Advertising and Marketing 2024 Comparisons

General Rules: The Consumer Defense Code (CDC or Law 8078/90)

The CDC is the main law governing advertising and marketing in Brazil, being applicable to all sectors and products. Broadly speaking, the CDC:

• prohibits deceptive advertising (Articles 37.1 and 37.3) and abusive advertising, understood, inter alia, as discriminatory messages that exploit fear or superstition, violate environmental rules or take advantage of children’s less developed judgement and naivety (Article 37.2);
• establishes that all advertising must be immediately and easily identified as such (principle of identification forbids hidden advertising – Article 36); and
• requires the supplier to keep any factual, technical and scientific data that support ads (Article 36, sole paragraph) – the burden of proof is always on the advertiser (Article 38).

Specific Sectors

There are certain sectors that are also governed by specific regulations; see 10.1 Regulated Products.

“Clean City” Law

In São Paulo and some other municipalities, there are advertising bans on out-of-home advertising (OOH) and the use of rooftops and building sides, cars, buses, motorcycles and bicycles (Law 14223/2006 and Decree 47950/2006). Advertisements in or on urban properties, despite being permitted, must follow restrictive regulations.

Economic Freedom Act

Law 13874/2019 prohibits the so-called “abuse of regulation” by the state. Article 4, applicable to advertising, aims to prevent the abuse of restrictions on advertising in any economic sector, except in cases expressly regulated by federal law.

Self-Regulation (Brazilian Advertising Self-Regulation Council (CONAR))

The Brazilian Advertising Self-Regulation Code (CBAP), edited and applied by CONAR, details advertising limits for the different economic sectors.

In 2021, CONAR issued the Digital Influencer Advertising Guidelines (the “Guidelines”), which contain instructions on the application of the rules of the CBAP to commercial content on social media, in particular content generated by digital influencers.

CONAR also launched good practice guidelines for online advertising aimed at children and issued a few technical notes on:

• proposed warnings for the use of filters in advertisements;
• advertising of products and services making reference to COVID-19; and
• true representation of promotions on packaging and point-of-sale materials.

In Brazil, advertising supervision may be performed either by federal, state or local administrative bodies (CDC Articles 55 and 82 and Decree 2181/97).

Considering the purview of sanctioning, the National Consumer Secretariat (SENACON), subordinate to the Ministry of Justice and Public Security, is the federal administrative body that co-ordinates the National Consumer Protection System (SNDC). However, it does not have hierarchical authority over state or local agencies (PROCONs), which are responsible for consumer protection and have administrative sanctioning authority.

SENACON may issue ordinances and rules concerning CDC enforcement, including in relation to advertising, although advertising regulation through a rule other than one provided for in federal law is always controversial (Article 220(3) and (4) of the Federal Constitution). SENACON can also apply injunctions measures and fines of up to BRL13 million.

In the civil sphere, the Federal and State Public Prosecutor’s Office, the Public Defender’s Office and the legally constituted and authorised consumer protection associations are also empowered to enforce the CDC (Article 82), and, by filing public-interest civil actions, may seek to redress moral and material damages eventually generated by deceptive or abusive advertising aimed at a community of consumers.

Finally, CONAR is the self-regulation authority responsible for the supervision of advertising compliance under the CBAP (see 1.7 Self-Regulatory Authorities).

Not only the advertiser, but also advertising agencies, media outlets and celebrities, can be held liable for deceptive advertising.

Initially, case law held that only the advertiser was directly liable for the messages (Article 38 and Article 36, sole paragraph, of the CDC, which provide that the advertiser has the burden of proof in demonstrating the truthfulness and accuracy of the advertising message). This understanding was confirmed by the Superior Court of Justice (STJ) in the Special Appeal (hereinafter “REsp” – 604.172). However, more recently, advertising agencies have been sued along with the advertiser (Response 1.676.750). There is also an interpretation that argues that all agents in the chain must be liable (Article 7, sole paragraph, and Article 25(1) of the CDC).

This understanding is in line with CONAR rules, which, despite constituting merely a code of ethics, circumscribe and guide the advertising market (Article 45(b), CBAP).

Regarding individuals, the punishment will be personalised in the case of a criminal offence (Articles 67–69 of the CDC, which establish the necessary requirements for the advertising to be found deceiving and/or abusive).

Misleading Offer

The advertising agency should not answer for misleading offers since it is not liable for defective products or services, nor can it be compelled to meet the offer made to the consumer, or even deliver an equivalent product.

Communication Vehicles

The media cannot control overall message content or accurately examine technical and scientific data. In principle, the liability of communication vehicles is not strict, although they may eventually be liable if there is wilful intent or gross negligence.

Celebrities/Influencers

Celebrities lend their image, voice and prestige to promote advertisers’ products. They do not participate in the advertising creative process, so, as a rule, they receive the advertiser’s pre-defined text. They cannot be held strictly liable. Furthermore, celebrities (and, currently, influencers) are considered independent contractors who only answer subjectively upon evidence of wilful intent or gross negligence (Article 14(4) of the CDC).

Self-Regulation

All those who participated in the advertising creative process are regularly held liable for it at the level of industry self-regulation (both agencies and influencers), receiving CONAR guidance according to their liability.

The scope of what is considered advertising in Brazil is extremely broad, since it can include any type of advertising, regardless of the medium.

Thus, any deceit control applies not only to so-called traditional advertising, but also to any type of “advertising information”, which includes, among other forms, sales promotions, packages, point-of-sale materials, tasting and sampling in retail, labelling and slogans, “sponsored” messages on blogs, social media and product placement.

