BRAZIL Law and Practice Contributed by: Lucia Ancona Lopez de Magalhães Dias, Maria Fernanda Saab Nersessian and Camila Emi Tomimatsu, Magalhães e Dias
• true representation of promotions on packaging and point-of-sale materials. 1.2 Enforcement and Regulatory Authorities In Brazil, advertising supervision may be performed either by federal, state or local administrative bodies (CDC Articles 55 and 82 and Decree 2181/97). The National Consumer Secretariat ( Secretaria Nacional do Consumidor SENACON), subordinate to the Ministry of Justice and Public Security, is the fed - eral administrative body that co-ordinates the National Consumer Protection System ( Sistema Nacional de Defesa do Consumidor SNDC). However, it does not have hierarchical authority over state or local agencies (PROCONs), which are responsible for consumer pro - tection and have administrative sanctioning authority. SENACON may issue ordinances and rules concern - ing CDC enforcement, including in relation to adver - tising, although advertising regulation through a rule other than one provided for in federal law is always controversial (Article 220 (3) and (4) of the Federal Constitution). SENACON can also apply injunctions’ measures and fines of up to BRL15 million. In the civil sphere, the Federal and State Public Pros - ecutor’s Office, the Public Defender’s Office and the legally constituted and authorised consumer pro - tection associations are also empowered to enforce the CDC (Article 82), and, by filing public interest civil actions, may seek to redress moral and material damages caused by deceptive or abusive advertising aimed at a community of consumers. Finally, CONAR is the self-regulatory authority respon - sible for the supervision of advertising compliance under the CBAP (see 1.7 Self-Regulatory Authorities ). 1.3 Liability for Deceptive Advertising Not only the advertiser, but also advertising agencies, communication vehicles and celebrities, can be held liable for deceptive advertising. Initially, case law held that only the advertiser was directly liable for the messages (Articles 36 and 38 of the CDC, which provide that the advertiser has the burden of proof in demonstrating the truthfulness
and accuracy of the advertising message). This under - standing was confirmed by the Superior Court of Jus - tice ( Superior Tribunal de Justiça STJ) in the Special Appeal ( Recurso Especial REsp – 604.172). However, more recently, advertising agencies have been sued along with the advertiser (REsp 1.676.750). There is also an interpretation that argues that all agents in the chain must be liable (Articles 7 and Article 25 (1) of the CDC). This understanding is in line with CONAR rules, which, despite merely constituting a code of ethics, circum - scribe and guide the advertising market (Article 45 (b), CBAP). Regarding individuals, punishment will be personal - ised in the case of a criminal offence; Articles 67–69 of the CDC establish the necessary requirements for advertising to be deemed deceiving and/or abusive. Misleading Offer The advertising agency should not be held liable for misleading offers since it is not liable for defective products or services, nor can it be compelled to meet the offer made to the consumer or even deliver an equivalent product. Communication Vehicles The media cannot control the overall message or accurately examine technical and scientific data. In principle, the liability of communication vehicles is not strict, although they may ultimately be liable if there is wilful intent or gross negligence. Celebrities/Influencers Celebrities lend their image, voice and prestige to pro - mote advertisers’ products. They do not participate in the advertising creative process, so, as a rule, receive the advertiser’s pre-prepared text, for which they can - not be held strictly liable. Furthermore, celebrities (and currently also influencers) are considered independent contractors who can only be held liable upon the pro - duction of evidence of wilful intent or gross negligence (Article 14 (4) of the CDC). An exception to this rule occurs when the influencer takes on the role of adver - tiser (as the owner of his/her own brand), objectively taking responsibility for its advertising initiatives.
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