Q&A: advertising & marketing in Brazil

Legislation and regulation

What are the principal statutes regulating advertising generally?

The principal statutes regulating advertising in Brazil are:

• the Brazilian Federal Constitution;
• the CDC - Consumer Protection Code (Federal Law No. 8,078/90);
• the ECA - Statute of the Children and Adolescents (Federal Law No. 8,069/90); 
• the Brazilian Advertising Self-Regulation Code; 
• Federal Law No. 5768/71;  
• Decree No.70.951/1972; and
• Federal Law No. 5768/71 and Decree No.70.951/1972 regulate commercial promotions and sweepstakes.

Which bodies are primarily responsible for issuing advertising regulations and enforcing rules on advertising? How is the issue of concurrent jurisdiction among regulators with responsibility for advertising handled?

The bodies responsible for issuing advertising regulations in Brazil are the National Advertising Self-Regulation Council (CONAR) and the government itself, represented by the House of Representatives and the Senate.

CONAR is a self-regulatory agency formed by the associations that represent the advertisers, broadcasters, adverting agencies and other professionals that participate in advertising. As CONAR is a self-regulatory body, it has a limited authority and must base its decisions only on its code.

Some consumer protection agencies, as well as the Public Prosecutor, also have the authority to enforce the advertising rules through an administrative or judicial procedure.

The judiciary is the ultimate body responsible for enforcing the advertising rules. Although the other bodies have the authority to enforce these rules, the judiciary has a broader authority, and can, therefore, review the others bodies’ decisions and apply penalties such as fines and injunctions.

What powers do the regulators have?

As the National Advertising Self-Regulation Council (CONAR) is a self-regulatory agency, it does not have the authority to impose fines or determine the payment of any indemnifications. Based on the Brazilian Advertising Self-Regulation Code, CONAR’s penalties are:

• a warning;
• a recommendation to modify or correct the advertisement;
• a recommendation to broadcasters to suspend the disclosure of the advertisement; and
• a public notice announcing to the broadcasters CONAR’s position with regard to the advertiser, the agency and the media for non-compliance, with the steps and measures determined by the entity.

Any dispute regarding advertising may be submitted to the judiciary. Even decisions issued by CONAR may be challenged before the judiciary. Only the judiciary can determine the payment of indemnifications and fines, as well as review, and even revoke, CONAR’s decisions.

What are the current major concerns of regulators?

The current main concerns of the Brazilian regulators are:

• advertising aimed at children or carried out by children;
• the impact of advertising on childhood obesity;
• advertising of gambling and alcoholic beverages; and 
• the impact of social media influencers on society, especially with regard to channels and social media targeted at children and young people.

Give brief details of any issued industry codes of practice. What are the consequences for non-compliance?

The Brazilian Advertising Self-Regulation Code and the applicable legislation have specific regulations for different categories of product or people, such as:

• advertising campaigns for alcoholic beverages:
  • cannot explore sexuality;
  • must use actors who appear to be more than 25 years old; and
  • cannot contain scenes or images of actors ingesting the alcoholic beverage;
• influencers should properly disclose that the content of their posts is sponsored;
• children’s advertising should not induce the consumption of the advertised product or exploit the child’s innocence;
• automakers' advertising must comply with the National Transit Code and, for example, cannot contain high-speed scenes or manoeuvres that are not in accordance with the traffic rules;
• medication advertising is very limited and must comply with the rules established by the National Health Surveillance Agency; and
• tobacco advertising is virtually banned.

Non-compliance with regulations may result in the suspension of advertising by the National Advertising Self-Regulation Council and in the application of fines and penalties by the consumer protection agencies, as well as by judicial claims filed by interested parties.

Must advertisers register or obtain a licence?

Only agencies have an obligation to obtain a licence in Brazil. Advertisers have no obligation in this regard.

May advertisers seek advisory opinions from the regulator? Must certain advertising receive clearance before publication or broadcast?

It is possible to seek the National Advertising Self-Regulation Council's opinion before publication. It is also possible to file a procedure to seek judiciary approval before publication; however, these practices are not common in Brazil, due to the time taken and investment related to them.

