ADVERTISING LIMITS IMPOSED BY THE BRAZILIAN SUPERIOR COURT OF JUSTICE
Author: Mauricio Maleck Coutinho
Reviewed by: Valdir Rocha
As recently as 2010, more than US$ 44 billion was invested in advertising campaigns in Brazil, a period during which CONAR, the Brazilian Advertising Self-Regulation Council, rendered approximately 380 decisions, restricting, in some way, 221 advertising campaigns.
In 2011, this increased to almost US$ 52 billion, but the number of decisions issued by CONAR dropped to 325, limiting 215 commercials, mostly those broadcasted on television.
As known, administrative actions against advertising campaigns can be filed with CONAR by consumers, advertisers, advertising agencies, associates and also by CONAR itself, “ex officio.”
Taking into consideration its remedial purpose, CONAR only regulates ongoing advertising campaigns, seeking to ban, for example, false or abusive advertisements.
Evidently, these decisions rendered by CONAR can be challenged in court, but, for many reasons, are usually respected and carried out by advertisers.
When an advertising campaign is no longer being broadcast — the moment from which CONAR intervention is no longer effective anymore, in view of its corrective approach —, any illegality, damage or offense should be discussed in court.
The Brazilian Superior Court of Justice, the highest Appeals Court acting as the Guardian of the non-constitutional questions of the Federal System, analyzed some of these complaints, issuing important decisions, delineating limitations to the advertising industry’s activities, concerning specific areas, notably related to the so-called “stage ads” (live ads in television shows), vehicles and tobacco.
As regards the “stage ads”, the respective host is not liable for defects of products or services advertised during the television show, the Superior Court of Justice stated while ruling in favor of special appeal No. 1.157.228, reversing, thus, a decision rendered by a State Appeals Court, by means of which a major commercial broadcasting televisionnetwork and a famous television entertainer were condemned to indemnify a misled consumer, who claimed false advertising. “The host acts as a celebrity branding and does not promise results,” reporter justice said.
Another significant ruling was related to car sales. Concealing freight charges does not make an illegal advertisement and, thus, would not be capable of deceiving consumers, if the commercial informs that such charges are not included in the car’s final price.
This is the wording of a decision issued on special appeal No. 1.057.828 and the respective reporter justice pointed out the following: “Since Brazil is a continental country, these charges may vary considerably, what can make a national advertisement almost impossible.”
Concerning tobacco, upholding some special appeals, the Superior Court of Justice reversed State Appeals Court decisions, which were granting indemnifications for damages allegedly caused by tobacco smoking.
In view of the fact that the causal link was not duly demonstrated, i.e., the connection between tobacco consumption and the claimed damages, the Superior Court of Justice rejected the indemnification claim, stating that “Statistics indicate considerable association between smoking and lung cancer, but this is not sufficient enough to configure a product liability to justify indemnifications.”
Moreover, the Superior Court of Justice mentioned that, only after 1988, warning messages on the cigarette packages and respective advertising campaigns became mandatory, despite the fact that the risks associated with smoking cigarettes have long been public knowledge.
The Superior Court of Justice rendered another decisionconcerning tobacco advertising. Cards were inserted into cigarette packages, providing consumers with information about the product and packaging changes. (Warnings and graphic images illustrating the risks of smoking occupy the 100% of the back of cigarettes packages since 2001.)
Only after buying the product, the respective consumer has access to the content of the card, reason why this card should not be considered as advertising material, so as to influence the acquisition of the products, reporter justice highlighted.
These are the main relevant decisions rendered by the Superior Court of Justice, concerning advertising rules and respective limits, to be briefly reported here.
Given that investments in advertising campaigns in Brazil are increasing significantly — what the numbers indicate —, CONAR and Brazilian Judiciary System may have more cases to be analyzed, probably with different peculiarities (in comparison to the decisions already issued by the Superior Court of Justice).
No. 1.113.804, No. 886.347 and No. 703.575.