Advertising & Marketing 2021

Last Updated October 08, 2021

Brazil

Law and Practice

Authors



Inglez, Werneck, Ramos, Cury e Françolin Advogados (IWRCF) is a full-service law firm with the necessary resources to serve clients in complex projects and cases, which require professionals with business vision, broad experience and multidisciplinary expertise. At the same time, the firm offers a boutique-style service in order to guarantee personal relationships with clients and high-quality outcomes. IWRCF’s Marketing and Advertising practice assists clients in several matters involving advertisement and marketing in Brazil, including supporting the relationship between agencies and advertisers, with the drafting and negotiation of the relevant contracts; advisory and preventive support in general marketing actions (print and digital media, TV and radio); review of advertisement materials, according to applicable laws and regulations; defence of clients’ interests before the National Advertising Self-Regulation Council (CONAR) and other competent bodies; review of aspects of comparative advertisements, children’s advertisements, merchandising, brand use and other forms of advertising modalities; support in the development and carrying out of commercial campaigns (SECAP and SUSEP); offering training and workshops for employees; and providing legal opinions on legal marketing matters.

The principal statutes regulating advertising in Brazil are:

  • the Brazilian Federal Constitution;
  • the Consumer Defence Code (CDC) (Federal Law No 8,078/90);
  • the Statute of the Child and Adolescents (ECA) (Federal Law No 8,069/90);
  • Federal Law No 5,768/71 and Decree No 70,951/1972, which regulate commercial promotions and sweepstakes;
  • Federal Law No 9,294/1996, which regulates medicine, tobacco, pesticides and alcoholic beverage advertising;
  • Federal Law No 11,265/2006 and Decree No 9,579/2018, which set forth the rules concerning advertising for childcare products (ie, teats, pacifiers and bottles);
  • Federal Law No 13,874 /2019 (the "Economic Freedom Act"), which reinforces the constitutional guarantees of free initiative and freedom of commercial expression, and aims to prevent the abuse of advertising restrictions in any economic sector;
  • the Brazilian Advertising Self-Regulation Code (CBAP) of the National Advertising Self-Regulation Council (CONAR);
  • Resolution RCD No 96/08 of the National Health Surveillance Agency (ANVISA), which establishes guidelines for advertising, publicity, information and other practices related to the commercial dissemination or promotion of medicines; and
  • the Ministry of Agriculture, Livestock and Supply (MAPA), which regulates specific regulatory rules for label claims.

The bodies responsible for issuing advertising regulations in Brazil are CONAR and the government itself, represented by the House of Representatives and the Senate, besides federal, state or local administrative bodies.

CONAR is a self-regulatory agency formed by the associations that represent 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 administrative consumer protection agencies, as well as the Public Prosecutor, also have the authority to enforce advertising rules through administrative or judicial procedures.

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

By law in Brazil, companies are responsible for the actions of their owners, shareholders, directors, managers and agents ("representatives"). However, in the event of an abuse of power or misuse of purpose, the administrators themselves may also be held liable for the damages caused by their actions or decisions.

That said, with regard to liability for advertising content, the CDC establishes that the burden of proof regarding the veracity and correctness of advertising rests with those who sponsor it. CONAR, on the other hand, establishes that the liability for advertising rests with the advertiser, the agency and the vehicle (in the final case with reservations, depending on the circumstances).

There is a current doctrine under which the advertiser is solely liable for the damage caused by advertising. A second doctrine provides that agencies and broadcasters/platforms can also be held liable in the case of misconduct or fault. There is also a minority viewpoint that contends that actors/influencers should also be held responsible.

As a rule, the Superior Tribunal of Justice (STJ) understands that the liability lies with the advertiser; however, there are specific precedents where the agency and even the broadcaster were also held liable by the STJ.

CONAR is a self-regulatory agency created by representatives of the private sector to regulate, monitor and decide on matters related to advertising.

