Advertising & Marketing 2022

Last Updated August 02, 2022

Brazil

Law and Practice

Authors



Inglez, Werneck, Ramos, Cury e Françolin Advogados (IWRCF) is a full-service law firm with the necessary resources to serve clients in complex projects and cases, which require professionals with business vision, broad experience and multidisciplinary expertise. At the same time, the firm offers a boutique-style service in order to guarantee personal relationships with clients and high-quality outcomes. IWRCF’s Marketing and Advertising practice assists clients in several matters involving advertisement and marketing in Brazil, including supporting the relationship between agencies and advertisers, with the drafting and negotiation of the relevant contracts; advisory and preventive support in general marketing actions (print and digital media, TV and radio); review of advertisement materials, according to applicable laws and regulations; support in the development of loyalties programmes; defence of clients’ interests before the National Advertising Self-Regulation Council (CONAR) and other competent bodies; review of aspects of comparative advertisements, children’s advertisements, merchandising, brand use and other forms of advertising modalities; support in the development and carrying out of commercial campaigns and sweepstakes (SEAE and SUSEP); offering training and workshops for employees; and providing legal opinions on legal marketing matters.

The principal statutes regulating advertising in Brazil are:

  • the Brazilian Federal Constitution;
  • the Consumer Defence Code (CDC) (Federal Law No 8,078/90);
  • the Statute of the Child and Adolescents (ECA) (Federal Law No 8,069/90);
  • Federal Law No 14,181/21, which amends the CDC and the Elderly Statute, to improve the discipline of consumer credit and provide for the prevention and treatment of over-indebtedness;
  • Federal Law No 5,768/71 and Decree No 70,951/1972, which regulate commercial promotions and sweepstakes;
  • Federal Law No 10,826/03 and its Decrees No 9,845/19 and No 9,847/19, which regulate firearms;
  • Federal Law No 9,294/1996, which regulates medicine, tobacco, pesticides and alcoholic beverage advertising;
  • Federal Law No 11,265/2006 and Decree No 9,579/2018, which both set forth the rules concerning advertising for childcare products (ie pacifiers and bottles);
  • Federal Law No 13,874 /2019 (the “Economic Freedom Act”), which reinforces the constitutional guarantees of free initiative and freedom of commercial expression, and aims to prevent the abuse of advertising restrictions in any economic sector;
  • the Brazilian Advertising Self-Regulation Code (CBAP) of the National Advertising Self-Regulation Council (CONAR);
  • Federal Law No 12,842/13, which provides for the practice of medicine, the Code of Ethics (CFM Resolution No 2,145/2016) and regulations;
  • Resolution RCD No 96/08 of the National Health Surveillance Agency (ANVISA), which establishes guidelines for advertising, publicity, information and other practices related to the commercial dissemination or promotion of medicines;
  • Resolution RDC No 429/2020 and Normative Instruction (IN) No 75/2020, which regulates the new standard on nutritional labelling of packaged foods;
  • Federal Law No 11,265/06, which regulates the marketing of food for young children and also related childcare products;
  • the Ministry of Agriculture, Livestock and Supply (MAPA), which regulates specific regulatory rules for label claims; and
  • Copyright Law No 9,610/98, which amends, updates and consolidates copyright legislation.

The bodies responsible for issuing advertising regulations in Brazil are CONAR and the government itself, represented by the House of Representatives and the Senate, besides federal, state or local administrative bodies.

CONAR is a self-regulatory agency formed by the associations that represent advertisers, broadcasters, advertising agencies and other sectors that participate in advertising. As CONAR is a self-regulatory body, it has a limited authority and must base its decisions only on its Code.

Some administrative consumer protection agencies, as well as the public prosecutor, also have the authority to enforce advertising rules through administrative or judicial procedures.

The judiciary is the ultimate body responsible for enforcing advertising rules. Although the other bodies have the authority to enforce these rules, the judiciary has a broader authority, and can, therefore, review the other bodies’ decisions and apply penalties such as fines and injunctions.

By law in Brazil, companies are responsible for the actions of their owners, shareholders, directors, managers and agents (“representatives”). However, in the event of an abuse of power or misuse of purpose, the administrators themselves may also be held liable for the damages caused by their actions or decisions.

That said, with regard to liability for advertising content, the CDC establishes that the burden of proof regarding the veracity and correctness of advertising rests with those who sponsor it. CONAR, on the other hand, establishes that the liability for advertising rests with the advertiser, the agency and the vehicle (in the final case with reservations, depending on the circumstances).

There is a current doctrine under which the advertiser is solely liable for the damage caused by advertising. A second doctrine provides that agencies and broadcasters/platforms can also be held liable in the case of misconduct or fault. There is also a minority viewpoint that contends that actors/influencers should also be held responsible.