In principle, Brazilian legislation does not require pre-approvals from government or other authorities before running advertising. However, when it comes to products regulated by a health authority, the use of efficacy claims is subject to notification and, in some specific cases, only claims pre-approved by the authority may be used, with the submission of a prior study that substantiates the claim (see 10.1 Regulated Products).

Copyright Law (Law 9,610/1998)

Music, drawings, photographs or graphical effects may only be used in advertising with the prior and express authorisation of the author to use their work (Articles 28 and 29), except in cases where the work is in the public domain (70 years from January 1st of the year following the author’s death – Article 41), is from deceased authors who have not left successors or is that of an unknown author (Article 45).

Graphics – ie, fonts used for text messages applied in advertising communications – are also protected by copyright law, since they are considered as “software” or computer programs.

Trade Marks

Under Law 9.279/96, a competitor’s brand cannot be used in advertising (Article 130, III). The exception is comparative advertising focusing on a specific attribute of the compared product or service (see 3. Comparative Advertising and Ambush Marketing).

CONAR states the need to respect copyrights and also protects creativity and originality, condemning any advertisement based on plagiarism or imitation (Articles 38, 39 and 41).

CONAR is responsible for the supervision of advertising compliance under the CBAP.

Self-regulatory rules, despite not being enforceable as law, bind all CONAR signatories, besides being a subsidiary source of law for judicial and administrative cases.

The decision on the merits is rendered, on average, within 60 days, with the possibility of a preliminary injunction being granted – which will be immediately enforced by vehicles and advertisers.

Proceedings and Processing

Proceedings can be initiated either on CONAR’s own initiative or by CONAR’s associates (advertisers, agencies and communication vehicles).

Once the representation is instituted, the case is judged by one of the Ethics Council Chambers. Regardless of the result, a so-called ordinary appeal may be filed to the Special Appeal Chamber by the parties, by the President of the Chamber or by CONAR’s Executive Director.

A so-called extraordinary appeal is admitted only exceptionally, and may be filed by the losing party if (i) the decision rendered in the ordinary appeal was not unanimous (divergence) or (ii) it was based on an error resulting from procedural acts and documents.

Remedies

Should any advertisement be found in breach of CBAP rules, the Ethics Council may apply the following sanctions, cumulatively or otherwise:

• a warning to the advertiser and its agency, or even to a celebrity or influencer who has been hired;
• an amendment of, or change to, the advertisement;
• cessation of the advertising campaign and the subpoenaing of communication vehicles to discontinue display of the advert, for better enforcement of the remedy; and
• although unusual, disclosure of CONAR’s position to the public (through the media) regarding the advertiser, agency and vehicle, in the case of a failure to enforce the recommended remedies and actions.

Advertising practices may be challenged by lawful consumer defence bodies (the Public Attorney’s Office, PROCONs, SENACON), either on behalf of society or by individual consumers.

The civil liability that arises from deceptive or abusive advertising is a strict one, being based on the enterprise risk theory. However, despite being strict, the duty to repair is not automatic, and the individual consumer must prove causation between the advertisement and the alleged damage, which must be concrete (and not potential, as in collective actions).

In the past 12 months, there have been regulatory discussions and cases pertaining to potential measures to combat deceptive advertising in the context of “new” issues, such as the use of artificial intelligence (AI) in advertisements (see 8.1 AI & Advertising Content) and in the advertisement of online games. Regarding the latter, concerns have been raised about companies that hire child influencers to advertise certain online games and betting houses to children on social media platforms, notwithstanding the fact that the advertising of online betting houses is already prohibited for minors in Brazil, according to Annex X to the CBAP, which regulates the advertisement of bets. There also have been regulatory discussions to restrict or prohibit the advertising of high in fat, salt and sugar (HFSS) food.

Brazil has a large and diverse population, with enormous cultural richness. Brazilian advertising is marked by creativity, irreverence, humour and intelligence, and it often depicts diverse social representations.

However, Brazilian audiences have been very judgmental when it comes to inclusive and affirmative advertising, which ends up being misunderstood as discriminatory by segregating people or encouraging prejudiced attitudes.

There are certain issues that seem to be in the spotlight in the current Brazilian federal and state administration related to the advertisement of “ultra-processed” foods (and of HFSS foods), as well to advertising to children – especially in digital spaces. This motivated the publication of Resolution 245/2024 of the National Council for the Rights of Children and Adolescents (CONANDA in April 2024, which sets forth rights for children and adolescents in the digital space, taking a more restrictive stance.

Misleading advertising is defined in Article 37(1) and (3) of the CDC, and consists of messaging that is able to deceive consumers as to the features of the advertised product or service (ie, with regard to the nature, quality, quantity, properties, origin, price or any other aspect of a product or service) by deceit, omission or any other means (eg, ambiguity and/or inaccuracy).

The CDC defines advertising that is deceptive by way of omission as that which fails to inform consumers of “essential information” related to the advertised product or service. Essential information may alter the terms of the offer, or the conditions or constraints of enjoyment of the good or service, or else may burden the consumer.

The deceptive potential of an advertisement must be accurately examined and measured according to the impression that this ad creates (or may create) in its target audience.

The regulation of deceptive advertising is not restricted to the content. Advertisements that mask their commercial nature – ie, that suggest they are spontaneous – may be declared misleading due to a breach of the principle of identification (Article 36 of the CDC).

The CDC does not regulate specific claims or advertising techniques. All advertising, however, is subject to the principles of truthfulness, honesty and non-abusiveness.

Moreover, certain sectors are subject to specific regulations (see 10.1 Regulated Products), and certain attributes must therefore be in line with such regulations.

Article 36, sole paragraph, of the CDC establishes the principle of transparency and requires advertisers to retain supporting factual, technical and scientific data. The scope of this legal requirement means that the burden of proof is on advertisers regarding the veracity of their claims.