To conduct its activities and to guide the market, CONAR published the Brazilian Advertising Self-Regulation Code (CBAP), which sets the rules and principles that should guide ethical advertising in Brazil.

The proceedings before CONAR may be filed based on consumers’ complaints, on a representation brought by a competitor (the company must be an associate member of CONAR) and by CONAR itself.

CONAR’s trial process is composed of three instances and its decisions are rendered in a short period of time, usually 60 days. The first instance is responsible for receiving and judging the case. The court of appeal is responsible for reviewing the decision of the first instance and, if the formal requirements are met, the third and final instance is responsible for solving any conflict of understanding of the second-instance judges or errors contained in the decision.

It is worth mentioning that similarly to judicial procedures, CONAR may grant injunctions to suspend advertising. Notwithstanding this, they are not commonly granted.

Since CONAR is a self-regulatory body, it does not have the authority to impose fines or determine the payment of any indemnifications. The penalties available to CONAR are:

  • a warning to the advertiser and its agency, or to an influencer or celebrity who was hired for advertising/marketing purposes;
  • a recommendation to modify or correct the advertisement;
  • a recommendation to broadcasters to suspend the displaying of the advertisement; and/or
  • a public notice to the broadcasters announcing CONAR’s position regarding the non-compliance with the steps and measures determined by it.

Advertising practices can be challenged by any consumer before the judiciary or CONAR.

If the consumer is interested in repairing the damage caused by the misleading or abusive advertising, the claim must be filed with the judiciary. In cases where the consumer only has an interest in suspending the advertising (not having damages repaired), they can file a simple complaint on the CONAR portal. If CONAR believes that the claim has merit, an investigation will be initiated to examine the irregularity of the advertising questioned by the consumer.

Consumer Protection Bodies

Besides consumers (the general public), advertising can be challenged by consumer defence bodies (eg, the Public Attorney’s Office, PROCON, SENACON and CONAR) on behalf of society or individual consumers.

There are several market sectors that are subject to specific laws and regulations in Brazil.

CBAP

CBAP and other applicable legislation have specific regulations for 22 different categories of product or services, such as:

  • education;
  • real estate;
  • food and beverages;
  • tobacco;
  • alcoholic beverages;
  • firearms;
  • doctors, dentists, veterinarians and other health-related professionals;
  • vehicles; and
  • testimonials, attestations and endorsement.

Examples of applications of the regulations include the following.

  • Advertising campaigns for alcoholic beverages:
    1. cannot explore sexuality;
    2. must use actors who appear to be more than 25 years old; and
    3. 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.
  • Tobacco advertising is virtually banned.

Additional Sector-Specific Legislation and Regulation

One of the laws also regulating advertising, Law 9294/96, refers to the advertising of medicine, tobacco, therapies, pesticides and alcoholic beverages. This law establishes how the advertising of these products should be done, including the use of warnings and restrictions on locations and events where they may be displayed, besides establishing specific penalties.

There are several resolutions issued by ANVISA to regulate advertising, publicity, information and other practices whose objective is the commercial dissemination or promotion of medicines; advertisements and communication related to lactose, gluten and dietary supplements; and the labelling of products; among others.

Finally, beer, gin and other alcoholic beverages must also comply with MAPA’s regulations for labelling.

The most important legal and regulatory trends and cases in Brazilian advertising and marketing in the past 12 months are set out below.

  • Discussions related to advertising of products and services aimed at children and adolescents are frequent; recently, the Bahia State Prosecutor’s Office (MP-BA) initiated an inquiry into nine companies to investigate possible illegal advertising aimed at children on YouTube.
  • PROCON identified 114 cases of misleading advertising at gas stations in 2021 regarding the advertised prices per litre of gasoline, ethanol or diesel, which confused customers.
  • The STF judged State Law No 13,582/16 of Bahia to be constitutional – this law prohibits advertising aimed at children of foods and beverages that are poor in nutrients and which have a high sugar content, in the classroom and at certain times on radio and TV.