As a rule, the Superior Tribunal of Justice (STJ) understands that the liability lies with the advertiser; however, there are specific precedents where the agency and even the broadcaster were also held liable by the STJ.

CONAR is a self-regulatory agency created by representatives of the private sector to regulate, monitor and decide on matters related to advertising.

To conduct its activities and to guide the market, CONAR published the Brazilian Advertising Self-Regulation Code (CBAP), which sets the rules and principles that should guide ethical advertising in Brazil.

The proceedings before CONAR may be filed based on consumers’ complaints, on a representation brought by a competitor (the company must be an associate member of CONAR) and by CONAR itself.

CONAR’s trial process is composed of three instances and its decisions are rendered in a short period of time, usually 60 days. The first instance is responsible for receiving and judging the case. The court of appeal is responsible for reviewing the decision of the first instance and, if the formal requirements are met, the third and final instance is responsible for solving any conflict of understanding of the second-instance judges or errors contained in the decision.

It is worth mentioning that similarly to judicial procedures, CONAR may grant injunctions to suspend advertising. Notwithstanding this, they are not commonly granted.

Since CONAR is a self-regulatory body, it does not have the authority to impose fines or determine the payment of any indemnifications. The penalties available to CONAR are:

  • a warning to the advertiser and its agency, or to an influencer or celebrity who was hired for advertising/marketing purposes;
  • a recommendation to modify or correct the advertisement;
  • a recommendation to broadcasters to suspend the displaying of the advertisement; and/or
  • a public notice to the broadcasters announcing CONAR’s position regarding the non-compliance with the steps and measures determined by it.

Advertising practices can be challenged by any consumer before the judiciary or CONAR.

If the consumer is interested in repairing the damage caused by the misleading or abusive advertising, the claim must be filed with the judiciary. In cases where the consumer only has an interest in suspending the advertising (not having damages repaired), they can file a simple complaint on the CONAR portal. If CONAR believes that the claim has merit, an investigation will be initiated to examine the irregularity of the advertising questioned by the consumer.

Consumer Protection Bodies

Besides consumers (the general public), advertising can be challenged by consumer defence bodies (eg, the Public Attorney’s Office, PROCON, SENACON and CONAR) on behalf of society or individual consumers.

The relevant legal and regulatory trends and cases in Brazilian advertising and marketing in the past 12 months are as set out below.

According to the statistics published annually on the CONAR website, in 2021, most of the complaints filed were related to “Alcoholic Beverages” (16.8%) and “Drugs, Cosmetics and Health, other Products and Services” (16.1%).

CONAR also disclosed that 50.4% of the complaints made by consumers were due to non-compliance of the advertisements with the obligation of “True Presentation”, while 22.8% were due to failure to comply with the obligation of “Advertising Identification”.

Discussions related to advertising of products and services aimed at children and adolescents are frequent; recently, the Bahia State Prosecutor’s Office (MP-BA) initiated an inquiry into nine companies to investigate possible illegal advertising aimed at children on YouTube. According to the inquiry, it was verified that these advertisers violated children’s rights and the national legislation, by strategically and systematically targeting marketing messages directly to children.

Another topic in vogue is the advertising and sponsorship of betting sites. Recently, a law was enacted authorising sport’s betting in Brazil. Since such law is still pending regulation, there is a recurring discussion about the legality of advertising promoted by the betting websites.

CONAR has published a Technical Note in order to regulate advertising of products and services that make reference to the COVID-19 pandemic. The Technical Note was aimed at advertising of pharmaceutical products, food supplements and cleaning products.

Due to the uncertainties related to COVID-19, in summary, the Technical Note recommended companies in the pharmaceutical and food supplement segment not use claims of cure, treatment or prevention until scientifically validated procedures for such claims had been presented by the authorities.

For cleaning products, the Technical Note establishes that all claims must have technical proof and be aligned with the indications and warnings recommended by the health authorities.

CONAR and the consumer protection bodies (see 1.5 Private Right of Action) were quite diligent in combating abusive or misleading advertising that exploited the COVID-19 pandemic, in particular advertisements that exploited the fragility or lack of knowledge of consumers.

Abusive and misleading advertising are regulated by the Consumer Defence Code.

Abuse advertising is that which:

  • has a discriminatory nature;
  • incites violence, explores fear or superstition;
  • takes advantage of a child’s lack of judgment or experience;
  • disrespects environmental values; or
  • may cause the consumer to behave in a way that will bring harm to their health or safety.

Misleading advertising is any information or public communication that, expressly or by omission, is entirely or partially false or is in any way capable of inducing the consumer to make a mistake regarding the nature, characteristics, quality, quantity, properties, origin, price or any other information about the advertised products and/or services.