The same rule is provided in Article 27(1) of the CBAP, compelling advertisers and agencies to provide factual, technical or scientific evidence regarding any comparisons or descriptions, whenever requested.

Testing

Neither Brazilian law nor self-regulatory rules establish specific standards for testing to support advertising claims.

Such analysis is done on a case-by-case basis. The law only requires that any comparative ads that claims a specific form of effectiveness or a difference from other market competitors must be supported by testing (prior to the campaign), and the source (survey) that supports the claim must be referenced in the advertisement, even if in a footnote.

CONAR has already recognised, on several occasions, the validity of campaigns that use product demonstrations (“demos”) as a visual and entertaining way to highlight a benefit offered by the product, as long as the highlighted benefit is duly supported and proven by clinical testing. Demos are recognised as a creative and valid resource to inform the consumer, through dramatisation, of a scientifically proven benefit, making technical information easy to be understand for the average consumer.

Testimonials are defined by CONAR as deposition, endorsement or certification where an individual or legal entity other than the advertiser gives an opinion or reports its own experience or observations relating to a product (Exhibit Q of the CBAP). According to this definition, the testimonial may be classified as:

• the testimonial of a specialist/expert;
• the testimonial of a famous person;
• the testimonial of a lay-person or consumer; or
• a certification or endorsement issued by a legal entity and reflecting its official opinion.

Testimonial messages must truly reflect the benefits proclaimed, as well as the individual’s real impressions. The testimony does not exempt the supplier from proving the veracity of the allegations contained in the ad.

An advertisement must be clearly identified as such, whatever its type or broadcasting medium (Article 28 of the CBAP). When the advertisement’s nature is not evident due to the context, it is necessary to include disclosures.

The CBAP states that an advertisement in newsprint, article, news, text caption – or any other – form that is published upon payment of an amount shall be properly distinguished from editorial content (Article 30).

In social media, where it is difficult to distinguish advertisements from editorial content, written disclosure is strongly recommended through the appropriate means provided by the platforms, and also by the user, using hashtags (#advertising, #paid partnership, etc).

There are no specific rules in Brazil to address stereotypes, inclusion, diversity and equity in advertising. However, the Brazilian Federal Constitution (Article 5) and the CDC (Law 8.078/1990, Article 37, Section 2) prohibit any type of discrimination.

In the same vein, CONAR provides that no advertisement shall encourage or stimulate any type of offense related to racial, social, political, religious or national discrimination (Articles 20 and 37(1)(b)), and that the advertisement shall be created within the scope of the Brazilian social and cultural context (Article 27, Section 6(c) of the CBAP).

Self-Regulation (Exhibit U of the CBAP)

Exhibit U of the CBAP states that advertising must reflect both the advertiser’s liability towards the environment and sustainability, and must be guided by the principles of concreteness, veracity, accuracy and clarity, proof of sources, pertinence, relevance and the absence of absolute claims.

Companies should advertise only pertinent and relevant benefits vis-à-vis the global impact of their activities, and avoid conveying absolute advantages since it is impossible to fully annul environmental impacts.

The CDC is also applied in cases where the environmental claim is found to be misleading – by deceiving the consumer about the real environmental impact of the advertised product – or lacks adequate support of its veracity (substantiation).

The World Federation of Advertisers (WFA) Global Guidance on Environmental Claims, translated and published in 2022 by the Brazilian Association of Advertisers (ABA), highlight important concepts and parameters applicable to environmental claims.

There is no special law, regulation or guide that deals with dark patterns in advertising in Brazil. However, CONAR has already judged several cases involving the use of dark patterns in advertising, condemning advertisers based on a misleading message that could manipulate consumers. Such cases are also addressed by the CDC, which condemns any type of abusiveness or exploitation of the consumer’s lack of experience.

Children are defined by the Child and Adolescent Statute (ECA) as people up to 12 years old.

Marketing to children is regulated in Brazil by Article 37(2) of the CDC, which establishes that advertising that takes advantage of children’s less developed judgment and experience is abusive. Despite the CDC prohibiting only abusive advertising, decisions have been rendered by the STJ against “gift with purchase” promotions that grant gifts in the food sector.

Regarding self-regulation, CONAR provides a detailed list of rules so that messages aimed at children are appropriate and respect their special status as developing persons. Besides dedicating a specific section in its Code (Article 37, et seq, of the CBAP) to children and teenagers, Annex H of CONAR also provides several rules concerning the marketing of food to children.

Moreover, CONAR’s Guidelines hold that advertisements must consider the target audience. The Self-Regulation Guidelines introduce a specific rule stating that messages must be identifiable and distinct from the rest of the content (Item 1.1); for this specific audience, simply using hashtags (“#”) is not sufficient. For effective “material disclosure” in advertisements featuring audio and video elements, it is recommended that both written and verbal forms be used for identifying the advertising, as these are more easily noticed by children.

There are no specific rules for sponsor ID and branded content. Therefore, the general principle of advertising identification is applied: if a commercial element and brand are involved, their relation must be clear to consumers.

HFSS Food Labelling

Brazilian legislation regulates claims on food labelling in a more specific manner. The recent Collegiate Board Resolution (Resolução da Diretoria Colegiada (RDC)) 429/20 and Normative Instruction (Instrução Normativa (IN)) 75/20 introduced new rules for the front-of-package (FOP) nutritional labelling of packaged foods, and for nutritional claims. It is currently mandatory to adopt FOP labelling for foods that have high added sugar, saturated fat and sodium contents, in accordance with the criteria established in Article 18, et seq, of RDC 429/20 and Annex XV of IN 75/20, through the use of a specific image to communicate the high content of such nutrients.