CONAR has published a Technical Note in order to regulate advertising of products and services that make reference to the COVID-19 pandemic. The Technical Note was aimed at advertising of pharmaceutical products, food supplements and cleaning products.

Due to the uncertainties related to COVID-19, in summary, the Technical Note recommended companies in the pharmaceutical and food supplement segment not use claims of cure, treatment or prevention until scientifically validated procedures for such claims had been presented by the authorities.

For cleaning products, the Technical Note establishes that all claims must have technical proof and be aligned with the indications and warnings recommended by the health authorities.

CONAR and the consumers protection bodies (see 1.5 Private Right of Action) were quite diligent in combating abusive or misleading advertising that exploited the COVID-19 pandemic, in particular advertisements that exploited the fragility or lack of knowledge of consumers.

Misleading advertising is any advertisement that, expressly or by omission, is entirely or partially false or is in any way capable of inducing the consumer to make a mistake regarding the nature, characteristics, quality, quantity, properties, origin, price or any other information about the advertised products and/or services.

Abusive advertising is that which:

  • has a discriminatory nature;
  • incites violence or exploits fear or superstition;
  • takes advantage of a child’s lack of judgement or experience;
  • disrespects environmental values; or
  • may cause the consumer to behave in a way that will bring harm to their health or safety.

The CDC (Federal Law No 8,078/90) does not foresee specific claims regarding advertising, nor implicit ones. However, CBAP and the applicable legislation have specific regulations for different categories of product or people, as detailed in 1.6 Regulated Industries.

In addition, 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.

Despite this, CONAR has already recognised in a few cases that some claims can be considered as puffery. According to such decisions, puffery exists in cases of exaggerated or even playful expressions that do not mislead the consumer by any means.

The advertiser must have proof of the advertisement’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 made in the advertisement. However, the proof must be duly substantiated by studies, public information or be issued by a third party with recognised expertise.

There are no provisions in the law, nor in the regulations, relating to special types of proof. However, since 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 of unquestionable competence and reputation.

There is no specific Brazilian Law that requires human clinical studies for certain types of advertising. Nevertheless, considering that by law every claim must be duly substantiated, in the cases where advertising promotes health benefits, the advertiser must have the necessary studies to prove the result highlighted in its campaign, which may involve testing human beings, depending on the case and the sector involved.

Environmental Claims

A claim related to the environment should always respect 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 specific 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.

"Free" and "Special Price" 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, data 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, it 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" cost.

Comparative advertising is regulated by CONAR (Article 32 of the CBAP). The main purpose of comparative advertising should be the dissemination of relevant information to consumers. Therefore, among other requirements, a comparative advertisement should be objective and respectful.

There is an important debate regarding the right to use a competitor’s brand or products in comparative publicity, both protected by the Industrial Property Law.

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

Such precedents allow companies to compare their products/services with their competitors’ products/services, even identifying the competitors’ brands.

Briefly, the main objective of comparative advertising must be the dissemination of relevant information to the consumer. Also, the advertising must be objective and supported by technical data. Subjective or emotional data is not valid to support comparative advertising. The comparison must be made between products that are comparable to each other, of similar values and of the same manufacturing period.

The advertising must also comply with the Intellectual Property Law, in particular when exploring competitors’ products and brands and cannot denigrate the competitor’s brand or image.

A comparative advertisement can be challenged through both CONAR and the courts.

The disputes before CONAR are faster; however, it is not possible to seek indemnification through its procedure. The penalties applied by CONAR are, warning, modification of publicity, suspension of publicity or the disclosure of a public notice announcing that the company does not respect the rules of ethics in advertising.

A lawsuit through the courts is more time-consuming and more costly. However, it also allows indemnification and/or recognition of the practice of unfair competition to be sought (Federal Law No 9279/96).

In both jurisdictions, it is possible to request an injunction for the immediate suspension of the advertising in question.

