United States: Spotting Advertising In Brazil: Does Size Matter?

The Consumer's Defense Code ("CDC") is the set of rules that governs business between consumers and suppliers in Brazil. Consumer Protection lies on principles (as good faith) that grant broad interpretative freedom to the local consumer protection agencies and, particularly, to judges and justices, aiming at the protection of those that might have been caught in the traps of suppliers.

Among the provisions set forth in the CDC is the protection against misleading advertising. According to Section 37, an advertising is misleading if it does not reflect the characteristics of the product or service advertised.

Even though the CDC does not provide requirements regarding the font size used in advertisement, governmental agencies (such as PROCONs - consumer protection agencies), local regulations and some court precedents attempt to impose further obligations to suppliers and, therefore, a pattern to be used when advertising. The most common of them is the application of the rule set forth in Section 54, paragraph 3rd, which establishes that in standard contracts the font size cannot be smaller than 12 points. This subject gave rise to class actions and investigation proceedings over the country, filed against suppliers that published offers with font size smaller than 12 points.

Decisions from governmental agencies do not create binding patterns that suppliers must follow, although it is recommended to observe these commands to avoid the issuance of further penalties in view of alleged breach of consumer's protection rules. Besides that, there are local regulations (at state and municipal levels), for instance, in the States of Rio de Janeiro ¹, Piauí ², Mato Grosso do Sul ³ and Goiás ⁴, providing specific rules regarding advertisement, such as the size of the font depending on the information conveyed (e.g., installment amount or spot price). These local regulations impose greater burden for suppliers that operate nationally, in view of the lack of uniformity between the rules applied by some states and municipalities.

The principles that guide the provisions of the CDC allow courts a greater freedom when interpreting ads for consumers. There are rulings from São Paulo Court of Appeals that convicted suppliers for misleading advertisement based on the font size (deemed smaller than necessary). The grounds of such decisions were the following: (i) Section 54, paragraph 3rd of the CDC "should be interpreted systematically, applying to all matters involving Consumer Law" ⁵ and (ii) "there is a provision defining the minimum font size" ⁶ – but in the context of standard contracts, we emphasize.

However, the Superior Court of Justice ("STJ"), which has the role to standardize case law across the country, recently issued a decision concluding that an advertising piece cannot be considered misleading for using font size smaller than 12 points. ⁷ The decision expressly mentioned the existence of distinguishing elements between standard contracts and the advertising context, such as the recipient and the type of document, which prevent the application of Section 54 of the CDC. Moreover, the decision mentioned the economic aspect involved, as "the space occupied by letters has a significant cost in ads published in the press", and a rule providing for a minimum font size would imply changes in the newspapers' layout, adding even more costs.

Even though the decision rendered by the STJ seems reasonable and correct from the legal standpoint, the fact is that there is no certainty for suppliers to conduct their advertisement practices. Brazil already has an overwhelming protective Consumer Law in comparison with other jurisdictions and yet grants room for even stricter interpretations by governmental agencies and courts. On the other hand, the precedent from the STJ blows some hope while interpreting the law in view of the economic impact of judicial decisions in the market – although it is a known fact that consumer protection agencies, judges and justices do not always observe court precedents, leading to legal uncertainty and allocating higher costs to suppliers.

Footnotes

^{1 Law n 6.419/2013. Section 1 of this Law provides that "In posters containing prices of products exposed for sale in stores, or in any type of media transmitted in the State of Rio de Janeiro, the size of the value of the installment amount should always be smaller than the size used for the disclosure of the spot price".}

^{2 Law n. 6.193/2012.}

^{3 Law n. 5.065/2017.}

^{4 Law n. 17.838/2012.}

^{5 Lawsuit n. 9080211-89.2008.8.26.0000, São Paulo Court of Appeals, ruled in March 2012.}

^{6 Lawsuit n. 0042873-50.2002.8.26.0000, São Paulo Court of Appeals, ruled in August 2011.}

^{7 Lawsuit n. 1.602.678 – RJ, Superior Court of Justice, ruled in May 2017.}

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