Private enforcement (litigation and administrative procedures)

What avenues are available for competitors to challenge advertising? What are the advantages and disadvantages of the different avenues for challenging competitors’ advertising?

A competitor can challenge advertising through the National Advertising Self-Regulation Council (CONAR) or the judiciary. Claims with CONAR are faster and the competitors, as a rule, comply with CONAR’s decisions. The disadvantages of using CONAR are that it is not possible to seek indemnification through this body and its decisions can be reviewed by the judiciary (this has only happened in a few cases).

The judiciary route is more time-consuming and more costly. However, through this body it is possible to seek indemnification and a definitive decision.

How may members of the public or consumer associations challenge advertising? Who has standing to bring a civil action or start a regulatory proceeding? On what grounds?

Public prosecutors and members of other consumer protection bodies, such as the Protection and Consumer Protection Foundation, may challenge advertising through administrative and judicial procedures.

The procedures are initiated when there is a need to investigate the occurrence of abusive or misleading advertising. If such bodies interpret that the material constitutes misleading or abusive advertising, a criminal action may also be filed against the advertisers.

Which party bears the burden of proof?

The burden of proof lies with the advertiser. The advertiser must prove that its advertising campaign is regular and substantiated.

If the case is filed by a competitor seeking damages, although the advertiser has to prove that its advertising is regular, the competitor that files the claim has to prove its damages.

What remedies may the courts or other adjudicators grant?

The most common remedy granted by the courts or by the National Advertising Self-Regulation Council is an injunction to immediately suspend the advertising campaign.

Regarding the Brazilian judiciary, it is possible to seek other remedies such as damages, an injunction to do or not to do something or an injunction to anticipate the production of evidence. For instance, a company may request an injunction to immediately suspend a comparative campaign that denigrates the company’s image, as well as request losses and damages.

How long do proceedings normally take from start to conclusion?

There is no precise time frame for a decision from the National Advertising Self-Regulation Council (CONAR). Based on previous experience, a first decision can be granted by CONAR within one or two months and, therefore, a final decision can be issued within approximately six months.

Regarding the judiciary, first instance decisions can be granted within one or two years, and a court´s final decision can be issued within six to eight years, depending on the complexity of the case.

How much do such proceedings typically cost? Are costs and legal fees recoverable?

There is no average market value for such proceedings. The costs will depend on the complexity of the case, the need to carry out a procedure to collect evidence, the expenses involved, and so on.

At the National Advertising Self-Regulation Council, legal fees are not recoverable. In the judiciary, the party that wins the lawsuit may claim a reimbursement for the expenses and legal fees related to the lawsuit from the other party.

What appeals are available from the decision of a court or other adjudicating body?

Through the National Advertising Self-Regulation Council (CONAR) and the judiciary, there are three instances to be covered. At CONAR, after the initial decision, there is an appeal to the appellate chamber and a second appeal to the plenary if the appellate chamber decision is not unanimous.

The judiciary also has a second level and a special level circuit to address appeals. The last decision may be issued by the Supreme Court, depending on the circumstances.

Misleading advertising

How is editorial content differentiated from advertising?

Editorial content has a journalistic format, with the sole purpose of transmitting to society a fact or an event, even if it is the coverage of the launch of a new product. In principle, the editorial is created without influence of the advertiser.

Advertising is intended to promote a product or service, with the purpose of encouraging consumers to acquire it. If advertisers impact the editorial in any way, as in the case of influencers, it will be mandatory to disclose that the editorial content is actually an advertisement.

How does your law distinguish between ‘puffery’ and advertising claims that require support?

There is no legal provision in Brazilian law and regulation related to puffery; therefore, there is no basis to distinguish, with precision, puffery from claims that require support.

However, the National Advertising Self-Regulation Council has already recognised in a few cases that some claims can be considered as puffery. According to such decisions, puffery exists in cases of using exaggerated or even playful expressions that do not mislead the consumer by any means.

What are the general rules regarding misleading advertising? Must all material information be disclosed? Are disclaimers and footnotes permissible?