Not all claims are subject to regulation or empirical evidence. As an example, the concept of puffery is recognised in Brazil: proof is not required for claims that are unquestionably absurd or cannot be proved or measured.

However, due to the considerable quantity of laws and regulations applicable to advertising in Brazil, claims must be always be analysed on a case-by-case basis, considering the whole context of the campaign in order to confirm whether empirical evidence is required.

Advertising claims can be substantiated as follows:

  • tests conducted by specialised companies or laboratories (ie lab tests and consumer perception tests);
  • performance surveys carried out by specialised companies (ie sales volume, points of sale, consumer preference, delivery speed, etc);
  • analyses and articles published by magazines, websites, newspapers or specialised media; and
  • public information published by competitors.

Tests performed directly by advertisers are valid. However, these tests are often questioned or disregarded by competitors and even by CONAR and judges.

With rare exceptions, there is no pre-established standard for performing tests that support advertisements.

Therefore, it is recommended that advertisers request an expert to confirm, in advance, the substantiation of its claims, as measured against best market practices.

There is no specific Brazilian Law that requires human clinical studies for certain types of advertising. Nevertheless, considering that by law every claim must be duly substantiated, in  cases where advertising promotes health benefits, the advertiser must have the necessary studies to prove the result highlighted in its campaign, which may involve testing human beings, depending on the case and the sector involved.

There are no laws or regulations that address stereotyping in advertising or inclusion, diversity and equity more generally in Brazil.

However, CONAR has been constantly tested in disputes that question the regularity of advertisements whose content promotes inclusion and diversity. CONAR’s decisions have been to support advertising that promotes inclusion and diversity, as long as the advertising content is not offensive or illegal.

A claim related to the environment should always respect the requirements and obligations provided by the law and regulations so as not to constitute a misleading or abusive advertisement.

On the other hand, according to the applicable regulation, claims regarding sustainability must respect some specific rules, such as, among others:

  • they must correspond to actual practices adopted by the advertiser;
  • the broadcast information must be true, verifiable and possible to corroborate;
  • the claim must be accurate and precise; and
  • the claim shall be provided with supporting data and an external source endorsement.

The use of words such as “free” and “free trial”, or other expressions with the same meaning, in marketing campaigns is permitted only when there is no actual cost to the consumer concerning the promised free product or service.

In campaigns involving the payment of expenses to be paid by the consumer, such as postal charges, freight, delivery charges, data consumption or taxes, it is necessary to specify to the consumer, in a prominent way, all the expenses involved, so that the consumer easily understands the scope and limitations of the announced benefit.

In addition, regarding special price or saving claims, it is important to highlight that it is very common in Brazil to sell products in instalments with or without interest. In these sorts of transactions, the advertiser must inform the consumers of the original price, the quantity of instalments and the final price. If applicable, it is also necessary to provide information regarding the interest, bank fees and expenses (total effective cost), as well as the “original” cost.

The Comparative advertising is regulated by CONAR (Article 32 of the CBAP) and the Intellectual Property Law.

There is an important debate regarding the right to use a competitor’s brand or products in comparative publicity, both protected by the Industrial Property Law.

The Supreme Court recently issued two important decisions in which the use of a competitor’s brand and products in comparative advertising, restricted to cases where the publicity brings relevant information to the consumer, was considered legal.

Such precedents allow companies to compare their products/services with their competitors’ products/services, even identifying the competitors’ brands.

Comparative advertising is accepted in Brazil provided its main objective is the dissemination of relevant information to the consumer.

Specific conditions must be met for advertising to be ethical and regular: among other requirements, it must be objective and supported by technical data. Subjective or emotional data are not valid to support comparative advertising. The comparison must be made between products that are comparable to each other, of similar value and from the same period of manufacture.

Advertising must also comply with the Intellectual Property Law, especially when it explores competitors’ products and brands, and it cannot denigrate the competitor’s brand or image.

A comparative advertisement can be challenged through both CONAR and the courts.

Disputes before CONAR are faster; however, it is not possible to seek indemnification through its procedure. The penalties applied by CONAR are warning, modification of publicity, suspension of publicity or the disclosure of a public notice announcing that the company does not respect the rules of ethics in advertising.

A lawsuit through the courts is more time-consuming and more costly. However, it also allows indemnification and/or recognition of the practice of unfair competition to be sought (Federal Law No 9279/96).

In both jurisdictions, it is possible to request an injunction for the immediate suspension of the advertising in question.

At the end of 2020, CONAR launched the Digital Influencer Advertising Guidelines, which consist in practical guidelines with best practices for digital influencers on social media.

