Brazilian Consumer Law: Advertising And Selling Rules On Goods Which Suffered Modification On Their Quantity

Author:Ms Rebeca Arruda Gomes (Veirano Advogados) and Paula Mader Araujo (Veirano Advogados)
Profession:Global Advertising Lawyers Alliance (GALA)

The Brazilian Consumer Defense Code provides that informed consumers are essential to a fair and efficient market (Law 8,078/1990). Packages and labels should enable consumers to obtain accurate information as to the quantity of their contents. If a supplier intends to modify - by decreasing or increasing - the quantity of a good which is already known by consumers on the market, a few advertising and selling rules must be strictly observed.

Aiming at protecting consumers from misleading advertising, the Brazilian Ministry of Justice issued Ordinance 81/2002 providing that packages and labels of goods which suffered modification of their quantity shall contain clear, ostensible and precise information - in a font of a highlighted size and color - that there has been a modification on the quantity of the good. Such warning shall additionally inform (i) the quantities of the good before and after the modification and (ii) the quantity of the good which has been increased or decreased in absolute and percentage terms. The information shall be available on the main (front) label for at least three months. The non-compliance with any provision of Ordinance 81/2002 shall characterize misleading advertising and a violation of the consumers' basic right of information and shall subject suppliers to a penalty of fine or detention. Practice of law shows, however, that the penalty of detention is never applied.

Suppliers shall furthermore adopt any other measures in order to make consumers absolutely aware that there has been a modification to the quantity of a certain good. The rule is: the more information, the better.

For instance, in Appeal # 1,364,915, the Brazilian Federal Superior Court of Appeals (Superior Tribunal de Justiça - STJ)1 found that a manufacturer of soft drinks was liable before consumers for the lack of accurate information regarding the reduction, from 600ml to 500ml, on the quantity of its products. The manufacturer contended that all information required by Ordinance 81/2002 has been added to the labels and that the price has been proportionally reduced according to the reduction of the quantity of the products. Nonetheless, the Court concluded that the information has been added to the back of the package (not to the main - front - label) and that the font, although in bold and caps lock, has been not of a highlighted size and color. The STJ confirmed the penalty of fine imposed by the...

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