BRAZIL Law and Practice Contributed by: Lucia Ancona Lopez de Magalhães Dias, Maria Fernanda Saab Nersessian and Camila Emi Tomimatsu, Magalhães e Dias
failure to enforce the recommended remedies and actions. 1.8 Private Right of Action for Consumers Advertising practices may be challenged by lawful consumer defence bodies – ie, the Public Attorney’s Office, the Program for Consumer Protection and Defense ( Programa de Proteção e Defesa do Consu‑ midor PROCON) and SENACON – either on behalf of society or by individual consumers. The civil liability that arises from deceptive or abusive advertising is a strict one, being based on enterprise risk theory. However, despite being strict, the duty to repair is not automatic, and the individual consumer must prove causation between the advertisement and the alleged damage, which must be concrete (and not potential, as in collective actions). 1.9 Regulatory and Legal Trends In the past 12 months, there have been important developments in longstanding issues and cases. One example is the approval of Bill No 2,628/2022 (the “Digital ECA”, named after Brazil’s Child and Adoles - cent Statute, known as the ECA), which was published in the Official Gazette under Law No 15,211/2025 and, inter alia, imposes an outright ban on profiling-based targeting of minors and the use of emotion analysis, as well as augmented/extended/virtual reality (AR/XR/ VR) techniques, for that purpose. Another interesting development was the holding of public hearings throughout the year on topics that could have an impact on the regulation of deceptive advertising for foods and medicines, such as the pub - lic hearing by the Brazilian Federal Supreme Court ( Supremo Tribunal Federal STF) to discuss the regula - tion of advertising for medicines and foods considered harmful to health, in the context of a relevant suit (the Direct Suit of Unconstitutionality – ADI 7788). Regarding self-regulation, in 2025, CONAR case law has grappled with formats that reshape the concept of editorial control – eg, affiliate networks, creator programmes, employees’ LinkedIn posts, third-party content surfacing via “tagged” tabs and other non- traditional arrangements.
In the context of AI, which is constantly under dis - cussion in Brazil, CONAR has ruled on several cases involving its use in advertising; among the main topics are deepfakes, failures in programmatic advertising of restricted products, inaccurate or misleading offers and ads engaging in stereotyping. 1.10 Taste and Cultural Concerns Brazil has a large and diverse population and enor - mous cultural richness. Brazilian advertising is marked by creativity, irreverence, humour and intelligence, and it often depicts diverse aspects of society. However, Brazilian audiences have proven highly judgmental with respect to inclusive and affirmative advertising, which is often misunderstood as being discriminator and perceived as segregating people or encouraging prejudiced attitudes. 1.11 Politics, Regulation and Enforcement Issues currently under the spotlight include advertise - ments of “ultra-processed” and high in fat, salt and sugar (HFSS) foods, as well advertising aimed at chil - dren – especially in digital spaces. Concerns in this regard motivated the approval and publication of the Digital ECA (Law No 15,211/2025), as well as the pub - lication of Resolution 245/2024 of the National Council for the Rights of Children and Adolescents ( Conselho Nacional dos Direitos da Criança e do Adolescente CONANDA) in April 2024, which sets forth rights for children and adolescents in the digital space, taking a more restrictive stance. Misleading advertising is defined in Article 37 (1) and (3) of the CDC as messaging that may deceive con - sumers as to the features of the advertised product or service (ie, its nature, quality, quantity, properties, origin, price or any other aspect), by omission or any other means (eg, ambiguity and/or inaccuracy). The CDC defines advertising that is deceptive by way of omission as that which fails to inform consumers of “essential information” related to the advertised prod - uct or service. Essential information may refer to the terms of an offer or the conditions of – or constraints 2. Advertising Claims 2.1 Deceptive or Misleading Claims
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