Offer And Advertising In Consumer Relationships

Author:Ms Lucia Ancona Lopez De Magalhães Dias
Profession:Magalhães e Dias – Advocacia
  1. Introduction - 2. On the advertised offer and how it is binding upon the supplier - 3. Misleading advertising - 4. Abusive advertising - 4.1. Advertising for children- 5. Comparative advertising - 6. Civil liability for illicit advertising.

  2. Introduction

    Advertising and the limitations related thereto are governed by articles 36 through 38 of the Consumer Defense Code ("CDC"). More than 25 years since the CDC was enacted, with unprecedented and express reference to advertising in its text, the subject is still evolving, but the Code and its guiding principles remain the most effective instrument to deal with the newest (as well as more traditional) forms of commercial expression.

    Article 37 of the CDC regulates commercial content information that may lead to a consumption relationship between the supplier and the receiver. Advertising that shares information not related to an economic activity (for example, religious, philosophical and political propaganda), in principle, is not included in the concept of advertising established by the article, which is explicit with respect to the control of information of "advertising nature" - meaning that which directly or indirectly entails an economic purpose.

    On this particular point, it is important to keep in mind that commodification of values is ever-rising, which turns certain efforts a priori imbued with clear propagandistic content into paradigmatic advertising pieces to stimulate true exchange relationships. Along those same lines, in light of the constant technological innovations, especially the Internet, certain messages that allegedly have no economic aim may also fall under the control of the CDC, since in this case, the economic intention will have been masked by the supplier or third party contracted by it. Under these circumstances, there is a violation of the principle of identification as an advertising message, which establishes that all advertising should be "easily and immediately" identified as such (art. 36, main section). According to this principle, clandestine messages are banned, as is any subliminal advertising.

    So, within the scope of advertising, the CDC instituted a set of principles specific to advertising1, which is fundamental for the control of the most varied publicity techniques and also defines the concepts of misleading and abusive advertising.

  3. On the advertised offer and how it is binding upon the supplier

    Before we can move on to the analysis of illicit advertising, some considerations must be made about the concept of offer, as established in article 30 of the CDC, according to which any sufficiently precise information or advertisement is binding on the supplier that disseminates it or makes use of it, becoming an integral part of any contract entered upon.

    The rule seeks to keep legitimate consumer expectations from being frustrated when faced with sufficiently precise offers or advertising, and imposes upon the supplier the obligation to enact contracts under the exact terms of the advertised offer. Hence, it introduces the principle of the binding nature of the advertising message into consumer business relationships, by creating rights and obligations arising from public advertising.

    Not all advertising, however, contains an offer. At times, an advertising piece might not even offer information about goods and services, as is the case, for example, of institutional ads or merchandising efforts in which the product is merely displayed.

    Furthermore, it is also correct that not every offer is made through advertising. To the contrary, products are offered through simple exposure in automated machines (e.g. coffee machines, soda machines), by simply providing a consumer with an estimate for a product or service, by display of merchandise in store windows or labels, etc.

    Nevertheless, if the advertising presents in its contents "sufficiently precise information" about goods and services offered, then it will be treated as an offer and will be binding upon the supplier, obliging it to fulfill the terms. In order for this binding nature to arise, the offer needs to be: (i) broadcast through any means of communication in relation to the goods and services offered, which presupposes its exposure to consumers; and (ii) sufficiently precise. The term "sufficiently precise" does not require that the offer be total, which is to say, it does not need to contain all the elements of the future contract; a reference to a single characteristic of the product is sufficient to bind it to the supplier.

    Therefore, as far as the CDC is concerned, if an advertising offer is sufficiently precise - irrevocable and irreversible - and it is accepted by the consumer within a fixed period of time, or another period deemed reasonable, the contract is consummated. Any refusal on the part of the advertiser to meet it gives the consumer the right to demand forced fulfillment of the offer (art. 35, I) or, if that is not possible, to accept another equivalent product or service (art. 35, II), in both cases through the specific relief device (art. 84, main section, CDC). If a contract has already been enacted, the consumer may also choose to terminate it, with right to restitution of any amount paid in advance...

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