Any advertisement that, even by omission, is entirely or partially false or is in any way capable of inducing the consumer to make a mistake regarding any characteristic of the product or service advertised is considered misleading advertising.

Abusive advertising includes adverts that:

• have a discriminatory nature;
• incite violence or exploit fear or superstition;
• take advantage of a child’s lack of judgement or experience;
• disrespect environmental values; or
• may cause the consumer to behave in a way that will bring harm to his or her health or safety.

Disclaimers and footnotes are permitted in Brazil; however, some precautions have to be taken to make such tools valid. For instance, disclaimers must be implemented in a horizontal position, be readable to the average person and contain all the information necessary to support and clarify the claim, among other things.

Must an advertiser have proof of the claims it makes in advertising before publishing? Are there recognised standards for the type of proof necessary to substantiate claims?

The advertiser must have proof of a claim’s content if and when requested by the authorities, consumers or competitors.

There is no standard for the type of proof required to substantiate the claims. However, the proof must be substantiated or be issued by a third party with recognised expertise.

Are there specific requirements for advertising claims based on the results of surveys?

There are no specific requirements for advertising claims based on the results of surveys. However, the claims must be substantiated in real results, and preferably validated by a third party with recognised expertise and know-how.

What are the rules for comparisons with competitors? Is it permissible to identify a competitor by name?

Comparative advertising is accepted in Brazil. According to the applicable legislation, the primary purpose shall be clarification of the consumer’s protection. Therefore, among other requirements, the comparative advertisement shall be objective and supported by evidence, shall not make any confusion between the products and the competitor’s brands and there shall be no unfair competition or denigration of the image or another company’s products.

Based on the dispositions of the Industrial Property Law, there is a constant debate related to the right to use a competitor’s brand or products in comparative publicity.

The Supreme Court recently issued two important decisions in which the right to use a competitor’s brand and products in comparative advertising, restrictively in cases where the publicity brings relevant information to the consumer, was recognised.

Supreme Court decisions are positive and will allow companies to compare their products with others, with evidence, and will, above all, provide consumers with important information to help them decide which product best fits their demands and needs.

Do claims suggesting tests and studies prove a product’s superiority require higher or special degrees or types of proof?

There are no provisions in the applicable regulation relating to special types of proof. However, because competitors may challenge the proof or the substantiation presented by advertisers, it is necessary to support a claim with strong data, preferably issued by a third party with unquestionable competence and reputation.

Are there special rules for advertising depicting or demonstrating product performance?

There is no specific provision in the applicable regulations to demonstrate a product’s performance. However, it is necessary to observe other obligations applicable to advertisers. For example, when demonstrating a product’s performance, the advertiser should properly demonstrate results that are achievable by the product. Also, because this kind of advertising is often an indirect form of comparative advertising, the advertiser must also have tests that prove the viability of performance announced, in order to be able to defend the advertising in the event of the authorities, competitors or consumers challenging the result announced.

Are there special rules for endorsements or testimonials by third parties, including statements of opinions, belief or experience?

The National Advertising Self-Regulation Council's code specifies special rules for endorsements or testimonials by third parties. According to such regulation, there are different categories of testimonial: specialist, famous person and common person. For each category, there are specific rules and conditions to comply with.

In all cases, if the third party is contracted or in any way motivated by the advertiser to carry out an endorsement or statement, the third party should inform the consumers that the endorsement or the statement is publicity, sponsored by the advertiser.

Are there special rules for advertising guarantees?

Brazilian law establishes a mandatory guarantee to protect consumers’ rights. Consequently, if an advertiser is offering a complementary guarantee and decides to detail such benefit in its advertising, the advertiser must include the terms and conditions of the complementary guarantee in its advertisement, in order to avoid any complaints related to misleading advertising.

This information may be briefly included in the legal notice, provided that it is made available to the consumer in the owner’s manual, contract or on the advertiser’s website, depending on the case.

Are there special rules for claims about a product’s impact on the environment?