The Guidelines contain instructions on how to apply the rules of the CBAP to commercial content on social media, in particular, content generated by users known as digital influencers or influencers or even reposts (for more information related to the Guidelines, see 5. Social Media Influencer Campaigns and Online Reviews).

Also, CONAR has issued a Technical Note establishing that influencers’ advertisements must indicate the use of filters in images. The following disclaimer must be inserted, if this is the case: “retouched photograph to modify the physical appearance of a person”.

By law, the content of any advertising binds the advertiser. Therefore, if the influencer makes an offer with an error – for example, with a price lower than the one actually available in practice – the advertiser will have to comply with the offer.

In this regard, one of the biggest challenges for advertisers is not only to instruct influencers to comply with the applicable law and CONAR’s guides and regulations but also to monitor and timely correct any misleading or abusive posts made by contracted influencers, including those made spontaneously (out of scope) during the broadcast of the contracted campaign.

If an advertiser’s platform is an open channel for dialogue with consumers, considering the constitutional right to freedom of expression, there are strong arguments to maintain that the advertiser is not responsible for third-party content.

However, the advertiser must monitor and exclude any illegal content or content that may constitute misleading or abusive information (these limits must be established in the terms and conditions of the platform).

If an advertiser’s platform is aimed at advertising its products or services, the third-party content posted there will be interpreted as advertising, making the advertiser liable for the content.

The disclosure requirements applied to advertising in traditional platforms also apply to all digital platforms.

If there are space limitations or constraints on the platform, a shortcut must be inserted to direct the consumer to the advertiser’s website, where all applicable disclosures must be duly included for the consumer’s consultation.

The use of social media must comply with the rules and laws in force in Brazil.

The main laws that have an impact on social networks are the Civil Rights Framework for the Internet (Federal Law No 12,965/2014), the General Personal Data Protection Law or LGPD (Federal Law No 13,709/2018), the Civil Code (Federal Law No 10,406/2002), the Penal Code (for crimes of libel, defamation and insult), and the Intellectual Property Law (Federal Law No 9,279/96).

Native advertising must comply with the CDC and CONAR’s rules. Both regulations establish that “publicity must be shown in a way that the consumer will easily and immediately identify it as such”.

Therefore, native advertising shall have a disclaimer or hashtag indicating that the content is publicity.

The CDC disciplines abusive and misleading advertising.

Therefore, any advertising that promotes abusive or misleading content may be classified as illegal and trigger one of the various penalties provided for by law, such as the imposition of large fines.

Also, there are bills of law in progress that aim to characterise certain conduct as producing fake news, imposing severe penalties on those who commit such a practice.

Following the best practices worldwide, CONAR has published Digital Influencer Advertising Guidelines in 2020.

After the release of the new rules, there was a significant increase in cases questioning influencers’ advertisements. Currently, the influencer has assimilated the rules and the main advertisers have adopted the necessary precautions to ensure compliance with the current rules.

In accordance with the Digital Influencer Advertising Guidelines published by CONAR, there is a difference between advertising by influencers and activated messages.

Advertising by influencer occurs when the following cumulative elements, which are necessary to characterise an advertisement, exist:

  • promotion of the product, service, cause, or other associated sign;
  • compensation or a commercial relationship, even if non-financial, with the advertiser and/or agency; and
  • the advertiser or agency’s interference in the content of the message (editorial control of the influencer’s post).

Activated messaging occurs when a user refers to a product, service, cause, or other associated characteristic because of a connection or non-compensatory benefit offered by the advertiser and/or agency, and without that advertiser’s or agency’s editorial control. For instance, appreciation posts, thanks for products/services (“gifted”/“received”), trips, accommodation, experiences or invitations.

In order to configure a correct and Guidelines-following digital influencer advertisement, and to respect the principle of transparency, it is fundamental to clarify the situation that applies in the relevant posts. The Guidelines set forth the expressions that are recommended (clear expression).

  • Influencer advertising: #advertising, #advertisement, #sponsored, #paid content and #paid partnership.
  • Activated messages: #gifted/#received (trip/show/event), invited by (brand), thanks to (brand) for (product, trip, invitation), #promotion, #promo (activations upon gifts or prize).

CONAR’s guide specifies, in Portuguese, the proper hashtag to be applied.

An advertiser may be held liable for the content posted by the influencer when there is a relationship between the parties (influencer and advertiser).

Regarding the duty to monitor, the advertiser does not have an obligation established in law or regulation. However, CONAR and consumer protection bodies have demanded that advertisers proactively inspect content published by contracted influencers and in cases of activated message.

Freedom of communication and expression without any censorship is a constitutional right guaranteed to all Brazilians.

However, if employees or contracted third parties post fake news on behalf of the company, the company may be held responsible for the irregular content published.