At the end of 2020, CONAR launched the Digital Influencer Advertising Guidelines, which consist in practical guidelines with best practices for digital influencers on social media.

The Guidelines contain instructions on how to apply the rules of the CBAP to commercial content on social media, in particular, content generated by users known as digital influencers or influencers or even reposts (for more information related to the Guidelines, see 5. Influencer Campaigns).

Also, CONAR has issued a Technical Note establishing that influencers’ advertisements must indicate the use of filters in images. The following disclaimer must be inserted, if this is the case: "retouched photograph to modify the physical appearance of a person".

By law, the content of any advertising binds the advertiser. Therefore, if the influencer makes an offer with an error – for example, with a price lower than the one actually available in practice – the advertiser will have to comply with the offer.

In this regard, one of the biggest challenges for advertisers is not only to instruct influencers to comply with the applicable law and CONAR’s guides and regulations but also to monitor and timely correct any misleading or abusive posts made by contracted influencers, including those made spontaneously (out of scope) during the broadcast of the contracted campaign.

If an advertiser's platform is an open channel for dialogue with consumers, considering the constitutional right to freedom of expression, there are strong arguments to maintain that the advertiser is not responsible for third-party content.

However, the advertiser must monitor and exclude any illegal content or content that may constitute misleading or abusive information (these limits must be established in the terms and conditions of the platform).

If an advertiser's platform is aimed at advertising its products or services, the third-party content posted there will be interpreted as advertising, making the advertiser liable for the content.

The disclosure requirements applied to advertising in traditional platforms also apply to all digital platforms.

If there are space limitations or constraints on the platform, a shortcut must be inserted to direct the consumer to the advertiser's website, where all applicable disclosures must be duly included for the consumer's consultation.

The use of social media must comply with the rules and laws in force in Brazil.

The main laws that have an impact on social networks are the Civil Rights Framework for the Internet (Federal Law No 12,965/2014), the General Personal Data Protection Law or LGPD (Federal Law No 13,709/2018, the Civil Code (Federal Law No 10,406/2002), the Penal Code (for crimes of libel, defamation and insult), and the Intellectual Property Law (Federal Law No 9,279/96).

Native advertising must comply with the CDC and CONAR's rules. Both regulations establish that “publicity must be shown in a way that the consumer will easily and immediately identify it as such”.

Therefore, native advertising shall have a disclaimer or hashtag indicating that the content is publicity.

As mentioned in 4.1 General Requirements, CONAR has published Digital Influencer Advertising Guidelines.

In addition, the COVID-19 pandemic saw a significant rise in influencer campaigns, especially through advertising actions and live broadcasts. This market registered a 20% increase in campaigns carried out for brands during the period, as well as 130% growth in the total amount of fees paid to content creators compared to the year 2019, according to data from the magazine Press.

In accordance with the Digital Influencer Advertising Guidelines published by CONAR, there is a difference between advertising by influencers and activated messages.

Advertising by influencer occurs when the following cumulative elements, which are necessary to characterise an advertisement, exist:

  • promotion of the product, service, cause, or other associated sign;
  • compensation or a commercial relationship, even if non-financial, with the advertiser and/or agency; and
  • the advertiser or agency’s interference in the content of the message (editorial control of the influencer’s post).

Activated messaging occurs when a user refers to a product, service, cause, or other associated characteristic because of a connection or non-compensatory benefit offered by the advertiser and/or agency, and without that advertiser's or agency's editorial control. For instance, appreciation posts, thanks for products/services (“gifted”/“received”), trips, accommodation, experiences or invitations.

In order to configure a correct and Guidelines-following digital influencer advertisement, and to respect the principle of transparency, it is fundamental to clarify the situation that applies in the relevant posts. The Guidelines set forth the expressions that are recommended (clear expression).

  • Influencer advertising: #advertising, #advertisement, #sponsored, #paid content and #paid partnership.
  • Activated messages: #gifted/#received (trip/show/event), invited by (brand), thanks to (brand) for (product, trip, invitation), #promotion, #promo (activations upon gifts or prize).

