Prohibition of advertising to children and restrictions to advertising to teenagers in Brazil

Citation

Delgado, R. and Mine, L. (2008), "Prohibition of advertising to children and restrictions to advertising to teenagers in Brazil", Young Consumers, Vol. 9 No. 4. https://doi.org/10.1108/yc.2008.32109dab.001

Prohibition of advertising to children and restrictions to advertising to teenagers in Brazil

Article Type: Legal briefing From: Young Consumers, Volume 9, Issue 4

Advertising to children and teenagers in Brazil has always been extensively regulated. Brazil will migrate from significant restrictions to a total ban of advertising to children if the National Congress approves Bill of Law 5,921/2001.

Bill of Law 5,921/2001 was approved on July 9, 2008 by the Consumer Defense Commission in the House of Representatives, which made significant changes to its original version. Initially, Bill of Law 5,921/2001 proposed to add a paragraph to Article 37 of the Brazilian Consumer Defense Code (Código Brasileiro de Defesa do Consumidor – “CDC”) prohibiting any type of advertising aiming at promoting the sales of products destined to children only. On the grounds that this would make the CDC too specific, the Consumer Defense Commission proposed to turn Bill of Law 5,921/2001 into an independent and autonomous law, rather than an amendment to the CDC.

The Consumer Defense Commission discussed two replacements for Bill of Law 5,921/2001. In 2006, the Congresswoman assigned proposed the first amendment to Bill of Law 5,921/2001 which consisted of prohibiting any advertising to children and teenagers (especially on radio, television and in the internet) between 7 a.m. and 9 p.m. In 2008, the Consumer Defense Commission approved the second amendment to Bill of Law 5,921/2001, this time proposing the total ban of “marketing communications” to children at any time and by any means; and setting out principles and restrictions for marketing communications to teenagers.

The current version of Bill of Law 5,921/2001

The approved amendment defines marketing communications as “any commercial activity to disseminate products or services, regardless of the support, media vehicle or means used”. According to the text, advertising and marketing communication directed to children is that which, among others, uses the following attributes: childish language, special effects and excessive colors; soundtracks of children’s songs or sung by children’s voices; representations of children; people or celebrities with appeal to children; child characters or hosts; cartoons or animations; dolls or similar; promotion with distribution of prizes or collectible gifts or items appealing to children; and promotions with competitions or games appealing to children.

The proposed amendment forbids any type of advertising or marketing communication on TV, internet and radio 15 minutes before, during and 15 minutes after children programs or programs whose audience is composed mainly of children.

It also forbids the participation of kids in any kind of publicity or marketing communications, except public utility campaigns on proper nutrition, safety, education, health, among other aspects relating to child development.

Article 5 of Bill of Law 5,921/2001 considers abusive certain conducts in advertising and marketing communications directed to teenagers. Most of these conducts are already deemed inappropriate by existing rules. When defining children and teenagers, the proposed amendment refers to Article 2nd of the Children and Teenagers Statute (“CTS”), according to which children are those up to 11 years of age and teenagers, those between 12 and 18 years of age.

The general principles of advertisements aimed at children and teenagers foreseen in Bill of Law 5,921/2001 are in essence the same already foreseen in the Code of Self-Regulated Advertising which was created by the National Council of Advertising Self-Regulation (Conselho Nacional de Auto-Regulamentação Publicitária – “CONAR”). According to these principles, when advertising to children and teenagers in Brazil, one must:

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  respect their psychological characteristics;

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  respect their naivety, dignity and beliefs as well as their inexperience and loyalty;

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  not suggest that they are inferior to other children and teenagers in case the advertised product is not bought; and

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  not stimulate condemning or illicit behavior, violence or environmental degradation etc.

When justifying the reasons for the proposed amendments to Bill of Law 5,921/2001, the Consumer Defense Commission states that the existing legislation in Brazil and the ethical principles established by CONAR would suffice to protect children and teenagers as far as advertising is concerned. The Commission, however, argues that the problem is that the existing rules are not always respected and complied with.

Once and if Bill of Law 5,921/2001 is approved by the National Congress, non-compliance with its impositions will trigger fines, prohibition of advertising and counter advertisement. The Bill provides that the product supplier, the advertising agency and the media vehicle will be held jointly liable, regardless of fault. Joint liability was already a possibility under Brazilian consumer rules.

Bill of Law 5,921/2001 is still pending analysis and approval by the Economic, Industrial and Commercial Development Commission (CDEIC) and the Science, Technology, Communication and Information Commission (CCTCI). Upon analysis, and approval by those commissions, Bill of Law 5,921/2001 will be forwarded to the Commission of Constitution, Justice and Citizenship for definition of its final version. Then the final text should be sent to the Senate for final approval. There is no deadline for the analysis of Bill of Law 5,921/2001 by each commission, therefore, it is not possible at this point to predict how long it will take until the Bill is finally approved or rejected. We should probably not expect this to happen this year.

Previous rules regarding advertising to children

Provisions regulating advertising to children and teenagers are not an innovation in Brazil. They are mainly found in the Brazilian Federal Constitution (“BFC”), in the CDC, in the CTS and in specific rules and regulation, such as those issued by CONAR and the International Code of Advertising Practices (Código Internacional da Prática Publicitária).

The BFC ensures numerous rights to children and teenagers such as the right to life, health, nourishment, education, dignity, respect and protection against any harm. Enforceability of those rights is made also through restrictions to advertising. These limitations can be generically found in the CDC, which has established various principles applied to advertising (e.g., prohibition of misleading and abusive advertising.)

The CTS provides additional rules protecting the rights of children and teenagers. Among them are restrictions regarding written warnings when selling inappropriate material and also respect to the ethical values of the individual and the family.

Another relevant source is CONAR, a private organization created by a few Brazilian media associations which sets out rules and recommendations on advertising. Some obligations foreseen in CONAR’s Code of Self-Regulated Advertising were incorporated in Bill of Law 5,921/2001 as general principles. The Code also provides for several restrictions such as prohibition of children or teenagers in advertising of alcoholic beverages, pesticides and guns.

Implications deriving from Bill of Law 5,921/2001

Restrictions on advertising to children and teenagers in Brazil are not something new since quite a few laws aim at protecting their rights. The main – and certainly most polemic – innovation proposed by Bill of Law 5,921 is the actual ban of advertising to children.

As stated above, the justifications presented by the Consumer Defense Commission argue that the existing Brazilian legislation satisfactorily protect the rights of children and teenagers, but have not proven to be sufficient because they are mainly composed of general principles which are many times disregarded.

The question to be answered is whether the total ban of advertising to children is the appropriate response to the alleged non-compliance of the existing laws.

One may argue that Bill of Law 5,921 is unconstitutional on the grounds that under Article 5th, IX of BFC, all individuals are entitled to freedom of expression and communication and that the existing laws and regulations already protect the rights of children and teenagers. Therefore, Bill of Law 5,921 would represent an overprotective and unreasonable measure that would violate the constitutional rights of free initiative and freedom of expression.

It will be interesting to see how the population in population in general, including manufacturers, advertising agencies and the media vehicles, will react to Bill of Law 5,921.

Rosângela Delgado, Lívia MinéVeirano e Advogados Associados, Attorneys-at-law, Brazil. Published in conjunction with the Global Advertising Lawyers Alliance (www.gala-marketlaw.com). GALA is an alliance of lawyers located throughout the world specializing in advertising law.