(Apr. 22, 2014) Brazil’s National Council of the Rights of the Child and the Adolescent (Conselho Nacional dos Direitos da Criança e do Adolescente, or CONANDA) issued Resolution No. 163 on March 13, 2014, banning ads targeting children. The Resolution, which entered into force on the date of its publication in the country’s Official Gazette considers abusive all types of advertising and marketing communications (comunicação mercadológica) designed to target children and adolescents, in accordance with the national policy on the care of children and adolescents provided for in articles 86 and 87, sections I, III, V, of Law No. 8,069 of July 13, 1990. (Conselho Nacional dos Direitos da Criança e do Adolescente, CONANDA (last visited Apr. 17, 2014); Resolução CONANDA No. 163 (Mar. 13, 2014), DIÁRIO OFICIAL DA UNIÃO No. 65, Seção 1, 4 (Apr. 4, 2014); Estatuto da Criança e do Adolescente [E.C.A.], L Law No. 8,069 (July 13, 1990), art. 1, PLANALTO.)
Definition of Marketing Communications
The Resolution defines marketing communications as any activity of commercial communication, including the advertising of products, services, brands, and companies, regardless of the form, media, or means used (Resolução CONANDA No. 163. art. 1§1). Marketing communications include, among other tools, print ads, television commercials, radio spots, banners, websites, packaging, promotions, merchandising, promotional activities during concerts and performances, and arrangement of products at points of sale (id. art. 1(§2)).
Under the new Resolution, it is considered abusive to engage in the practice of targeting children in advertising and marketing communications with the intention of persuading the children to consume any product or service using, among other means, childish language, special effects, and excessive colors; soundtracks with children’s songs, including those ones sung by children; representations of children; images of people or celebrities who appeal to children; characters or hosts of children programs; cartoons or animation; dolls or similar products; promotions with distribution of prizes or gifts or collectibles that appeal to children; and promotional competitions or games that appeal to children (id. art. 2).
The above provision applies to advertising and marketing communications issued at places, events, public spaces, websites, or television channels, among other venues, at any time, through any form or media, whether the communication is a product or service related to childhood or related to the adolescent and adult audience (id. art. 2(§1)).
Marketing communications within daycare centers and educational institutions, from kindergarten to elementary education, including marketing communications placed on school uniforms or in textbooks, is also considered abusive (id. art. 2(§2)).
Resolution No. 163 does not apply to public service campaigns that do not constitute an advertising strategy and that concern information about good nutrition, safety, education, health, and other matters related to better child development (id. art. 2(§3)).
Article 3 of Resolution No. 163 lists the general principles that must be applied to marketing communications targeting adolescents, including those foreseen in the Federal Constitution, the E.C.A., and the Consumer Defense Code. (Constituição Federal [C.F.] (Oct. 5, 1988), PLANALTO; Código de Defesa do Consumidor, Law No. 8,078 (Sept. 11, 1990), PLANALTO.)
The Council is the highest collegiate body within the federal government in charge of developing, discussing, and monitoring public policies for children and adolescents in the federal sphere. CONANDA was created by Law No. 8,242, of October 12, 1991 (Lei No. 8.242, PLANANTO) and is responsible for putting into effect the rights, principles, and guidelines contained in the E.C.A. (Press Release, Ministério da Justiça, O que é o CONANDA (last visited Apr. 17, 2014).)
The Brazilian Constitution, determines, inter alia, that health is a social right (C.F. art. 6) and that it is the duty of the family, the society, and the State to ensure to children and adolescents, with absolute priority, the right to life, health, nourishment, education, leisure, professional training, culture, dignity, respect, freedom, and family and community life, as well as to guard them from all forms of negligence, discrimination, exploitation, violence, cruelty, and oppression (C.F. art. 227).
Paragraph 1 of article 227 of the Constitution further establishes that the state must promote full health assistance programs for children and adolescents, allows the participation of non-governmental entities, and determines that the following precepts must be regarded by the State:
· allocation of a percentage of public health care funds to mother and child assistance; and
· creation of preventive and specialized care programs for the physically, sensorally, or mentally handicapped, as well as programs for the social integration of handicapped adolescents, including training for a profession and for community life and facilitating access to public places and services, by eliminating prejudice and architectural obstacles. (Id.)
Brazil enacted the Child and Adolescent Statute through Law No. 8,069 of July 13, 1990, which provides for the full protection of the child and the adolescent (E.C.A., art. 1). For the purposes of the law, a child is considered to be a person less than 12 years of age and an adolescent is a person between 12 and 18 years of age (id. art. 2).
Article 86 of the E.C.A. determines that the policy for the enforcement of the rights of children and adolescents must be set through a coordinated government and non-government actions, involving the Union, the states, the Federal District, and the municipalities (id. art. 86).
Article 87 sets parameters for the enforcement policy, which includes, but is not limited to: basic social policies (id. at I); special preventive services and medical and psychosocial care for victims of neglect, abuse, exploitation, abuse, cruelty, and oppression (id. at III); and legal and social protection provided by agencies engaged in the defense of the rights of children and adolescents (id. at V).