The regulation of Advertising and Offer in the Brazilian Consumer Protection Code
Jun 22, 2015 QuickCounsel Download PDF
By Renata Pozzi Kretzmann, LLB from the Pontifícia Universidade Católica, Rio Grande do Sul (PUCRS), in Brazil and member of the Consumer Rights Research Group at PUCRS
The Brazilian Consumer Protection Code was created with the objective of balancing consumers relationships and to offer protection for those who consume. The Code aims to provide complete protection for the consumers, regulating behavioral and procedural aspects and stipulating rules for the market operation.
The publicity and its aspects are ruled in a section of the Code that provides general regulation about commercial practices. The message transmitted by the suppliers in the offer or in the advertising is very important because it is the first contact that the consumer has with the product or service. It is the first step of the communication between the two parts of the contract.
The purpose of the advertising is to introduce the good or the brand to sell the product or the service. This activity, however, must be developed in accordance with the Consumer Code.
Advertising and Offer
The regulation of advertising and offer is an interesting theme within Brazilian consumer law. Suppliers that intend to offer goods and services must follow established guidelines found in the Brazilian Consumer Protection and Defense Code.
The Code provides that the offer is any information or advertisement about prices and characteristics of a product or service that runs in the media and has to be presented as accurately as possible.
Actually the offer is a generic term and encompasses any form of communication or advertisement that aims at attracting consumers to purchase.
In the Brazilian law, the offer is binding i.e. anything that was offered must be performed. The message transmitted by the supplier is part of the contract that must be performed in accordance to the offer made in the advertising.
Such obligation is due to the principle of the contract's social function and good faith. It is present regardless the means and ways in which the offer was made.
The fulfillment of the offer
If the supplier refuses to perform what was offered, presented or publicized, the consumer can demand its fulfillment, accept another product or equivalent service or breach the contract. The latter entitles the consumer to the restitution of the anticipated amount with interests and may claim damages.
The offer will not be considered mandatory if it contains a noticeable error which is one immediately perceived by the consumer. Therefore, it does not mean that any type of mistake will exempt the supplier to perform the offer.
Since each case has its specifics characteristics, it is necessary to analyze them one by one in order to determine whether the mistake is excusable according to the characteristics of the advertisement, the place and the time in which it was run and the consumer personality.
Rules about advertisement
Besides considering the offer as part of the contract, the supplier must be careful when elaborating the advertisement that must be neither deceptive nor abusive, because it could be considered illegal.
Deceptive advertising is one that interferes in the consumer's decision, who believes the message as being true when it is not. The publicity may be misleading for inaccuracy or falsehood due to its content as well as the omission of important data.
If the advertisement is deceptive, the consumer does not purchase the product or contract the service consciously since he doesn't know the real features of what he is acquiring. The buyer's will is damaged and this interferes in the consumer relation that will be formed later.
The publicity make by any supplier must be entirely true and can't lead the consumer to an error. The publicity will be considered deceptive if it has potential to induce to an error and influence the economic behavior of the consumer.
A real damage is not necessary. Even though there are endless marketing strategies that are not considered typical advertising, they are subjected to the law and can't deceive consumers. Such examples are "retail as ambassador", telemarketing, packages and material sent by mail or e-mail and promotion slogans.
It must be clear that not any false publicity is deceiving. There are advertising messages that are purposely or intentionally false, but unable to lead the consumer to an error since they make use of satire, fantasy or exaggeration that are easily perceived as being false or exaggerated.
The real publicity may also be considered deceptive if it transmits data that is not false but rather ambiguous, imprecise or omit important information. It happens with advertisement that leads to confusion or double interpretation.
An important criteria to determine whether the publicity is deceptive is the profile of the consumers. The analysis of the concrete case will eventually establish the parameter to evaluate the illegality of the publicity.
The criteria of the reasonable consumer, which considers a minimum level of attention, is used in the decision that debate the occurrence of deceptive publicity, mainly in the collective actions.
For individual suits, it is common to adjust this model of consumer to each specific case in order to determine whether the publicity was illegal.
In such cases as misleading publicity due to omission, total hiding of the information occurs or the offer is made in an incomplete way. The information that can be read or understood by the public is considered misleading due to omission. It doesn't mean that any kind of omission makes the publicity illegal. The omitted information must be essential.
Duty to inform in publicity
The Brazilian law doesn't demand that all the characteristics of the product or service must be published because that would be impossible. However, it demands that the substantial information must be announced because they influence the choice of the consumers. Such information refers to the nature, quality, price and quantity of the goods.
The necessity to inform the consumer by means of publicity can't be confused with the wider duty to inform, which is both the duty of the supplier and the right of the consumer found in the Brazilian Consumer Protection Code.
Obligation to ensure supply of spare parts
In addition to informing consumers, suppliers and importers must ensure the supply of components and spare parts while not ceasing the manufacture of the product. This standard creates an obligation for the supplier in order to protect those who buy goods out of the market after a while.
Ceased production or importation, the offer must be maintained for reasonable period of time which is usually established by the jurisprudence, according to the characteristics of the product.
Sales on the internet
For offers that are made on the internet, phone or postal refund, the manufacturer's name and address must appear on the packaging, advertising and in all printed matter used in the commercial transaction.
Furthermore, it is prohibited any advertising of goods and services by phone when the consumer has to pay for the phone call.
Identification of the publicity
Advertisement that is transmitted in a way that cannot be identify as such by consumers is also considered illegal. All publicity must be conveyed in such a way that the consumer easily and immediately identifies it. This obligation exists so that the consumer can choose to read, listen or watch the propaganda or not.
Advertisements inserted in excerpts or movie scenarios, for example, are considered subliminal and are not permitted by Brazilian law. The consumer needs to know he or she is the target of publicity.
The burden of proof of the veracity of the information contained in advertising belongs to the advertiser. It is not enough that the data presented in the media is true, the supplier must be able to proof that it is.
Therefore, the Code provides that the supplier must keep in his possession factual, scientific and technical data that supports the message.
Crimes related to advertising
Issues related to advertising are also regulated by the criminal portion of the Consumer Protection Code.
Making false or misleading statement, or omit relevant information on the nature, feature, quality, quantity, safety, performance, durability, price or guarantee products or services; make or promote advertising which knows or should know to be misleading or abusive and advertise or promote advertising that know or should know is able to induce consumers to behave in a harmful manner or dangerous to his/her health or safety are considered crimes punishable by imprisonment and a fine.
Fail to organize factual, technical and scientific data that give the advertising base is also considered a crime but punished with detention or fine.
Suppliers that intend to offer goods and services must follow established guidelines found in the Brazilian Consumer Protection and Defense Code. The Code provides that the offer is any information or advertisement about prices and characteristics of a product or service run in the media and has to be presented as accurately as possible.
The Code also provides that advertisement that are deceptive nor abusive, are illegal. The communication between supplier and consumer that happens before the consolidation of the contract is very important because it becomes part of the contract and, therefore, it is ruled by the Code.
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