Nutritional Claims

The criteria defined in the legislation (RDC 429/20 and Annexes XIX–XXI of IN 75/20) must be adhered to when communicating about high or low nutrient content and/or energy (“source”, “rich in”, “high content”, “low”, “very low”, “does not contain”, “no added”, “zero”, etc), and when making comparative nutritional claims, etc.

The health surveillance legislation also contains principles-based rules, established mainly in RDC 727/22, which restrict communication regarding food additives, in addition to other communications that, although not expressly regulated, can be monitored by health surveillance bodies and/or consumer protection agencies in terms of veracity and the possibility of misleading consumers regarding the real nature, composition, origin, type, quality, quantity, validity, food yield/portions or form of use of a food.

Geographical Origin

Geographical origin-related restrictions are established by RDC 727/22, and by the Industrial Property Law (Law 9279/1995).

Claims With Health Appeal

Despite Brazil not having specific regulations for generic claims, there are several restrictions pertaining to the correctness and veracity of the expressions used to make such claims, as the authorities understand that generic claims lacking support are liable to mislead consumers.

Regarding food for which functional properties are claimed, please see 10.1 Regulated Products. Regarding environmental claims, please see 2.8 Environmental Claims.

General Requirements of Comparative Advertising

The CDC does not expressly mention comparative advertising, and this advertising technique is not prohibited. CONAR, however, has opted to expressly regulate comparative advertising, recognising it as customary market practice (Article 32 of the CBAP).

Comparative advertising should be applied to goods and services of the same type or nature. CONAR further reinforces that the main purpose of comparative advertising should be consumer information. Therefore, with regard to comparison parameters, it requires that any comparison should be based only on objective and provable data; and that the comparison must rest on one or more essential elements of the comparative product or service, thus increasing the information for the consumer.

All comparative ads must be supported by technical data. Specific requirements for comparison include:

• that it is always objective and verifiable;

• that it does not aim to cause confusion between brands;

• that it does not disparage a competing product or brand; and

• that it does not take undue advantage of another company’s brand (parasitism).

As long as a comparison is true, objective and verifiable regarding one or more essential elements of its products or services, expressly identifying the competing brand in the advertisement is authorised. The direct comparative campaign ran by Rayovac can be highlighted here, which accentuated Rayovac batteries’ superior durability and lower price than those of Duracell – this was regarded by the STJ as pursuant to consumer’s interests (REsp 1.668.550). CONAR has also judged several cases of direct comparative advertising, requiring proof and substantiation so that a comparative claim could be maintained.

Comparative advertising, however, cannot depreciate a competitor’s brand or image – as occurs, for example, when the advertiser alludes to a competitor’s personal circumstances that are unrelated to the compared products or services, or uses offensive expressions or images.

Competitors may challenge the content of comparative advertising both in CONAR and before the courts, in the latter case by filing unfair competition lawsuits (Law 9279/96). The remedies regularly claimed are the cessation of the advertising and a claim for damages – both moral and material – for trade mark infringement.

One of the most recent leading cases in the Brazilian food industry concerns misleading and comparative advertising displayed at one of the world’s largest processed food fairs, where the discussion has expanded to digital media. The advertisement in question compared the new Heinz mayonnaise to the market leader (Hellmann’s, owned by Unilever), alleging a superior production process (“100% cold process”) that would grant a “fresher and creamier” product (compared to other processed mayonnaises). The lawsuit is based on Heinz’s failure to substantiate the alleged superiority and demonstrate that the 100% cold process would provide a fresher and creamier mayonnaise.

The first law that addressed ambush marketing issue in Brazil was the General World Cup Law (Law 12,663/2012) – created specifically to regulate major International Federation of Association Football (Fédération Internationale de Football Association (FIFA)) sporting events that took place in Brazil between 2013 and 2014. This Law provided for the practice of ambush marketing by association or intrusion. However, following the conclusion of these specific events, such provisions are no longer in force.

This topic, however, has already been addressed within the scope of CONAR's self-regulation, through Article 31 of the CBAP, which condemns undue and illegitimate advertising profits obtained through “ride” and/or “ambush” – ie, through invasion of the editorial or commercial space of a communication vehicle.

CONAR treats the issue of ambush marketing broadly, to protect sponsors of major events and not just sponsors of sporting events. In this regard, see Representations 73/24 (Lollapalooza Music Festival), 33/23 (Carnaval), 247/22 (FIFA World Cup Qatar 2022), and 191/23 (allusion to sponsored soccer teams).

More recently, the General Sports Law (Law 14.597/2023) was enacted, introducing a definition of ambush marketing by association or intrusion (Articles 170 and 171) as well as reproducing the rule already introduced by CONAR (Article 160, Section 5º). This Law, however, focuses on the sports sector, being applied by analogy and associated with self-regulation for other sectors (concerts, parties, music festivals, etc).

The same CDC and CBAP principles are applicable both to traditional and digital media, including (i) identification of the advertising message as such by consumers; (ii) veracity; and (iii) the requirement for messages to respect constitutional social values and their target audience.

In 2021, CONAR issued the Guidelines, which contain instructions to help with the application of the CBAP’s rules to the commercial content generated by social media users known as “digital influencers”.

The advertiser’s liability for content posted by third parties on the brand website or social network depends on the relationship established between them. According to CONAR’s Guidelines and precedents, not only the payment, but also the commercial relationship, characterise paid advertising.

Whenever there is a commercial relation or paid advertising, the advertiser is, directly or indirectly, liable for the posted content.