In this case, if it is proven that the employee or third party exceeded their competence or acted contrary to company policies, the company may seek compensation for the damage caused.

With regard to the laws and regulations applicable to advertising, it is legal to send marketing emails to promote a company’s products and services. The CDC, however, establishes general consumer protection rules that prohibit abusive marketing.

Furthermore, such activity shall comply with the Self-Regulatory Code for Email Marketing Practices (CAPEM).

It is worth emphasising that the advertiser must also comply with the LGPD, providing the proper channels and tools for the consumer to consult, change or even cancel the use of their personal data for advertising purposes.

Non-compliance with the applicable laws and regulations may lead to the application of substantial fines or indemnifications.

Regarding the laws and regulations applicable to advertising, it is legal to perform telemarketing to promote a company’s products and services.

It should be borne in mind, however, that the National Telecommunications Agency (ANATEL)’s Resolution No 632/2014 (General Regulation of Consumer Rights of Telecommunications Services) gives telephone, pay TV and internet services consumers the right not to receive advertising messages on their mobiles.

Furthermore, some Brazilian states have enacted local laws whereby the consumer protection bodies have implemented a platform to inform advertisers that a consumer has registered their telephone number to not receive marketing calls. Any call to promote a product or service to a registered consumer will lead to a fine.

Advertisers must also comply with the LGPD, providing the proper channels and tools for the consumer to consult, change or even cancel the use of their data for advertising purposes.

Non-compliance with the applicable laws and regulations may lead to the application of substantial fines or indemnifications, in addition to the other penalties provided for in the CDC.

Following the same line of reasoning that applies to telemarketing (see 6.2 Telemarketing), text messaging for marketing purposes is legal, but must comply with ANATEL’s Resolution No 632/2014 (General Regulation of Consumer Rights of Telecommunications Services), which requires the consumer’s previous consent.

The advertiser must also comply with the LGPD, providing the proper channels and tools for the consumer to consult, change or even cancel the use of their data for advertising purposes.

Non-compliance with the applicable laws and regulations may lead to the application of substantial fines or indemnifications, in addition to the other penalties provided for in the CDC.

As discussed throughout 6. Privacy and Advertising, it is legal for advertisers to send advertising material through different formats (principle of legitimate interest).

However, the right to send advertising is different from the right to process consumer data. In order to process data for advertising, it is necessary to obtain the consumer’s express consent, as a rule, through an opt-in on the advertiser’s platform or by opting into the cookie policies.

The advertiser must provide the appropriate channels and tools to consumers to consult, change or even cancel the use of their data for advertising purposes (LGPD requirements).

Failure to obtain express consent to process the consumer data or to comply with the other LGPD provisions may lead to substantial fines, in addition to the other penalties provided for in the CDC.

The CDC, the Child and Adolescent Statute (ECA) and CONAR have specific provisions for advertising products to children and adolescents.

The ECA establishes that children are considered to be persons under the age of 12, and an adolescent is a person between 12 and 18 years of age.

The LGPD has a specific chapter dealing with the treatment of data of children and adolescents. According to the law, data processing may be carried out with the consent of a parent or legal guardian.

Failure to comply with the laws applicable to children’s advertising or the LGPD may lead to significant fines and compensation, in addition to the other penalties provided for in the CDC.

At the end of 2018, Federal Law No 13,756/2018 was issued, granting exclusive powers to the Ministry of Finance (now known as the Ministry of Economy), specifically to the Brazilian Secretary of Economic Monitoring (SEAE, formerly known as SECAP) to analyse, authorise and supervise commercial promotions (ie, raffles or raffle-like contests, instant win contests and contest-like games), including philanthropic sweepstakes, which powers were previously shared with the Brazilian Central Bank (BACEN).

In terms of commercial promotions, it is mandatory to include the following legal text in all broadcast and non-broadcast advertising of such commercial promotions:

  • the term “promotional contest” with the title of the contest and the authorising entity (usually SEAE or the Superintendence of Private Insurance);
  • a certificate authorisation number; and
  • the promoter’s website address, if applicable.

In addition, sweepstakes authorised by SEAE can require or request the making of a purchase in order to participate, depending on the intended mechanism.

Under Federal Law No 5,768/71, Decree No 70,951/72, the Ordinance of the Ministry of Treasure No 41/2008 (which regulates the free distribution of prizes as advertising) and the Ordinance of the Ministry of Treasure No 422/2013 (which identifies which elements could qualify a promotion as a skill or game contest – without registration) there is a distinction between contests of skill and games of chance.

However, contests of skill – as well as solely cultural, artistic, sporting or recreational contests – are an exception by law and it is not necessary to obtain authorisation from SEAE for them, in accordance with the Ordinance of the Ministry of Treasure No 422/2013.

