Advertising To Children - Ban Or Regulate? Some Legal Considerations On The Brazilian Case.

1. The context of current debates

   Advertising to children has become one of the most relevant issues in Brazilian society today, and not without reason. Were it not for the child-consumption relationship, in itself a fundamental theme, the proliferation of access to increasingly variable means and forms of digital communication requires the indispensable protection of the infant during the early stages of educational and cultural upbringing.

   In spite of its relevance, discussion on the subject - at least in the field of Law - seems at times to meander through unscientific paths. On this regard, it should be noted, for instance, that a significant part of the supposedly juridically-minded debates on regulation of advertising to children in Brazil often disregard the fact that our legislation already contains strong constitutional and infraconstitutional rules on the issue. Furthermore, it tends to be overlooked that Brazil is recognized worldwide as having a self-regulation system (the National Advertising Self-Regulation Council - CONAR) that, for over four decades, has been significantly deepening the existing legal parameters, granting celerity and legal stability to consumer relations and harmonizing the legislation to the public interest.

   We believe that any discussion about advertising to children and its possible effects - both positive and negative - on the Brazilian society should be based on a few important premises.

   First, advertising is, by its very nature, a form of expression of ideas, opinions and information. As such, it must be viewed as a fundamental and, therefore, constitutionally protected freedom. Legislative initiatives to ban advertising altogether, including child advertising, are hardly compatible with a free and democratic society, as they violate basic principles of the Federal Constitution and, in fact, ultimately hamper free access to ideas and the formation of social convictions.

   On the other hand, since no freedom is absolute, advertising to children should also not be allowed as an abusive practice of this expression. Misleading or abusive advertising can never be accepted, especially when, through techniques or trickery, it takes advantage of the child's lower capacity for discernment. In this regard, some restrictions on advertising to children and consumerism as a form of social status, imposed by the Consumer Protection Code - CDC and the Statute of the Child and Adolescent - ECA, as well as by CONAR itself (which, by the way, has a specific chapter on the subject) have been fundamental.

   However, when devised and produced in a responsible way and in compliance with current legislation, as well as with the greater good of Brazilian society, advertising - including children's advertising - can and should play a very important role, be it in the field of ideas or in the context of a dynamic economy. Therefore, any initiatives aimed at banning per se this licit activity that is duly regulated by our legal system should be eschewed.

   Finally, a third center of gravitation in this discussion would be the role of the family, especially that of the parents in the context of child protection. More than norms and measures to rationalize their enforcement, it is crucial that the family educates and guides the child so that, in a mediatic and globalized world, it learns to deal in a safe and healthy manner with the most diverse social phenomena, including advertising and consumption.

   This article aims at contributing to this debate by shedding light on discussions concerning the legislative framework - both existing and under legislative consideration - in three steps. In the first, we examine attempts to "ban per se" any and all advertising to children. In the second, we calibrate our lenses for an accurate description of the positive framework on advertising to children that exists in Brazil, discussing also its effectiveness. Finally, as a closing and indirect assessment of the mixed model of control in force in the country, we present to the reader an international...