Moreover, CONAR also establishes that if a company shares or makes use of organic content from a third party (ie, spontaneously created content) that mentions its brand or product, this new content – be it endorsed, shared or adapted by the company – becomes new content of an advertising nature and must therefore comply with the rules of the CBAP. It is noteworthy that companies cannot share or endorse irregular organic content, even if it is neither contracted nor solicited.

The major problem, from a legal standpoint, remains those cases where there is no relationship between the brand and influencer, but where the content – which was never shared by the brand – ends up being erroneously considered as an advertisement, and the brand is held liable (as if it was the advertiser) for the spontaneous content under the exclusive responsibility of a third party.

In social media, written disclosure is strongly recommended through the appropriate means provided by the platforms (eg, paid partnership), and also by the user, for instance by using the hashtags #advertising, #advertisement, #sponsored, #paid content and #paid partnership.

CONAR’s Guidelines also clarify that, depending on the context, the following expressions do not clearly convey the commercial relationship between the influencer and the advertiser: #ambassador, #partner, #brandXYZ, #collaboration and #colab. Moreover, the Guidelines recommend that, for gifts or activation messages, the following hashtags could be used: #gifted/#received; [trip/show/event] invited by [brand]; Thanks to [brand] for [product, trip, invitation]; and #promotion, #promo (activations upon gifts or prize).

For children, as indicated in 2.10 Children, there must be a more robust disclosure, preferably in written and oral form or through any other form of distinction of the editorial content.

Law 12965/2014 (the Civil Rights Framework for the Internet) provided general rules for social media platforms concerned with keeping connection records and removing improperly stated content of third parties. Accordingly, the internet application provider should:

• keep confidential records of connection to internet applications in a secure environment for a period of six months; and
• be held civilly liable for third-party content only in cases of non-compliance with a court order to remove content identified infringing on rights.

Besides this regulation, the General Data Protection Law (Lei Geral de Proteção de Dados (LGPD)) is applicable to social media platforms, without prejudice to the applicability of the CDC or of the criminal law against libel and torts in connection with defamatory or slanderous messages and fake news.

In Brazil, all advertising content must be identified as such. Native advertising (ie, advertising that resembles editorial content) must follow overall CDC and CONAR rules and principles, and cannot hide its commercial nature on penalty of being declared deceitful according to the presentation format (hidden advertising).

CONAR's Guidelines reinforce the principle of identification provided for in the CDC and in self-regulation law.

CONAR’s Guidelines (2021) define “advertising by influencer” as “a third party’s message to stimulate the consumption of goods and/or services conveyed by so-called Digital Influencers hired by the Advertiser and/or Agency”. It has three cumulative requirements:

• promotion of the product, service, cause, or other associated sign;
• compensation or a commercial relationship, even if not financial, with the advertiser and/or agency; and
• editorial control over the influencer’s post.

Regarding editorial control, the Guidelines characterise the act of hiring (formally or informally) an influencer as the promotion of a product or service being requested of – or suggested to – the influencer by the advertiser, with either general or specific details regarding the content, time, frequency, or form of posting. Mere contact of the advertiser with the user, through a simple introduction to the product, guidance on consumption or necessary care – in the case of eventual and uncertain user posting in compliance with the applicable ethical and legal rules – is not considered editorial control.

The Guidelines also tackle the following issues.

• The need to clearly identify advertising by influencer, pursuant to the identification principle, through the use of identification tools provided by platforms (eg, paid partnership) or by using hashtag advertising, paid content or sponsored posts, among other options.
• Activation messages, also known as “gifted/received” (recebidos/brindes): these messages are provided without any financial benefit – and without editorial control – but they nevertheless do not constitute a mere spontaneous mention of the brand. This must be clarified to the consumer. CONAR understands that it is necessary to mention the relationship that underlies the reference to the brand, in observance of the principle of transparency.
• Engagement: defined as “content generated by the User through the offering of gifts or benefits through promotional actions, contests, “challenges” or the like that encourage the User to post based on engagement”. An engagement campaign will be considered “regular” if (i) the promotion mechanics are compatible with the regulations governing the free distribution of gifts, and if (ii) it respects the CBAP rules.
• Endorsement: if a company shares or makes use of organic content from a third party (ie, content created spontaneously) that mentions its brand or product, this new content becomes new content of an advertising nature, and it must therefore comply with the rules of the CBAP. It is worth noting that companies cannot share or endorse “irregular” organic content, even if it is neither contracted nor solicited.

The advertiser will always be held liable for the content posted by the influencer. If a specific agreement was made regarding the posted content, the liability is unequivocal. If an influencer is strongly connected with a brand (its “poster boy/girl” or “brand ambassador”), then even if the content/influencer was not specifically paid for or hired, the advertiser is answerable for that content, given the connection of the influencer to the brand.

Here, the main legal problem is when such a relationship does not exist (ie, when the influencer does not have any direct or indirect relationship with the brand), and the company sometimes ends up being liable for the third-party’s exclusive content.

Recent cases in Brazil have led to discussion of this topic, and CONAR’s case law has varied, sometimes holding the brand liable for improper third-party content and sometimes exempting it. Therefore, despite there being no legal duty to “monitor the network”, there are situations where CONAR has ruled that a supplier should act to protect its good name, even though the content in question was produced by third parties with no direct or indirect relationship with the brand.

Currently, there are no specific rules in Brazil regarding the solicitation and/or use of consumer reviews of products or services.

However, Brazilian legislation contains “principles-based rules” pertaining to the veracity of the information transmitted about the product or service, and any offer.

