Accountability matters: Restricting advertising of unhealthy food in Brazil

Brazil enacted the Consumer Defence Code (CDC) in 1991 as a means to protect consumers from deceptive advertising. The English version of the CDC is available here. 

In the Section III, Art. 37 it states that “Any misleading or abusive advertising campaigns are prohibited. § 1. Any information or public communication that is entirely or partially false or is in any way, even through omission, capable of inducing the consumer to make a mistake regarding the nature, characteristics, quality, quantity, properties, origin, price, and any other information about products and services will be considered misleading”. Also, it categorises advertising that exploits a child's judgement or tempts consumers to make choices which could damage health. Additionally, the National Council of Children and Adolescents' Rights introduced a set of resolutions to regulate abusive advertising targeted at children [2]. These resolutions aim to identify marketing techniques deemed deceptive for children and adolescents.

Nutritional Labelling Law & Front-of-Package Nutrition Labelling (FoPNL)

Brazil took an important step in raising awareness about healthy eating and empowering the public by introducing a law in 2001 that mandated the inclusion of nutritional labelling on packaged foods. The law was revised in 2006 to strengthen its impact. However, enforcement of front of pack nutrition labelling (FoPNL) has been ongoing since 2014. The industry has employed various strategies to delay the regulation's approval, including emphasising potential job losses and damage to the economy. Despite these challenges, progress has been made, and in October 2020, the final nutrition labelling regulation was formulated. This regulation introduced a mandatory FoPNL in the form of a magnifying glass and established guidelines on format, content, and legibility of the nutrition facts panel. However, the regulation fails to ban all health and nutrition claims on products. This leaves consumers vulnerable to potential misleading effects of other nutrition claims. In Brazil, almost half of all processed food packaging contain misleading information such as “source of calcium”, “less sodium”, “less sugar”, and “natural”, etc. [3]. 

The Resolution on Advertising to Children

In 2014, the National Council of Children and Adolescents' Rights took a firm stance against advertising targeted directly to children and adolescents. This resolution aligns with national policies on caring for young children and specifically identifies tactics such as childlike language, special effects, and vibrant colours that grab children's attention. It also discourages the use of children's songs, images of kids, famous figures/celebrities liked and recognised by children, characters from children's programmes, and promotional offers designed to entice children. Competitions or games that appeal to children are also deemed unacceptable [1]. 

The Battle Continues: Challenges and Initiatives

Unhealthy food and beverage advertisements have caused a heated legal debate. On one side, there is the online platform Observatory of Food Advertisement (OPA). This platform allows the public to report misleading or abusive adverts, which are then analysed by legal teams and can potentially lead to legal action. Information on current ongoing cases is available here.

The food and beverage industry have launched their own campaign, called 'Take Responsible Advertising Seriously,' aiming to promote responsible advertising practices and arguing for companies' ability to set high standards [1]. The debate revolves around whether children should be protected from all advertising, especially when it comes to unhealthy products, or if each case should be evaluated individually.

The Legal Complexities 

In Brazil, every reported advert must be assessed by The National Council of Advertisement Self-Regulation. For an advertisement to be banned, it must be fully or at least partially false. Also, unlike tobacco and alcohol adverts, there are no objective legal restrictions on unhealthy food promotion. This often causes a lot of arguments and subjective resolutions. The Council openly declare their mission to protect “free speech in advertising”, hence, this establishes the basis for their approach in making decisions.

For example, back in 2011, The Council dismissed a complaint filed by a non-governmental organization regarding McDonald's advertising their products during the preview of the animated film "Rio." During the case, The Council portrayed the NGO negatively, arguing that they wanted children to only have water and bread by depriving them of “treats” like cheeseburgers, fries, and milkshakes [1].

Positive developments: State-level legislation 

Efforts to establish specific federal laws regulating the advertising of unhealthy food and beverages in Brazil have faced challenges. However, there have been significant developments at the state level. In March 2021, the Supreme Federal Tribunal, Brazil's highest constitutional court, upheld a state law in Bahia that prohibits commercial communication to children in primary schools. This law was challenged on the grounds of violating freedom of commercial speech by the Association of Radio and Television Networks. The court ruled unanimously that commercial speech falls under freedom of speech, but that this freedom is not absolute and can be subject to reasonable restrictions. The court emphasised the government's role in regulating unhealthy food and beverage advertising, taking into account recommendations from the World Health Organization [1]. 

This decision sets a precedent for other states to pass legislation restricting commercial communication. Specific restrictive law like the one in Bahia can play a crucial role in protecting public health from commercial interests and influences.

References 

[1] Barbosa, I., Leite, F., & Britto, C. (2022). Restricting Unhealthy Food and Beverage Advertising in Brazil: Challenges and Opportunities. Journal of Law, Medicine & Ethics, 50(2), 291-297. doi:10.1017/jme.2022.54

[2] Guimarães JS, Mais LA, M Leite FH, Horta PM, Santana MO, Martins APB, Claro RM. Abusive advertising of food and drink products on Brazilian television. Health Promot Int. 2022 Apr 29;37(2):daab025. doi: 10.1093/heapro/daab025. PMID: 34279624; PMCID: PMC9053462.

[3] Mais LA, Borges CA, Khandpur N, Duran AC, Martins APB. Brazil's nutrition labeling regulation: Challenges ahead on the path to guaranteeing consumer's right to adequate information. Front Nutr. 2022 Nov 22;9:921519. doi: 10.3389/fnut.2022.921519. PMID: 36483931; PMCID: PMC9724590.