The claim should always respect all the requirements and obligations provided by the law and regulations so as not to constitute a misleading or abusive advertisement.

On the other hand, according to the applicable regulation, claims regarding sustainability must respect some especial rules, such as, among others:

• they must correspond to actual practices adopted by the advertiser;
• the broadcast information must be true, verifiable and possible to corroborate;
• the claim must be accurate and precise; and
• the claim shall be provided with supporting data and an external source endorsement.

Are there special rules for describing something as free or a free trial or for special price or savings claims?

The use of the words such as ‘free’ and ‘free trial’ or other expressions with the same meaning on marketing campaigns is permitted only when there is no actual cost to the consumer concerning the promised free product or service.

In campaigns involving the payment of expenses to be paid by the consumer, such as postal charges, freight, delivery charges, database consumption or taxes, it is necessary to specify to the consumer, in a prominent way, all the expenses involved, so that the consumer easily understands the scope and limitations of the announced benefit.

In addition, regarding special price or saving claims, is important to highlight that is very common in Brazil to sell products in instalments with or without interest. In these sorts of transactions, the advertiser must inform the consumers of the original price, the quantity of instalments and the final price. If applicable, it is also necessary to provide information regarding the interest, bank fees, expenses (total effective cost), as well as the original price and the final price to be paid by the consumer on the transaction.

Are there special rules for claiming a product is new or improved?

There is no specific rule for claiming a product is new or improved. Notwithstanding this, the claim should always respect all the requirements and obligations provided by the law and regulations so as not to constitute a misleading or abusive advertisement, especially if there is any relevant difference between the old and the new product that the consumer must be informed of.

Are there special rules for claiming where a product is made (such as country of origin)?

There are no special rules to provide, in the advertising material, the country of origin or where a product is made. The country of origin must be given in the owner manual and on the labels applied on the product, as established by specific law and regulation.

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 markets;
• food: soft drinks, juice and similar beverages;
• over-the-counter 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.

Are certain advertising methods prohibited?

Yes. Subliminal advertising and ambush marketing are prohibited.

Ambush marketing is considered to be undue and unlawful and includes methods that apply tricks or artifice, without the support of a regular agreement entered into by the lawful parties providing for a lawful object, and 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 case by case.

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 at minors (ie, children (up to 12 years of age) and teenagers (between 12 and 18 years of age)).

The most relevant regulations are the: CDC; ECA; Convention on the Rights of the Child (Decree No. 99,710/90); and the Brazilian Advertising Self-Regulation Code, which, in summary, prohibit the exploitation of the lack of judgement of the minor and the incentivisation of the consumption of goods or services.

Although it is clear 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.

It is worth mentioning CONANDA´s Resolution No. 163/2014, because CONANDA is an administrative council created to issue opinions on how other authorities should develop their activities and enforce relevant legal provisions protecting children and teenagers. Under the Brazilian Constitution terms, CONANDA does not have the power to legislate, enforce or judge any matter. Therefore, advertisers do not consider the Resolution in their marketing activities.

Exceeding the limits of its purpose and power, CONANDA issued Resolution No. 163/2014, in which it considered as abusive all advertising (or any form of marketing and communication to induce to consumption) that has children as a target and contains:

• children's language, special effects and colour excesses;
• soundtracks with children's songs or music sung using children's voices;
• representations or images of children;
• persons or celebrities that hold appeal for children;
• children's characters or presenters;
• cartoons or animations;
• dolls or similar items;
• promotions involving the distribution of prizes or collectible gifts that hold appeal for children; and
• commercial promotions using competitions or games that hold appeal for children.

The resolution even broadens the characterisation of market communication, including 'printed advertisements, television commercials, radio spots, internet banners and pages, packaging or wrapping, promotions, merchandising or product placement, initiatives acting through concerts or shows, and presentations and arrangements of products at points of sale' on their category of abusive communications for children. 

Owing to the importance of this matter, there are a few bills of law and initiatives to regulate children's advertising.

Are there special rules for advertising credit or financial products?