Furthermore, if consumers are asked to provide a review in a non-spontaneous manner, it is recommended that some disclosure regarding this fact be provided, to avoid any accusation of a “review purchase” or “review manipulation”. It is also recommended that the consumer be informed – before they submit their review – about the possibility of their content being disclosed to third parties, thereby safeguarding the confidentiality of the consumer’s personal data (as provided for in Law 13709/2018).

As a rule, Brazilian law guarantees freedom of expression, including in relation to expressing one’s opinions about products/services sold or offered on the market. Therefore, suppliers should not interfere with submitted reviews, nor be held liable for them.

However, if a supplier publishes, endorses or uses consumer reviews in their marketing that contain misleading information or constitute a crime, they may be held liable.

For platforms over which a supplier has direct control (eg, its social media accounts or website), they have the duty to monitor the reviews posted thereon, and it is their responsibility to exclude reviews that violate the law. For platforms that are not controlled by the supplier, in principle, there is no legal obligation to monitor consumer reviews. However, if the supplier becomes aware that a review regarding its product/service violates the law (even on a platform out of its control), it must take the appropriate measures to request the removal of said content under penalty of being held liable. Such removal, nevertheless, must follow a careful assessment by the supplier, since the removal of a genuinely created customer review may also create liability for the supplier.

No specific rule is applicable to email marketing. However, general consumer protection rules that prohibit abusive marketing are applicable (Articles 6(IV) and 39(IV) of the CDC).

Thus, email addresses may only be collected for marketing purposes with the consumer’s explicit consent, and upon providing them with an opt-out option. Furthermore, consumer addresses cannot be shared with third parties without prior consent. The liability for any violations under the current rules follows the overall civil and consumer liability regime. The criteria for personal data use and processing, as well as the liability regime for unlawful acts, will be strengthened by the General Data Protection Law, which recently came into force.

Self-Regulation

In 2019, telecommunications companies, jointly with Agência Nacional de Telecomunicações (ANATEL, the regulatory agency), launched the Não Me Perturbe (“Don’t Disturb Me”) subscription platform, which allows consumers (via a website) to exclude their number from land and mobile telephony, TV and internet service providers’ databases – an initiative to tackle abusive marketing and to provide opt-out options.

Specific Laws

At the federal level, ANATEL Resolution 632/2014 established that consumers of telephone, paid TV and internet services are entitled not to receive advertising messages on their mobile stations, except upon prior, free and express consent.

In 2023, ANATEL published the New General Regulation on Consumer Rights for Telecommunications Services (Resolution 765/2023, effective from September 2025), which in addition to the above-mentioned rule, classifies as “irregular use of telecommunications” massive call volumes (ie, those exceeding human capacity), calls with no intention of effective communication and calls that make it difficult to identify the caller, among others. Infractions of these rules will subject offenders to the administrative sanctions of Law 9,472/1997, as well as of ANATEL’s Administrative Sanctions Application Regulation.

At the state level, several laws provide for telephone number registration (often managed by state PROCONs) to block product or service telemarketing calls.

Finally, the LGPD provides for specific obligations regarding consent, conditions for data processing and liability resulting from data processing failures, which will significantly increase.

Text messages sent to consumers are governed by the CDC principle that prohibits abusive marketing to consumers (Articles 6(IV) and 39(IV) of the CDC).

ANATEL Resolutions 632/2014 and 765/2023 establish that consumers of telephone, cable TV and internet services are entitled to not receive advertising messages on their mobile stations, except with prior, free and express consent. Notwithstanding that, there are several initiatives at the state level (in Paraná, Espírito Santo, Minas Gerais, etc) that take into account opt-out registrations – ie, consumers who no longer wish to receive active telemarketing calls and/or messages can opt-out therefrom, whereas those who are interested in receiving such communications (where it could be in their best interest, having had a previous relationship with a given brand or company) may continue to receive them. There will be penalties only for those companies that disregard the expressed wishes of the consumer.

Finally, upon the LGPD coming into force, further discussions will arise about consent and the supplier’s lawful interest in data collection and processing.

In Brazil, no rule (legal or self-regulatory) has yet been enacted to specifically regulate targeted advertising. General rules, both in the CDC and in the Civil Rights Framework for the Internet, are applicable to the consent needed for personal data collection, storage and transfer (Article 7(IX), Law 12968/2014), and the LGPD also reinforced the need for consent for data collection and processing. Thus, only the data subject can, if they wish – when asked explicitly and unequivocally – authorise their information to be used by companies and public bodies when offering products and services, whether free or otherwise. However, consent is not the only basis that could enable a company to use personal data for advertising purposes: companies may also rely on legitimate interest, provided for in Articles 7(IX) and 10 of the LGPD (where it could be in the legitimate interest of the data holder to receive certain advertisements, for instance from companies and/or brands with which it had a prior relationship). When considering using legitimate interest as a legal basis for processing personal data, it is essential that the company performs a legitimate interests assessment (LIA), through which it will be able to assess whether or not it is possible to evoke legitimate interest in the intended case.

Collection or Use of Personal Information From Children

The LGPD (Law 13,709/2018) provides a specific section (Article 14) pertaining to how children’s personal data should be treated, considering their best interests and with the specific and highlighted consent of at least one parent or legal guardian (Paragraph 1). For the purposes of this Law, information concerning an identified or identifiable natural person is considered personal data (Article 5(I)).

Under the principles of child protection, children’s data should not be collected without parental consent, let alone to target them via media “that interests them” or is based on their “browsing habits”.

Liability for Violation of the Rules

Articles 56 and 57 of the CDC provide for penalties that may be applied in case of violation of the foregoing rules, notably including a fine of up to BRL13 million.

The penalty provided for in the LGPD is a fine amounting to 2% of the relevant company’s turnover (limited to BRL50 million). Furthermore, among other sanctions, the law also states that any infringement may be subject to publication after its assessment and verification.

