Prohibited and controlled advertising

Prohibited products and services

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.

Prohibited advertising methods

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.

Protection of minors

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.

Credit and financial products

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.

 

Therapeutic goods and services

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;
  • ‚Äčnot 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.
Food and health

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.
Alcohol

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.

Tobacco

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.

Gambling

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.

Lotteries

What are the rules for advertising lotteries?

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

Promotional contests

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.
Indirect marketing

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.

Other advertising rules

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.