In this situation, the cultural contest must not promote the sponsor’s brand, goods or services in any way, and must fulfil 12 further requirements set forth in applicable regulation. For this reason, it is currently difficult to implement these kinds of contests and it is extremely important to analyse them on a case-by-case basis.

Finally, if a cultural contest does not meet the requirements established by law, it must be preceded by authorisation from SEAE and be converted into a sweepstake.

All sweepstakes that involve luck, raffles, instant wins with limited stock, contests, or similar operations must be authorised in advance by SEAE through its web portal.

Authorisation must be requested at least ten business days before the sweepstakes starts and the supervisory fee must be collected, according to the value of the promotion prizes.

After the appointed day for announcing the winner set forth in the sweepstakes terms and conditions, income tax (upon the total value of the prizes at a rate of 20%) must be collected.

Finally, the statement of account must be reported to SEAE, in accordance with the following terms:

  • delivery of prizes – 30 days after the appointed day for announcing the winner; or
  • non-delivery of prizes – 255 days after the appointed day for announcing the winner and, in such cases, it is necessary to hand over the value of the prizes to the Federal Union.

There is no specific law nor regulation applicable to loyalty programmes. This type of programme, however, does not need SEAE’s authorisation.

Regulation of free or reduced-price offers, such as “buy one, get one free”, are set forth in the Informative Note No 11/2018, which establishes that prior registration with SEAE is mandatory when there is a free distribution of prizes with product’s stock limitation or a fixed amount of prizes.

The CDC establishes that sending or delivering products or providing services to consumers, without prior request, is an abusive practice (Article 39, III, CDC).

Nevertheless, as long as this situation – automatic renewal – is contractually set forth between the parties and there is a possibility for the consumer to waive this obligation, it is allowed.

Gambling and betting activities are generally prohibited in Brazil, except for state-run lotteries and horse races. Likewise, games of chance are legally defined as a criminal offence in Brazil (eg, roulette, jackpot and bingo).

Poker, however, is considered to be a sport, not a game of chance, and is therefore legal.

The Federal government has enacted Decree-Law 13,756/2018, with the objective of legalising sports betting. The Decree is still awaiting regulation to establish the rights and obligations of companies that will explore this activity.

There is no specific regulation of the advertising and marketing of sports betting or gambling.

As mentioned in 8.1 Legality & General Regulatory Framework, the Federal government has enacted Decree-Law 13,756/2018, with the objective of legalising sports betting. The Decree is still awaiting regulation to establish the rights and obligations of companies that will explore this activity.

There is no specific regulation of the advertising and marketing of cryptocurrency or NFTs in Brazil.

Advertisers must comply with general advertising laws and Securities and Exchange Commission regulations, if applicable.

There is no law or regulation applied to the metaverse in Brazil yet.

So far, the authorities and CONAR have interpreted the metaverse as a new communication channel, demanding that all advertisements promoted in this new environment respect the laws and regulations applicable to advertising in force in Brazil.

There is not yet any applicable law to account for the rise of digital advertising platforms and the use of adtech.

Advertisers must comply with general advertising laws and Federal Law No 12,965/14, which establishes principles, guarantees, rights and duties for the use of the internet in Brazil.

There are many laws applied to the advertisements of regulated products. Federal Law No 9,294/96 refers to the advertising of medicine, tobacco, therapies, pesticides and alcoholic beverages. This law establishes how the advertising of these products should be done, including the use of warnings and restrictions on locations and events where they may be displayed, besides establishing specific penalties.

CONAR also has special regulations for regulated products, such as: alcoholic beverages; food and beverages; physicians, veterinarians, masseuse, nurses’ activities; medicine; and others.

There are also several resolutions issued by ANVISA to regulate advertising, publicity, information and other practices whose objective is the commercial dissemination or promotion of medicines; advertisements and communication related to lactose, gluten and dietary supplements; and the labelling of products, among others.

CONAR also has special regulations for different category of products, such as, Education, Courses, Teaching; Employment and Opportunities; Real Property: Sale and Lease; Investments, Loans and Securities Market; Stores and Sales Retail; Independent Workers; Tourism, Trips, Tours, Hotels; Automotive Vehicles, among others.