Apart from the above-mentioned legislation (the general rules for consumer protection set forth in the CDC, the LGPD and the Civil Rights Framework for the Internet), the Brazilian Federal Constitution also provides for the general right to privacy (thus not limited to advertising), ensuring the right to compensation for material or moral damage resulting from its violation (Article 5(X)).

Under Law 5768/71 and Decree 70951/72, any free distribution of prizes as a form of advertising that involves luck must be submitted for prior approval of the competent government agency. Currently, this approval is centralised in the Secretariat of Prizes and Betting (SPA) of the Ministry of Finance.

The laws provide for several types of commercial promotion subject to registration, such as:

• a raffle, where the consumer meets a certain requirement (eg, the purchase of products) and receives a “lucky number” – which is randomly, equitably and concurrently assigned – and can win as per the results of the federal lottery;
• a contest, where the winner is defined based on performance (eg, submitting the “best” photo/video), or a competition of any nature (eg, where the winner is the first person to buy a particular product); and
• a gift certificate, where the reward is instantaneous.

Recently, Ordinance 7.638/ 2022, issued by the Secretariat for Economic Monitoring (SEAE), provided additional rules on the free distribution of prizes for advertising purposes through a draw, gift certificate, contest or similar modality, as referred to in Law 5,768/1971 and Decree 70,951/ 1972.

Brazilian laws distinguish between contests of skill and games of chance. Whenever luck is involved, the company must procure prior authorisation.

An exception to this rule is the exclusively cultural, artistic, sporting or recreational contest, insofar as it is not subject to any type of risk or payment for competitors/participants, nor binds such competitors/participants (or the winners) to the acquisition or use of any good, right or service. Such contests, therefore, are intended to reward artistic or sporting talent, or simply to offer leisure, without market connotations.

Promotions that involve luck (raffles, gift certificates, contests, or similar operations) must be previously authorised by SPA. The law includes extensive mandatory documentation and accountability procedures. In brief:

• authorisation must be procured online, at least 120 days before the promotion starts;
• an inspection fee must be collected, the amount of which varies according to the value of the promotional prizes;
• after the commercial promotion ends, the company must report to SPA within 30 days after delivering all the prizes or collecting the amount corresponding to the prizes that were not delivered, if applicable; and
• once the accountability report is approved, the procedure is shelved.

Free offers like “buy one, get one free” are detailed in Informative Note 11/2018, which establishes the basis under which prior registration of the promotion is mandatory.

The CDC (Article 39(III)) establishes that sending or delivering products or providing services to consumers, without prior request is an abusive practice. Consequently, even if a prior contractual relationship has been established to send products or provide services continuously (for a charge), to avoid allegations of abusive practice and related penalties, the prior and express consent of the consumer should be procured for the renewal.

Except for a regulation on electoral advertisement (Resolution 23,610/2019 of the Superior Electoral Court, which provides for restrictions on the use of AI in electoral advertisements), there is no legislation in Brazil so far that specifically regulates the use of AI, either in general or specifically in connection with the development of advertising content. Moreover, there are bills currently under discussion that aim at regulating AI in Brazil, such as Bill 2338/2023, which proposes general rules for the development, implementation and use of AI systems in Brazil.

Regarding self-regulation initiatives, it is worth highlighting the following.

• In August 2023, CONAR closed without penalties a complaint against an advertising campaign by Volkswagen that featured an AI-generated likeness of the famous singer Elis Regina, who died in the 1980s, singing a song with her daughter. CONAR concluded that there was no obligation to include information to clarify that the content of the advertisement had been generated by AI, considering the use of AI to be self-evident in this case.
• There is a draft bill still under discussion to modify the Civil Code in relation to several subjects, including AI, through the inclusion of a provision that in sum (and inter alia) provides that:
1. the creation of images of people, living or deceased, for commercial use is permitted provided there is express consent; and
2. it will be a requirement that users be informed about interactions with AI systems.

Notwithstanding the non-existence of special rules in Brazil related to making claims that a product was developed using AI, is powered by AI or has AI-related capabilities, a claim has already been submitted before CONAR concerning the use of AI in an advertisement (by Volkswagen, mentioned in 8.1 AI & Advertising Content).

There are no special rules or guidance in Brazil specifically on the use of chatbots. However, the use of chatbots must abide to general rules on personal data protection, provided for in Law 13,709/2018 of the LGPD, considering that chatbots often involve the collection of personal data – which requires the explicit consent of the users in several instances. Furthermore, there is a bill still under discussion (Bill 2,338/2023) that sets stricter guidelines for the use of chatbots, to enhance transparency and personal data protection.

Since 22 December 2022, Law 14,478/2022 (the Legal Framework for Crypto Assets) has been in force in Brazil, setting forth guidelines to be observed in the provision of virtual asset services and in the regulation of virtual asset service providers. It establishes that the provision of virtual asset services must comply with certain guidelines, such as the protection and defence of consumers and users (Article 4(IV)), and that the provisions of the CDC apply to transactions conducted in the virtual assets markets – which means that the CDC could also be applied to advertisements in the crypto assets market.

There are not yet any special laws or regulations in Brazil on advertising within the metaverse. Notwithstanding that, there is some general legislation that must be observed concerning several aspects of the metaverse, especially Law 13,709/2018 (the General Data Protection Law), which is relevant to the metaverse considering that it could entail personal data collection from its users – and Law 12,965/2014 (the Internet Civil Framework) – which provides for the freedom of expression of users, the right of privacy and network neutrality. There is a bill before the National Congress (Bill 2,175/2023) providing for a regulatory framework for the metaverse, which is still in the early stages of discussions.

