Prohibited and controlled advertising in Brazil

Prohibited and controlled advertising

What products and services may not be advertised?

There are unique categories of advertisements based on their economic or social importance or public or societal repercussions, and certain categories of advertisements that are subject to special care and specific rules, for instance:

• alcoholic beverages;
• education: courses and teaching;
• real property: sale and lease;
• investments: loans and securities market;
• food: soft drinks, juice and similar beverages;
• over-the-counter (OTC) pharmaceutical products;
• tobacco products;
• firearms; and
• children’s advertising.

In this sense, Brazilian law and regulations allow the advertising of any products and services, except illicit products and services, as well as gambling (see question 30).

Are certain advertising methods prohibited?

Yes. Subliminal advertising and ambush marketing are prohibited.

Ambush marketing is considered to be undue and unlawful and include methods that apply tricks or artifices, without the support of a regular agreement entered into by the lawful parties providing for a lawful object, without the previous agreement of the communication medium or holders of the involved rights.

With regard to the methods applied to children’s advertising, there are several prohibited methods that must be analysed on a case-by-case basis.

What are the rules for advertising as regards minors and their protection?

Brazil has specific laws and regulations that guide the advertising of services and products targeted st minors (ie, children (up to 12 years of age) and teenagers (between 12 and 18 years of age)).

The most relevant regulations are the Consumer Defence Code, the Statue of Child and Adolescents and the CBAP, which, in summary, prohibit the exploration of the lack of judgment of the minor and the incentivisation of the consumption of goods or services.

Although it is clear in the law that children’s advertising is legal, the lack of a detailed regulation has created a massive controversy surrounding this issue, mostly driven by the marketing promoted by social media influencers.

Are there special rules for advertising credit or financial products?

All advertisements of investments, loans and the securities market shall comply with several specific provisions, especially regarding investor education and orientation. In this sense, the main rules are summarised as follows:

• advertising shall emphasise the informative and educational content of the message; and
• advertising must avoid assertions that may give ambiguous information or create confusion among investors.

Additionally, the companies that are part of the National Financial System shall comply with the rules applicable to advertising issued by their institutional representation bodies if, and when, specific campaigns recommend common procedure and uniformity in the communication process to provide investors with better orientation and information.

Are there special rules for claims made about therapeutic goods and services?

OTC pharmaceutical products are permitted to be advertised by law and the advertisements must, inter alia:

• not contain any assertion as to the action of the product other than those based on clinical or scientific evidence;
• not be made so as to suggest the healing or prevention of any disease that requires medical supervised treatment;
• not be made in a manner such as to result in different use of the therapeutic action contained in the report submitted to the competent Health Authority;
• not offer any award, participation in contests or similar methods so as to induce the consumer to unnecessary use of medication;
• not be made so as to induce the use of products by children without parental guidance, to whom the message shall be exclusively addressed;
• be careful and true as to the use of the written or spoken word as well as to visual effects. The choice of words shall not only be in conformity with the definition contained in updated dictionaries but shall also take into account the meaning generally understood by the public; and
• not contain affirmations or dramatisations that may induce the reader or spectator to fear or distress that he or she has or may have, without treatment, any serious disease.

Are there special rules for claims about foodstuffs regarding health and nutrition, and weight control?

Specific rules are provided to regulate the commercial advertising of food, soft drinks, juice, chocolate beverages, non-carbonated beverages and similar non-alcoholic beverages.

The following main specific rules for claims related to health, nutrition and weight control provide that advertisements must:

• contain terminology consistent with the official licensing, either to designate qualities such as ‘diet’, ‘light’, ‘it does not contain sugar’ and ‘it does not contain gluten’, or to describe any other distinctive characteristics that may guide consumer choices;
• valorise and stimulate, whenever possible, the practice of physical exercises and similar activities;
• abstain from stimulating or encouraging excessive consumption or presenting situations that may stimulate exaggerated consumption or be in conflict with this recommendation;
• refrain from denigrating the importance of a healthy, varied and balanced diet;
• refrain from presenting any product as a replacement for basic meals (breakfast, lunch and dinner), unless such indication is based on a responsible medical or nutritional opinion, recognised by the competent authorities;
• restrict the technical assertions relating to benefits to health and nutrition to those compatible with the official licensing and supported by a responsible medical or nutritional opinion; and
• refrain from using children with low or high weight according to the commonly accepted biometric standards, and avoid offending such children and others. When the product is aimed at children, the advertisement shall not have any stimulation of consumption, especially if presented by a family, school, medical or sports institution or cultural or public authority, or is of an institutional nature, promoting healthy eating habits.