In addition, terms in a foreign language (ie, hashtags) are not recommend, however the analysis of the situation will depend on the context, segment and subjects approached by the influencer.

An advertiser may be held liable for the content posted by the influencer when there is a relationship between the parties (influencer and advertiser), as detailed in 5.2 Special Rules/Regulations on Influencer Marketing Campaigns.

Regarding the duty to monitor, the advertiser does not have an obligation established in law or regulation; however, eventual monitoring is recommended, in order to verify if the influencer is fulfilling its contractual obligations.

With regard to the laws and regulations applicable to advertising, it is legal to send marketing emails to promote a company's products and services. The CDC, however, establishes general consumer protection rules that prohibit abusive marketing.

Furthermore, such activity shall comply with the Self-Regulatory Code for Email Marketing Practices (CAPEM).

It is worth emphasising that the advertiser must also comply with the LGPD, providing the proper channels and tools for the consumer to consult, change or even cancel the use of their personal data for advertising purposes.

Non-compliance with the applicable laws and regulations may lead to the application of substantial fines or indemnifications.

Regarding the laws and regulations applicable to advertising, it is legal to perform telemarketing to promote a company's products and services.

It should be borne in mind, however, that the National Telecommunications Agency (ANATEL)'s Resolution No 632/2014 (General Regulation of Consumer Rights of Telecommunications Services) gives telephone, pay TV and internet services consumers the right not to receive advertising messages on their mobiles.

Furthermore, some Brazilian’ states have enacted local laws whereby the consumer protection bodies have implemented a platform to inform advertisers that a consumer has registered their telephone number to not receive marketing calls. Any call to promote a product or service to a registered consumer will lead to a fine.

Advertisers must also comply with the LGPD, providing the proper channels and tools for the consumer to consult, change or even cancel the use of their data for advertising purposes.

Non-compliance with the applicable laws and regulations may lead to the application of substantial fines or indemnifications, in addition to the other penalties provided for in the CDC.

Following the same line of reasoning that applies to telemarketing (see 6.2 Telemarketing), text messaging for marketing purposes is legal, but must comply with ANATEL's Resolution No 632/2014 (General Regulation of Consumer Rights of Telecommunications Services), which requires the consumer’s previous consent.

The advertiser must also comply with the LGPD, providing the proper channels and tools for the consumer to consult, change or even cancel the use of their data for advertising purposes.

Non-compliance with the applicable laws and regulations may lead to the application of substantial fines or indemnifications, in addition to the other penalties provided for in the CDC.

As discussed throughout 6. Privacy and Advertising, it is legal for advertisers to send advertising material throughout different formats (principle of legitimate interest).

However, the right to send advertising is different from the right to process consumer data. In order to process data for advertising, it is necessary to obtain the consumer’s express consent, as a rule, through an opt-in on the advertisers' platform or by opting in to the cookie policies.

The advertiser must provide the appropriate channels and tools to consumers to consult, change or even cancel the use of their data for advertising purposes (LGPD requirements).

Failure to obtain express consent to process the consumer data or to comply with the other LGPD provisions may lead to substantial fines, in addition to the other penalties provided for in the CDC.

The CDC, the Child and Adolescent Statute (ECA) and CONAR have specific provisions for advertising products to children and adolescents.

The ECA establishes that children are considered to be persons under the age of 12, and an adolescent is a person between 12 and 18 years of age.

The LGPD has a specific chapter dealing with the treatment of data of children and adolescents. According to the law, data processing may be carried out with the consent of a parent or legal guardian.

Failure to comply with the laws applicable to children's advertising or the LGPD may lead to significant fines and compensation, in addition to the other penalties provided for in the CDC.