The advertisement shall respect the right of information of individual and institutional investors, shareholders, third parties dealing with securities, and public institutions and international bodies, with strict observance of the need to offer them the clarification necessary to enable a sensible and informed decision. 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, 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?

Over-the-counter 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 medically supervised treatment;
• not be made in a manner that results 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 towards unnecessary use of medication;
• avoid any inference associated with excessive use of the product;
• not be made so as to induce the use of products by children without parental guidance, to whom the message shall be exclusively addressed;
• not stimulate the consumer towards physical, gastronomical or alcohol excess;
• ​not show any character in dependence on the continuous use of medication as a simple solution to an emotional problem or condition related to mood;
• not induce the consumer to error concerning the content, size of package, appearance, use, speed of relief or therapeutic action of the product and its classification (similar or generic);
• 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; 
• 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;
• emphasise the use and action of the product in question. Offensive comparisons with competitors will not be permitted. Any comparison shall only be permitted when it may be easily perceived by the consumer or based on scientifically verifiable evidence. No scientific terminology with irrelevant data or statistics of doubtful or restricted validity shall be used so as to suggest a scientific basis that the product being advertised does not have; and
• not contain, under any circumstances, any offer to reimburse paid money or any other benefit of any nature for purchase of a medication due to a possible ineffectiveness.

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;
• avoid any association with pharmaceutical-medical products;
• 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; 
• correctly present the characteristics of taste, size, content, weight, nutritional and health benefits;
• avoid the exploitation of eventual benefits that might be derived from consumption of product, such more popularity, better status or social or sexual success, and better academic or sports performance;
• not demerit the role of parents, educators, authorities and health professionals concerning the correct orientation about healthy nutritional habits and other healthcare;
• when using children's characters or presenters of programmes directed at that target audience, do so only while showing the distinction between the advertising message and the editorial or programming content; 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 Brazilian Advertising Self-Regulation Code establishes a distinction between three categories of alcoholic beverages:

• those usually taken during meals, and thus called meal beverages (beer and wine);
• other alcoholic beverages, either fermented, distilled, rectified, premixed 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 case by case by a local lawyer.

As alcoholic beverages are products for restricted consumption and improper for certain public and other situations, the advertising shall be structured in a socially responsible manner, without deviating from its major purpose of promoting the brand and its features, provided that any imperative consumption appeal and the exaggerated offer of units of the product in any advertisement, either by text or image, directly or indirectly, including the slogan, shall be prohibited.

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 it will make people more successful in terms of sexuality, or insinuate an increase in virility or femininity of smokers;
• 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 the practice of Olympic sports or use Olympic sports clothing to promote its marks;
• it shall make no appeal specifically addressed to children below 18, 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 old;
• 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 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 offence 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 Evaluation, Planning, Energy and Lottery  (SECAP), 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 SECAP 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.

Relevant information:

• The promotion shall be national, state, municipal or may involve more than two cities or states. However, participation may be open to the public, from any Brazilian region; 
• respecting some limitations, the promotion may also be international; and
• foreign companies cannot be sponsors in commercial promotions in Brazil without a local branch.

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 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 Brazilian Advertising Self-Regulation Code that must be adhered to in general advertising:

• all advertising activities shall respect the dignity of human beings, privacy, social interest, institutions and national symbols, constituted authorities and family;
• no advertisement shall encourage or stimulate any type of offence or racial, social, political, religious or national discrimination;
• the advertisement shall contain nothing that may induce criminal or illegal activities – or that may encourage, stimulate or incite such activities;
• no advertisement shall contain statements or visual or audio presentations that may offend the decency standards of the audience it intends to reach;
• the advertisement shall not exploit the consumer’s credulity, lack of knowledge or inexperience;
• no advertisement shall cause fear without a relevant social reason;
• no advertisement shall exploit any type of superstition;
• the advertisement shall contain nothing that may induce violence;
• the advertisement shall contain a truthful presentation of the product being offered;
• 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;
• the advertisement shall use correct grammar and restrict the use of slang and foreign expressions, unless they are absolutely necessary to transmit the information or the intended 'climate'. However, such recommendation does not invalidate certain concepts universally adopted in the creation of advertisements and campaigns;
• 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 contributed to disfigure the legacy that we received from our ancestors;
• advertisements shall not use bad language;
• 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;
• 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;
• the advertisement shall not refer to a survey or statistic that has no identifiable and responsible source;
• the use of partial data of a survey or statistic cannot lead to distorted findings or to conclusions opposed to those that would be reached through the use of all available data; and
• the advertisement shall only use pertinent and defendable information expressed in a clear manner even for laymen.