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Trends and Developments


Authors



Inglez, Werneck, Ramos, Cury e Françolin Advogados (IWRCF) is a full-service law firm with the necessary resources to serve clients in complex projects and cases, which require professionals with business vision, broad experience and multidisciplinary expertise. At the same time, the firm offers a boutique-style service in order to guarantee personal relationships with clients and high-quality outcomes. IWRCF’s Marketing and Advertising practice assists clients in several matters involving advertisement and marketing in Brazil, including supporting the relationship between agencies and advertisers, with the drafting and negotiation of the relevant contracts; advisory and preventive support in general marketing actions (print and digital media, TV and radio); review of advertisement materials, according to applicable laws and regulations; support in the development of loyalties programmes; defence of clients’ interests before the National Advertising Self-Regulation Council (CONAR) and other competent bodies; review of aspects of comparative advertisements, children’s advertisements, merchandising, brand use and other forms of advertising modalities; support in the development and carrying out of commercial campaigns (SEAE and SUSEP); offering training and workshops for employees; and providing legal opinions on legal marketing matters.

Children and Teenagers on Social Networks – What Are the Best Practices?

When it comes to protecting minors, Brazil is not a lawless land. Quite the opposite. Following the most modern trends in large markets, in addition to important provisions of the Federal Constitution and the Consumer Defence Code, Brazil has a highly evolved self-regulatory system for regulating children’s advertising, the National Council for Advertising Self-regulation (CONAR).

There is also the Statute of the Child and Adolescents (ECA), which very properly regulates the full protection of children and teenagers, establishing the fundamental rights inherent to the human person.

The ECA has as its principle the full protection or the absolute priority of the child (person under the age of 12) and of the adolescent (person between 12 and 18 years of age), recognising them as subjects with rights and duties.

The ECA recognises that it is the “duty of the family, the community, the society in general, and the government to ensure, with absolute priority, the enforcement of the rights to life, to health, to food, to education, to sports, to leisure, to professionalisation, to culture, to dignity, to respect, to freedom, and to family and community life...” (Santos, Elaine Araque dos. A naturalização do trabalho infantil. Revista TST, Brasília, v. 72, n. 3, p. 105-122, set./dez. 2006).

The goal of this legal provision is to preserve the potential of children and teenagers, offering basic conditions for their natural, balanced and continuous development, in order for them to enjoy full conditions in adult life. According to Eliana Araque dos Santos (2006), this integral protection is not only aimed at the person, at the preservation of their dignity, but also at society and at the preservation of the quality of life.

Despite all the existing protections, it is common knowledge that with the advent of the internet and advancing technology, information and content started to spread with greater facility and speed. Information that used to be filtered by borders and censorship controls imposed on communication vehicles now reaches all audiences simultaneously and in real time.

This is such a relevant concern that it has mobilised 23 associations, one of which is the Brazilian Association of Licensing of Brands and Characters (ABRAL). From this union came campaigns that have as their central theme the responsible communication of products and services aimed at children and teenagers. The focus on digital content was inspired by the CBAP and by the Advertising Guide for Digital Influencers, recently published by CONAR.

This initiative intended to promote dialogue between various audiences, but one in particular: the communication professional. Nowadays, the digital environment increasingly requires looking beyond the creation of content, demanding its respect for healthy speech practices, ethics and responsibility. For example, if an advertising content is being disseminated by an influencer in a structured way, this must be clear when it is disseminated. There are some rules for this, and the material constructed by the local entities, such as ABA, ABIA and ABRAL, among others, highlights the main ones.

This immense and tempting offer of content – combined with current conditions in society, where parents work long hours and the streets are no longer safe – is available to children and teenagers, who used to interact with each other and play games, but now spend time indoors consuming digital content on social networks, electronic games and the internet.

A survey from the Brazilian Internet Steering Committee points out that 93% of Brazilians aged 9 to 17 years old are internet users, of which 78% accessed social networks in 2021 (an increase of 10 percentage points over 2019). Among the platforms used, the proportion of internet users in the same age group who have a profile on Instagram increased from 45% in 2018 to 62% in 2021. In addition, for the first time, the study investigated the existence of a profile on TikTok and found that 58% of users in this age group are on the platform.

This new reality leads us to important reflections about what childhood means nowadays. What role does digital content play in the lives of minors? What precautions are necessary when using social networks?

The problem of this rampant access to content is already being challenged. It was recently reported that the father of a child has filed a lawsuit against a social network widely used in Brazil and abroad, whose activity is to make available several types of content through videos created by its users. According to the articles on the subject, the father claims that the social network is responsible for violating the ECA by publishing videos with sensitive content for children and teens (SANTIAGO, Abinoan. Pai acusa Tiktok na Justiça por burlar o ECA; ação pode afetar outras redes. Tilt Uol).

According to news reports, the lawsuit aims to increase the enforcement policy of TikTok, forcing it to display, in all posted content, the indicative rating, as well as to require the verification of identity of users as a way to prohibit access to videos without a registration and login approval, preventing inappropriate content reaching the child audience.

Evaluation of the documents and information posted on the TikTok platform reveals its so-called Community Guidelines, which contain a specific chapter addressing the safety of minors. According to the guidelines, users of the platform must meet minimum age requirements and the platform can remove accounts of minors under the age of thirteen if and when identified.