At the end of 2018, Federal Law No 13.756/2018 was issued, granting exclusive powers to the Ministry of Finance (now known as the Ministry of Economy), specifically to the Secretary of Evaluation, Planning, Energy and the Lottery (SECAP) to analyse, authorise and supervise commercial promotions (ie, raffles or raffle-like contests, instant win contests and contest-like games), including philanthropic sweepstakes, which powers were previously shared with the Brazilian Central Bank (BACEN).

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

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

In addition, sweepstakes authorised by SECAP can require or request the making of a purchase in order to participate, depending on the intended mechanism.

Under Federal Law No 5768/71, Decree No 70951/72, the Ordinance of the Ministry of Treasure No 41/2008 (which regulates the free distribution of prizes as advertising) and the Ordinance of the Ministry of Treasure No 422/2013 (which identifies which elements could qualify a promotion as a skill or game contest – without registration) there is a distinction between contests of skill and games of chance.

However, contests of skill – as well as solely cultural, artistic, sporting or recreational contests – are an exception by law and it is not necessary to obtain authorisation from SECAP for them, in accordance with the Ordinance of the Ministry of Treasure No 422/2013.

In this situation, the cultural contest must not promote the sponsor’s brand, goods or services in any way, and must fulfil 12 further requirements set forth in applicable regulation. For this reason, it is currently difficult to implement these kinds of contests and it is extremely important to analyse them on a case-by-case basis.

Finally, if a cultural contest does not meet the requirements established by law, it must be preceded by authorisation from SECAP and be converted into a sweepstake.

All sweepstakes that involves luck, raffles, instant wins with limited stock, contests, or similar operations must be authorised in advance by SECAP through its web portal.

Authorisation must be requested at least ten seven to ten business days before the sweepstakes starts and the supervisory fee must be collected, according to the value of the promotion prizes.

After the appointed day for announcing the winner set forth in the sweepstakes terms and conditions, income tax (upon the total value of the prizes at a rate of 20%) must be collected.

Finally, the statement of account must be reported to SECAP, in accordance with the following terms:

  • delivery of prizes – 30 days after the appointed day for announcing the winner; or
  • non-delivery of prizes – 255 days after the appointed day for announcing the winner and, in such cases, it is necessary to hand over the value of the prizes to the Federal Union.

There is no specific law nor regulation applicable to loyalty programmes. This type of programme, however, does not need SECAP's authorisation.

Regulation of free or reduced-price offers, such as “buy one, get one free”, are set forth in the Informative Note No 11/2018, which establishes that prior registration with SECAP is mandatory when there is a free distribution of prizes with product's stock limitation or a fixed amount of prizes.

The CDC establishes that sending or delivering products or providing services to consumers, without prior request is an abusive practice (Article 39, III, CDC).

Nevertheless, as long as this situation – automatic renewal – is contractually set forth between the parties and there is a possibility for the consumer to waive this obligation, it is allowed.

Gambling and betting activities are generally prohibited in Brazil, except for state-run lotteries and horse races. Likewise, games of chance are legally defined as a criminal offence in Brazil (eg, roulette, jackpot and bingo).

Poker, however, is considered to be a sport, not a game of chance, and is therefore legal.

The Federal government has enacted Decree-Law 13,756/2018, with the objective of legalising sports betting. The Decree is still awaiting regulation to establish the rights and obligations of companies that will explore this activity.

There is no specific regulation of the advertising and marketing of sports betting or gambling.

As mentioned in 8.1 Legality/Regulatory Framework, the Federal government has enacted Decree-Law 13,756/2018, with the objective of legalising sports betting. The Decree is still awaiting regulation to establish the rights and obligations of companies that will explore this activity.

There is no specific regulation of the advertising and marketing of cryptocurrency or NFTs in Brazil.

Advertisers must comply with general advertising laws and Securities and Exchange Commission regulations, if applicable.

