BRAZIL Law and Practice Contributed by: Lucia Ancona Lopez de Magalhães Dias, Maria Fernanda Saab Nersessian and Camila Emi Tomimatsu, Magalhães e Dias
Magalhães e Dias Advocacia R Armando A Penteado, 304
Pacaembu São Paulo CEP 01242-010 Brazil Tel: +55 11 3829 4411
Email: lm@magalhaesdias.com.br Web: www.magalhaesdias.com.br
1. Legal Framework and Regulatory Bodies 1.1 Primary Laws and Regulation General Rules: The Consumer Defense Code (CDC; Law 8078/90) The CDC is the main law governing advertising and marketing in Brazil, being applicable to all sectors and products. Broadly speaking, the CDC: • prohibits deceptive advertising (Articles 37.1 and 37.3) and abusive advertising, understood, inter alia, as discriminatory messages that exploit fear or superstition, violate environmental rules or take advantage of children’s less developed judgement and naivety (Article 37.2); • establishes that all advertising must be easily identifiable as such (the principle of “identification” forbids hidden advertising – Article 36); and • requires the supplier to keep any factual, technical and scientific data that supports ads (Article 36) – the burden of proof is always on the advertiser (Article 38). Specific Sectors Certain sectors are also governed by specific regula - tions; see 9.1 Regulated Products . “Clean City” Law In São Paulo and certain other municipalities, there are advertising bans on out-of-home advertising (OOH) and the use of rooftops and building sides, cars, bus - es, motorcycles and bicycles (Law 14,223/2006 and Decree 47950/2006). Advertisements in or on urban
properties, despite being permitted, must follow strict regulations. Economic Freedom Act Law 13,874/2019 prohibits so-called abuse of regula - tion by the state. Article 4, applicable to advertising, aims to prevent the abuse of restrictions on advertis - ing in any economic sector, except in cases expressly regulated by federal law. Brazilian Advertising Self-Regulation Council (CONAR) The Brazilian Advertising Self-Regulation Code ( Códi‑ go Brasileiro de Autorregulamentação Publicitária CBAP), drafted and applied by the Brazilian Adver - tising Self-Regulation Council ( Conselho Nacional de Auto‑Regulamentação Publicitária CONAR), details advertising limits for the different economic sectors. In 2021, CONAR issued the Digital Influencer Adver - tising Guidelines (the “Guidelines”), which contain instructions on the application of the rules of the CBAP to commercial content on social media platforms, in particular content generated by digital influencers. CONAR also launched good practice guidelines for online advertising aimed at children and issued a few technical notes on: • proposed warnings for the use of filters in adver - tisements; • the advertising of products and services making reference to COVID-19; and
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