BRAZIL Law and Practice Contributed by: Lucia Ancona Lopez de Magalhães Dias, Maria Fernanda Saab Nersessian and Camila Emi Tomimatsu, Magalhães e Dias
on – the enjoyment of a good or service. The decep - tive potential of an advertisement must be examined and accurately measured according to the impression that it creates (or may create) on its target audience. The regulation of deceptive advertising is not restrict - ed to the content. Advertisements that mask their commercial nature may be declared misleading due to breach of the principle of identification (Article 36 of the CDC). 2.2 Regulation of Advertising Claims The CDC does not regulate specific claims or advertis - ing techniques. However, all advertising must adhere to the principles of truthfulness, honesty and non- abusiveness. Moreover, certain sectors are subject to specific regulations (see 9.1 Regulated Products ). 2.3 Substantiation of Advertising Claims Article 36 of the CDC establishes the principle of “transparency” and requires advertisers to retain supporting factual, technical and scientific data. The scope of this legal requirement means that the bur - den of proof is on advertisers regarding the veracity of their claims. The same rule is provided in Article 27 (1) of the CBAP, compelling advertisers and agencies to provide fac - tual, technical or scientific evidence regarding any comparisons or descriptions whenever requested. Testing Neither Brazilian law nor self-regulatory rules establish specific standards for testing advertising claims; such analysis is done on a case-by-case basis. The law only requires that comparative ads claiming effective - ness or differences relative to market competitors be supported by testing (prior to the campaign), and the source (eg, a survey) of the claim must be referenced in the advertisement, even if in a footnote. 2.4 Product Demonstrations CONAR has recognised, on several occasions, the validity of campaigns that use product demonstra - tions (“demos”) as a visually entertaining way to high - light a benefit offered by a product, as long as the highlighted benefit is duly supported and proven by clinical testing. Demos are recognised as a creative
and valid resource to inform the consumer, through dramatisation, of a scientifically proven benefit, ren - dering technical information easy to understand for the average consumer. 2.5 Endorsements and Testimonials Testimonials are defined by CONAR as depositions, endorsements or certifications whereby an individual or legal entity, other than the advertiser, gives an opin - ion or reports its own experience or observations in relation to a product (Exhibit Q of the CBAP). Accord - ing to this definition, the classifications are as follows: • the testimonial of a specialist/expert; • the testimonial of a famous person; • the testimonial of a lay-person or consumer; and • a certification or endorsement issued by a legal entity reflecting its official opinion. Testimonial messages must truly reflect the benefits proclaimed, as well as the individual’s real impres - sions. Testimony does not exempt the supplier from proving the veracity of any claims made in an ad. 2.6 Environmental Claims Self-Regulation (Exhibit U of the CBAP) Article 36 of the CBAP (and its Exhibit U) states that advertising must reflect the advertiser’s liability towards the environment and sustainability, and must be guided by the principles of concreteness, veracity, accuracy and clarity, proof and sources, pertinence and relevance; it must also be free from absolute claims. Socio-environmental statements must be pertinent and relevant and accurately express the practices and/or attributes to which they refer. Thus, abso - lute claims without specific qualification will only be accepted if based on robust evidence that supports the whole scope of the action and/or attribute adver - tised therein. The CDC is also applied in cases where an environ - mental claim is found to be misleading – by deceiving the consumer about the real environmental impact of the advertised product – or lacks adequate support with respect to its veracity (substantiation).
13 CHAMBERS.COM
Powered by FlippingBook