that the requirements and limitations discussed above are duly met, except as regards tobacco, alcoholic beverages, pesticides and guns.

They cannot:

• discriminate, incite violence, exploit fear or superstition, take advantage of the deficiency of judgment and inexperience of children and teenagers or encourage them to behave in a way that is detrimental or dangerous to their health, education and safety;

• morally offend children;

• imply that the child is inferior to other children and teenagers in case the advertised product is not bought;

• prompt the child to embarrass their parents or third parties into buying the advertised product; and

• address advertising of tobacco, alcoholic beverages, medicine, pesticides, guns and ammunition to children and teenagers.

This article is published in conjunction with the Global Advertising Lawyers Alliance (http://www.galamarketlaw.com). GALA is an alliance of lawyers located throughout the world specializing in advertising law.

João Carlos Arieira Harres, Valdir Rocha and Rosângela Delgado - all based at Veirano Advogados, Rio de Janeiro, Brazil.

References

Brazilian Advertising Self-Regulation Council (CONAR), available at: http://www.conar.org.br

Brazilian Federal Constitution, available at: http://www.senado.gov.br/bdtextual/const88/const88.htm

Children and Teenagers Statute, available at: http://www.planalto.gov.br/ccivil_03/Leis/L8069.htm

Consumer Defense Code, available at: http://www.mj.gov.br/dpdc/cdc.htm

Corresponding author

João Carlos Arieira Harres can be contacted at: mailto:joao.harres@veirano.com.br