The platform’s guidelines also provide that: “account holders under sixteen years old cannot use direct messages or make lives and their content is not eligible to be displayed in the ‘For You’ newsfeed (age limits may be higher in some regions). Account holders under eighteen years old cannot send or receive gifts through our virtual gift sending features...”.

According to the father’s complaint, despite the fact that the provisions of the Community Guidelines provide for rules and restrictions on content, in practice, children and teenagers have easy access to all kinds of content on the platform, especially if we consider that it is possible to access such content without even having an account on the platform, which contradicts the Community Guidelines themselves.

The plaintiff granted an interview to Tilt Uol, claiming that, as a father of two underage children, he has a duty to express his concern about inappropriate content, since there is no effective policy to protect children and teens. He also raised the point that the social network does not completely prevent the search for inappropriate content because, although the platform prohibits the search for some terms such as “sex”, it is possible to access such content when searched by synonyms or in code format, such as “s3xo”.

Despite the fact that the lawsuit is under secrecy, it is reported in news that the Public Prosecutor’s Office of São Paulo has been following the case with great interest.

It is not being questioned whether the access to information is important and salutary to the democratic process of law and even to the development of minors. It is no wonder that freedom of communication and thought is one of our most important constitutional principles.

What is proposed is a pause to reflect on the fact that abuses may exist and, therefore, content providers should be more careful and responsible when relating or offering content to minors, inserting robust access control mechanisms that allow the correct targeting of content to the appropriate audience.

Despite this current moment in history, childhood is and always will be a phase in which human beings are still developing psychologically, which is why, in line with the provisions of the Brazilian Federal Constitution (Art. 227 of the Brazilian Federal Constitution of 1988) and Article 6 of the ECA, members of this audience must be regarded as vulnerable beings, regardless of their reasoning capacity or natural evolution in comparison to previous generations.

This care for the minor does not require more restrictive laws or radical changes to the laws in force. Although the role of educating is primarily up to the parents and, secondarily, to the state, which should guarantee access to quality education, the simple commitment of digital content providers to adopt stricter and more effective control of access to their content, a commitment sought by the father in the lawsuit filed against TikTok, would be sufficient to protect the vulnerability of the minor and ensure a richer and healthier childhood.

Inglez, Werneck, Ramos, Cury e Françolin Advogados

Av. Eng. Luís Carlos Berrini, 105
17th floor
Berrini One Bldg
São Paulo/SP
04571-010
Brazil

+55 11 4550 5002

legalmkt@iwrcf.com.br www.iwrcf.com.br
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Law and Practice

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Inglez, Werneck, Ramos, Cury e Françolin Advogados (IWRCF) is a full-service law firm with the necessary resources to serve clients in complex projects and cases, which require professionals with business vision, broad experience and multidisciplinary expertise. At the same time, the firm offers a boutique-style service in order to guarantee personal relationships with clients and high-quality outcomes. IWRCF’s Marketing and Advertising practice assists clients in several matters involving advertisement and marketing in Brazil, including supporting the relationship between agencies and advertisers, with the drafting and negotiation of the relevant contracts; advisory and preventive support in general marketing actions (print and digital media, TV and radio); review of advertisement materials, according to applicable laws and regulations; support in the development of loyalties programmes; defence of clients’ interests before the National Advertising Self-Regulation Council (CONAR) and other competent bodies; review of aspects of comparative advertisements, children’s advertisements, merchandising, brand use and other forms of advertising modalities; support in the development and carrying out of commercial campaigns and sweepstakes (SEAE and SUSEP); offering training and workshops for employees; and providing legal opinions on legal marketing matters.

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Inglez, Werneck, Ramos, Cury e Françolin Advogados (IWRCF) is a full-service law firm with the necessary resources to serve clients in complex projects and cases, which require professionals with business vision, broad experience and multidisciplinary expertise. At the same time, the firm offers a boutique-style service in order to guarantee personal relationships with clients and high-quality outcomes. IWRCF’s Marketing and Advertising practice assists clients in several matters involving advertisement and marketing in Brazil, including supporting the relationship between agencies and advertisers, with the drafting and negotiation of the relevant contracts; advisory and preventive support in general marketing actions (print and digital media, TV and radio); review of advertisement materials, according to applicable laws and regulations; support in the development of loyalties programmes; defence of clients’ interests before the National Advertising Self-Regulation Council (CONAR) and other competent bodies; review of aspects of comparative advertisements, children’s advertisements, merchandising, brand use and other forms of advertising modalities; support in the development and carrying out of commercial campaigns (SEAE and SUSEP); offering training and workshops for employees; and providing legal opinions on legal marketing matters.

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