In practice, CONAR has been applying the same principles as in the CBAP, namely transparency of the information and non-abusiveness of the message. There were cases decided by CONAR on “advergames” using the metaverse, in which CONAR required those games to be modified as it understood that there was an excessive appeal to consumption, mainly because they were directed towards children.

Alcohol

There is a distinction made between drinks with a high alcohol content (>13 Gay-Lussac (°GL); eg, spirits, vodka, gin, whiskey, and rum) and drinks with a low alcohol content (<13°GL; eg, beers, wines, and ices).

Drinks with low alcohol content

Products under Exhibit P (beers and wines) and Exhibit T (ices and similar beverages) of the CBAP are regulated by Brazilian self-regulation. CONAR regulates the advertising of these products, establishing the need to include a warning clause (eg, pertaining to avoiding excess consumption and the prohibition of use for those under 18), ensure the protection of children and adolescents, and follow the principle of responsible consumption.

Drinks with high alcohol content

The basic obligations for high-alcohol-content drinks are the same as those for low-alcohol-content drinks, albeit with additional restrictions on the former provided for in Law 9,294/1996 (the Murad Law), which sets forth restrictions on the broadcast hours of advertisements thereof (prohibited between 6 am and 9 pm). Exhibit A of the CBAP reinforces and complements the restrictions provided for in the Murad Law.

Tobacco

The Murad Law prohibits the advertising of cigarettes, cigarillos, cigars, pipes or any other smoking products, regardless of whether they are derived from tobacco, with the sole exception of the display of said products in sales outlets if accompanied by the warning clauses previously established (Article 3). Exhibit J of the CBAP reinforces the restrictions provided by the Murad Law.

Vaping/Electronic Smoking Devices

The commercialisation, manufacture and advertising of these devices are prohibited by the Brazilian Health Regulatory Agency (Agência Nacional de Vigilância Sanitária (ANVISA)). Nevertheless, the regulation of electronic smoking devices (“vapes”) is a hot topic in Brazil and has been widely discussed since the presentation of Bill 5,008/2023, which intends to authorise the consumption, production, commercialisation, export and import of these devices as well as to regulate the control, inspection and advertising of vapes.

Cannabis

ANVISA RDC 327/2019 prohibits any advertising of cannabis products. The display for sale in Brazil of such products, such as via advertisements on internet sites, is also prohibited.

Drugs

RDC 96/2008 of ANVISA regulates advertising and other practices for which the objective is the dissemination or commercial promotion of medicines. The resolution establishes that only advertising of medicines regulated by ANVISA under the terms of Law 6,360/1976 is permitted (Article 3). For the general public, advertising is only permitted for over-the-counter drugs. Medicines that require a medical prescription can only be advertised to healthcare professionals (doctors/dentists or pharmacists).

Self-regulation also brings specific rules for the advertising of medicines, provided for in Exhibit I (OTC pharmaceutical products) of the CBAP.

Food With Functional Property Claims

Under Decree-Law 986/69, Resolutions 18/99 and 19/99, and RDC 727/22 of ANVISA, a food can be considered to possess a functional property if it has a metabolic or physiological role, whether nutrient- or non-nutrient-related, in the growth, development, maintenance and other normal functions of the human body (eg, foods containing probiotics; prebiotics; dietary fibres or oligosaccharides; antioxidants; vitamins A (carotenoids), C (ascorbic acid) or E (tocopherol); flavonoids; phenolic acids; or fatty acids including omega 3, omega 6 and conjugated linoleic acid).

Functional claims for these foods can only be made if they have already been authorised by ANVISA, and only in exactly the same terms. If the supplier wishes to communicate about functional properties that are not already approved, they must request pre-authorisation from ANVISA.

Vitamin and Mineral Supplements

Brazilian health surveillance legislation regulates advertising claims for vitamin and mineral supplements, which must be fully recognised and previously authorised by ANVISA (Secretaria de Vigilância em Saúde/Ministério da Saúde (SVS/MS) Ordinance 32/1998).

Medical Devices

Advertising of medical devices may be carried out, with restrictions, under the terms of RDC 751/2022 of ANVISA.

Products for Early Childhood

The Brazilian Standard for the Marketing of Food for Infants and Toddlers, Nipples, Pacifiers and Bottles (NBCAL) is a set of standards that regulates the commercial promotion and labelling of foods and products intended for newborns, infants and children up to 3 years of age. Its objective is to ensure the appropriate use of these products so that there is no interference in the practice of breastfeeding, subject to penalties under Law 6347/77 and the CDC.

The insertion of a product or brand in entertainment content (product placement) is a permitted advertising practice in Brazil if the advertising nature is clearly identified at some point, whether at the beginning or end of the transmission, video, clip or game.

Betting

Law 14,790/2023 (the new sports betting law) regulates betting advertising and the taxation of these bets. Self-regulation also brings specific rules (Exhibit X in the CBAP).

Crop Protection Products

The advertising of crop protection products (agricultural pesticides) must be restricted to programs and publications aimed at farmers and livestock breeders, containing a complete explanation of their application, precautions in use or consumption and, whenever necessary, warnings about the harm resulting from their use (Article 220, Section 4º of the Brazilian Federal Constitution, Law 9294/96 and Decree 2018/96).

Self-regulation also brings specific rules, provided for in the CBAP (Exhibit R).

Medical Doctors, Hospital Services and Treatments

In 2023, the National Council of Medicine updated the rules on medical advertising through Conselho Federal de Medicina (CFM) Resolution 2,336/23, addressing the rules and limits for advertising especially regarding social networks. Self-regulation also brings specific rules (Exhibit G in the CBAP).