BRAZIL Law and Practice Contributed by: Lucia Ancona Lopez de Magalhães Dias, Maria Fernanda Saab Nersessian and Camila Emi Tomimatsu, Magalhães e Dias
the Brazilian social and cultural context (Article 27, Section 6 (c) of the CBAP). 3.2 Children Children are defined by the Child and Adolescent Stat - ute ( Estatuto da Criança e do Adolescente ECA) as people up to 12 years old. Marketing to children is regulated in Brazil by Article 37 (2) of the CDC, which establishes that advertising that takes advantage of children’s less developed judgment and limited expe - rience is abusive. Despite the CDC prohibiting only abusive advertising, decisions have been rendered by the STJ against “gift with purchase” promotions that grant gifts in the food sector. Brazil’s National Congress recently approved the Digi - tal ECA, as noted in 1.9 Regulatory and Legal Trends . Concerning advertising, the Bill imposes an outright ban on profiling-based targeting of minors and the use of emotion analysis, as well as AR/XR/VR techniques, for that purpose. Regarding self-regulation, CONAR provides a detailed list of rules to ensure that messages aimed at children are appropriate and respect their status as “develop - ing persons”. Besides dedicating a specific section of its Code (Article 37, et seq, of the CBAP) to chil - dren and teenagers, Annex H of CONAR also pro - vides several rules concerning the marketing of food to children. Moreover, CONAR’s Guidelines hold that advertise - ments must consider the target audience. The Self- Regulation Guidelines introduce a specific rule stat - ing that messages must be identifiable and distinct from the rest of the content (Item 1.1); simply using hashtags (#) is not sufficient. For effective “material disclosure” in advertisements featuring audio and vid - eo elements, it is recommended that both written and verbal forms be used for identifying the advertising, as these are more easily noticed by children. 3.3 Dark Patterns There is no special law, regulation or guide that deals with dark patterns in advertising in Brazil. However, CONAR has already judged several cases involving the use of dark patterns in advertising, condemning advertisements based on misleading messages that
could manipulate consumers. Such cases are also addressed by the CDC, which condemns any type of abusiveness or exploitation of a consumer’s lack of experience. 3.4 Sponsor Identification and Branded Content There are no specific rules for sponsor ID and branded content. Therefore, the general principle of advertis - ing identification is applied: if a commercial element and brand are involved, their relation must be clear to consumers. 3.5 Special Rules for Native Advertising In Brazil, all advertising content must be identified as such. Native advertising (ie, advertising that resembles editorial content) must follow overall CDC and CONAR rules and principles, and cannot hide its commercial nature on penalty of being declared deceitful accord - ing to the presentation format (hidden advertising). CONAR’s Guidelines reinforce the principle of identi - fication provided for in the CDC and in self-regulation law. General Requirements of Comparative Advertising The CDC does not expressly mention comparative advertising, and this advertising technique is not pro - hibited. CONAR, however, has opted to expressly regulate comparative advertising, recognising it as customary market practice (Article 32 of the CBAP). Comparative advertising should be used only in rela - tion to goods and services of the same type or nature. CONAR further reinforces that the main purpose of comparative advertising should be to provide con - sumers with information. Therefore, any comparison should be based only on objective and provable data, and must rest on one or more fundamental elements of the comparative product or service, thus increasing the information available to the consumer. 4. Comparative Advertising and Ambush Marketing 4.1 Specific Rules or Restrictions
15 CHAMBERS.COM
Powered by FlippingBook