What are the rules for advertising alcoholic beverages?

For the purposes of advertising, an alcoholic beverage is the beverage classified as such according to the official rules and regulations to which its licensing is subject. However, the CBAP establishes a distinction between three categories of alcoholic beverages:

• those usually taken during meals, and thus called meal beverages (eg, beer and wine);
• other alcoholic beverages, either fermented, distilled, rectified, pre-mixed beverages or cocktails (usually served in doses); and
• the ready-to-drink category, in which the alcoholic beverage is presented in a mixture with water, juice or soft drink.

Each category has different and specific rules for broadcast and non-broadcast advertising, including, but not limited to, the warning clause. All advertisements must be analysed on a case-by-case basis by a local lawyer.

What are the rules for advertising tobacco products?

A tobacco product advertisement shall observe the following rules:

• it shall not suggest that the products have relaxing or stimulating properties, reduce fatigue, tension or produce any similar effect;
• it shall not associate the product with ideas or images suggesting success in terms of sexuality, or insinuate an increase in smokers’ virility or femininity;
• it shall not suggest or promote exaggerated or irresponsible consumption, associate consumption with welfare or health or show consumption in illegal or dangerous places;
• it shall not associate the use of the product with practice of Olympic sports or use Olympic sports clothing to promote its marks;
• it shall make no appeal specifically addressed to children below 18 years of age; and any person who appears in an advertisement subject to these rules, either smoking or not smoking, shall look and be older than 25 years of age;
• it shall not use imperative forms that may directly encourage consumption; and
• media planning shall be careful concerning the target public.

The advertisement shall not be inserted in any publication, programme or website basically addressed to minors. The sales outlet materials shall reflect similar care.

Are there special rules for advertising gambling?

Gambling and betting activities are generally prohibited in Brazil (with some exceptions as provided by law, namely the state-run lottery and horse races conducted at duly authorised race courses).

The Brazilian Federal Union is exclusively competent to legislate on bingos and lotteries.

Gambling is a criminal contravention and is defined as a game where the result depends exclusively or mainly on chance, or any betting on horse races outside authorised race courses.

There are many bills of law aimed at either creating additional restrictions or legalising gambling in Brazil.

What are the rules for advertising lotteries?

The Federal Union is exclusively competent to legislate on lotteries, including eventual advertising.

What are the requirements for advertising and offering promotional contests?

At the end of 2018, Federal Law No. 13.756/2018 was issued, granting exclusive powers to the Ministry of Finance, specifically to the Secretary of Fiscal, Energy and Lottery (SEFEL), to analyse, authorise and supervise commercial promotions, including philanthropic sweepstakes, which was previously shared with the Federal Controlled Bank.

In terms of commercial promotions, it is mandatory to include the following legal text in all broadcast and non-broadcast advertising of such:

• the term ‘promotional contest’ with the title of the contest and the authorising entity (usually the SEFEL or the Superintendence of Private Insurance);
• a certificate authorisation number; and
• the promoter’s website address.

Moreover, the promotion may be advertised only once a certificate of authorisation is obtained.

Are there any restrictions on indirect marketing, such as commercial sponsorship of programmes and product placement?

Indirect advertising or ‘merchandising’ is permitted; however, it must be authentic and be identified as advertising.

In addition, indirect merchandising or advertising that depicts children and also uses elements of the infant universe or other artifices with the deliberate purpose of capturing the attention of this audience, whatever the vehicle may be, is prohibited.

Briefly give details of any other notable special advertising regimes.

The following are specific rules from the CBAP that must be adhered to in general advertising:

• no advertisement shall encourage or stimulate any type of offence or racial, social, political, religious or national discrimination;
• any advertisement that disrespects religious belief and other susceptibilities of persons who descend from or relate to deceased persons whose image or reference appears in the advertisement is prohibited;
• with regard to advertisements to be broadcast by radio and television, advertisers, agencies and media shall ensure the good pronunciation of the Portuguese language and avoid aggravating prosodic vices that have already so much contributed to disfigure the legacy that we received from our ancestors;
• the advertisement shall be created within the scope of the Brazilian social and cultural context; the use or adoption of foreign cultural context being restricted as much as possible;
• advertisements shall not use bad words;
• any technical description of the product that may be included in the advertisement shall be based on the official nomenclature of the relevant segment and whenever possible it shall follow the rules and directives of the Brazilian Association of Technical Rules and the National Institute of Metrology, Rules and Industrial Quality;
• the advertisement shall contain nothing that may induce to violence; and
• no advertisement may contain visual or audio presentations that may offend the decency standards of the audience it intends to reach or offensive comparisons with competitors.