Advertising To Children In Brazil: A New Minefield

Co-authored by: Lívia Miné, Rebeca Arruda Gomes & Amanda Rudzit

Advertising to children is currently a heated topic in Brazil in view of the recent decisions by the Superior Court of Justice ("STJ").

Last year, the STJ ruled an important case1 filed against one of the food industry giants, concluding that the defendant engaged in abusive advertising of food products for children. The defendant's campaign allowed children to exchange product packages plus R$5.00 for wristwatches with images of the Shrek cartoon. The STJ considered this campaign to be a tie-in sale, which is illegal under the Brazilian Consumer Defense Code ("CDC"), and abusive because it induced the young audience to consumption and manipulated the innocence of their universe. The Supreme Federal Court reporting Justice decided not to hear the appeal filed by the manufacturer on the grounds that it dealt with non-constitutional issues only. Manufacturer may still appeal to the whole panel.

On April 25, 2017, the STJ rendered a similar decision in a nearly identical case2, granting the appeal filed by one of the São Paulo Consumer Agencies (Procon) to maintain a fine against another company in the food industry that offered stuffed animals in exchange for R$3.00 and stamps found in what was deemed an unhealthy product. The written decision is not available yet, but it appears that once again what triggered the conclusion of abusive advertising was the tie-in sale directed to children. The STJ demonstrated a growing concern about the manipulation of children's innocence through different forms of entertainment in times when child obesity is a real issue for society as a whole. According to the STJ, the decision about the purchase and consumption of food products shall lie with the parents only.

While these decisions have provoked a heated debate in the legal community and a deep reflection about children's health, they have also given rise to many questions such as what forms of campaign are considered manipulative of children's realities, and what are the limits imposed to the food industry as to products that can be equally targeted at children and adults.

Research in the main Courts of Appeals in the country3 reveals that the recent STJ decisions have not yet greatly affected the way that these courts view the matter. The predominant understanding is that the evaluation of possible abuse in advertising directed to children must be done on a case-by-case basis, and that...