Inglez, Werneck, Ramos, Cury e Françolin Advogados

Av. Eng. Luís Carlos Berrini, 105
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São Paulo/SP
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+55 11 4550 5002

lwerneck@iwrcf.com.br www.iwrcf.com.br
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Trends and Developments


Authors



Inglez, Werneck, Ramos, Cury e Françolin Advogados (IWRCF) is a full-service law firm with the necessary resources to serve clients in complex projects and cases, which require professionals with business vision, broad experience and multidisciplinary expertise. At the same time, the firm offers a boutique-style service in order to guarantee personal relationships with clients and high-quality outcomes. IWRCF’s Marketing and Advertising practice assists clients in several matters involving advertisement and marketing in Brazil, including supporting the relationship between agencies and advertisers, with the drafting and negotiation of the relevant contracts; advisory and preventive support in general marketing actions (print and digital media, TV and radio); review of advertisement materials, according to applicable laws and regulations; defence of clients’ interests before the National Advertising Self-Regulation Council (CONAR) and other competent bodies; review of aspects of comparative advertisements, children’s advertisements, merchandising, brand use and other forms of advertising modalities; support in the development and carrying out of commercial campaigns (SECAP and SUSEP); offering training and workshops for employees; and providing legal opinions on legal marketing matters.

Digital Influencers in Brazil and the New Legal Trends

  • Can I reply to third-party content on the company's social media?
  • If so, do I have any liability?
  • Yes, you do!

Based on the principle of advertising identification, it is mandatory that all advertising material is published in such a way that the consumer immediately and easily identifies it as advertising, as set forth in Article 36 of the Consumer Protection Code (CDC) and Article 28 or the Brazilian Advertising Self-Regulation Code (CBAP).

In addition, in line with the global trend to regulate influencer advertising, at the end of 2020, the Brazilian Advertising Self-Regulation Authority (CONAR) launched its Digital Influencer Advertising Guidelines (Guidelines), which consist in practical guidelines with best practices for digital influencers on social media.

The Guidelines contain key instructions on how to apply the rules of the CDC and CBAP to commercial content on social media, in particular, content generated by users known as digital influencers as well as ordinary consumers.

Advertising by influencers and "activated" messages

As a rule, the relationship between the advertiser and influencer takes two different forms. The first is through a formal relationship where the advertiser and the influencer work together to create and promote the advertising material. The second is through engagement actions where the advertiser sends, for example, products, samples or invitations to experiences or events in the expectation that the influencer will make a post or comment about the company's product, services or brand.

To accommodate these two different practices, the Guidelines have created two categories for advertising promoted by influencers: (i) advertising by influencer and (ii) "activated" messages.

Advertising by influencer occurs when the following cumulative requirements are met:

  • promotion of the product, service, cause, or other associated sign;
  • compensation or commercial relationship, even if non-financial, with the advertiser and/or agency; and
  • the advertiser's or agency’s interference in the content of the message (ie, editorial control of the influencer’s post).

Activated messaging occurs when the user or influencer makes reference to a product, service, brand or other characteristic sign motivated by an advertiser's engagement action (eg, gifts, samples, free meals, invites to events, test drives, etc) without any additional compensatory benefit or editorial control by the advertiser and/or its agency.

In order to meet the transparency requirements established by law and regulations, the Guidelines provide different disclaimers or expressions to distinguish these activities and allow consumers to easily identify advertising by influencers and “activated” messages. Below are examples of the proper disclaimers.

  • Influencer advertising – #advertising; #advertisement; #sponsored; #paid content; #paid partnership.
  • Activated message – #gifted/#received (trip/show/event) invited by (brand); thanks to (brand) for (product, trip, invitation); #promotion/#promo (activations upon gifts or prize).

In addition, terms and expressions in a foreign language (eg, in "hashtags") are not recommended. The expressions, disclaimers and hashtags should be in Portuguese. The use of different expressions may be accepted depending on the context, market sector and approach taken by the influencer.

Since the review and approval of disclaimers is subject to the judgment of a particular CONAR Councillor, which may vary from person to person, we recommend advertisers and influencers to apply the expressions mentioned by the Guidelines.