Social media

Are there any rules particular to your jurisdiction pertaining to the use of social media for advertising?

There is no particular rule pertaining to the use of social media for advertising in Brazil. Such activity must comply with all the requirements and conditions required for any advertisement.

According to the Consumer Code, it is mandatory that all advertising material shall be published in a way that the consumer immediately identifies it as publicity (eg, with hashtags, such as #publicidade #conteudopatrocinado).

Advertising activities shall always be ostensible (indication of the service or product mark, trade name of the advertiser or use of elements clearly associated thereto are in compliance with the ostensibility requirement).

According to judicial and the National Advertising Self-Regulation Council's precedents, any post, comment or unboxing, somehow motivated by the manufacturer or by the services provider, such as sending a kit or product, must be dully indicated as advertising content:

• in the posts made for products intended for children, the indication of advertising content should be more effective;
• in the written post the disclaimer must be included in the title of the post and at the beginning and end of the timeline;
• in the videos the disclaimer should be inserted on the video, in letters and for sufficient time to be read by kids. The influencer must verbalise that the content is advertising. The disclaimer must also appear at the beginning and end of the timeline; and
• the hashtag should not contain abbreviated words. The hashtag should be used in a way that allows easy interpretation that the content of the post is advertising.

Have there been notable instances of advertisers being criticised for their use of social media?

The majority of the criticisms for the use of social media by advertisers is related to influencers, especially if it is not indicated that the content is publicity or advertising.

Are there regulations governing privacy concerns when using social media?

Law No. 12,965/14 provides the only principles to be followed in the treatment and collection of personal data over the internet or social media. There is also a specific bill in place to regulate the collection and treatment of databases on the internet.

Update and trends

Updates and trends

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

Motivated by some class associations that questioned the legality of children’s advertising, the Public Prosecutor’s Office of São Paulo (MP/SP) filed a claim against Google seeking, among other measures, the removal of several videos of underage YouTubers from the YouTube platform.

MP/SP and such associations claim that the companies exploit the children’s market illegally by using YouTubers, including underage children, as a tool to promote their products, making them act as their ambassadors, promoters or both. In order to do so, companies would send sealed toys to children so that underage YouTubers would carry out the practice known as ‘unboxing’ (ie, product unpacking) in videos with large number of views on the YouTube platform. For MP/SP and such associations, this is considered an abusive practice of advertising, as it consists of exploiting the hyper-vulnerability of children. It could be also typified as veiled advertising, that is, representing the difficulty of the receiver of the advert’s message on identifying the child YouTubers as non-advertisers, because they do not present as such. The case is ongoing without any relevant decision so far.

In December 2019, Google enter into a Conduct Adjustment Agreement with São Paulo Public Prosecutor's Office. Among the countless conducts to be adopted by Google, one of the most relevant is the joint development by Google and the National Advertising Self-Regulation Council of a manual aimed at children's advertising. The purpose is to prevent abusive practices, serving as a guide to good practice in the digital environment.

On 15 January 2020, the National Consumer Secretariat linked to the Ministry of Justice and Public Security initiated a public consultation related to a new ordinance aimed at child advertising, guided by the protection of children and teenagers, qualifying them as 'hyper-vulnerable'.

Most of the local associations are working together to try to overturn the new ordinance, as in practice it will cause even more obstruction to companies that wish to promote children's advertising, owing to more regulation on the subject, including more bodies being responsible to apply it.

Based on this scenario, despite the fact that the legislation in force does not prohibit children’s publicity, advertisers must be very careful and strategic when conducting any children's advertising campaigns with influencers and directed at minors.