The treatment of spontaneous (unsolicited) posts

Having clarified the regulatory treatment of hiring or activating posts, another question arises. How to treat those spontaneous posts that were not prompted/motivated by, and do not have the participation of, the advertiser and/or agency?

According to the Guidelines, when a social media user, influencer or not, spontaneously mentions a product, service, trade mark and/or characteristic sign without any influence, interaction, communication or contact from the advertiser and/or agency, the post shall not be considered as an advertisement and the advertiser will not be held liable.

However, when an advertiser or its agency decide to share or repost users’ spontaneous messages on their own social media profiles and official channels, such practice will be considered as an autonomous promotion. As such, it will be subject to all applicable CBAP rules and laws, and will need to be identified as advertising.

It is worth highlighting that the use of spontaneous posts must take into account the authors’ and personal rights. Based on the Guidelines, if the post does not contain hashtags or tags making reference to the relevant product or brand, the advertiser or agency should not repost it.

There is another point to be considered pursuant to the user's personal right: whether there is consent for reposting. Even though this matter is not dealt with expressly in the Guidelines, there is discussion related to the absence of consent and infringement of the users' personal right. In this scenario, it is advisable for the advertiser or agency to obtain the user's authorisation to use the content in question.

Finally, CONAR has introduced a new and important concept relating to influencer marketing: advertisements made by influencers must indicate if filters were applied to the images. The following disclaimer must be inserted: "retouched photograph to modify the physical appearance of a person".

Inglez, Werneck, Ramos, Cury e Françolin Advogados

Av. Eng. Luís Carlos Berrini, 105
17th floor
Berrini One Bldg.
São Paulo/SP
04571-010
Brazil

+55 11 4550 5002

lwerneck@iwrcf.com.br www.iwrcf.com.br
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Law and Practice

Authors



Inglez, Werneck, Ramos, Cury e Françolin Advogados (IWRCF) is a full-service law firm with the necessary resources to serve clients in complex projects and cases, which require professionals with business vision, broad experience and multidisciplinary expertise. At the same time, the firm offers a boutique-style service in order to guarantee personal relationships with clients and high-quality outcomes. IWRCF’s Marketing and Advertising practice assists clients in several matters involving advertisement and marketing in Brazil, including supporting the relationship between agencies and advertisers, with the drafting and negotiation of the relevant contracts; advisory and preventive support in general marketing actions (print and digital media, TV and radio); review of advertisement materials, according to applicable laws and regulations; defence of clients’ interests before the National Advertising Self-Regulation Council (CONAR) and other competent bodies; review of aspects of comparative advertisements, children’s advertisements, merchandising, brand use and other forms of advertising modalities; support in the development and carrying out of commercial campaigns (SECAP and SUSEP); offering training and workshops for employees; and providing legal opinions on legal marketing matters.

Trends and Development

Authors



Inglez, Werneck, Ramos, Cury e Françolin Advogados (IWRCF) is a full-service law firm with the necessary resources to serve clients in complex projects and cases, which require professionals with business vision, broad experience and multidisciplinary expertise. At the same time, the firm offers a boutique-style service in order to guarantee personal relationships with clients and high-quality outcomes. IWRCF’s Marketing and Advertising practice assists clients in several matters involving advertisement and marketing in Brazil, including supporting the relationship between agencies and advertisers, with the drafting and negotiation of the relevant contracts; advisory and preventive support in general marketing actions (print and digital media, TV and radio); review of advertisement materials, according to applicable laws and regulations; defence of clients’ interests before the National Advertising Self-Regulation Council (CONAR) and other competent bodies; review of aspects of comparative advertisements, children’s advertisements, merchandising, brand use and other forms of advertising modalities; support in the development and carrying out of commercial campaigns (SECAP and SUSEP); offering training and workshops for employees; and providing legal opinions on legal marketing matters.

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