Advertising is an economic matter, not a political one

nila44

The Declaration of Economic Freedom Rights arrived to establish free market guarantees, covering Civil, Administrative, Labor, Constitutional Law, etc. The proclamatory air, with a Jeffersonian spirit , came through a provisional measure, unconcerned with relevance and urgency, which once again attests that the Constitution is valid for everyone, except for the government.


Among the various measures is the creation of the figure of abuse of regulatory power consisting of “restricting the use and exercise of advertising in an economic sector, except in cases expressly prohibited by law”. It is important to highlight, in the absolute first place, that the law finally expressly recognized what some stated, although with little resonance: that advertising is a matter of an economic nature, not a political one, affecting mainly the exercise of productive activities, not freedom of expression. Its place, now self-proclaimed, is article 170 of the Constitution, not article 220. As I have already argued, paragraph 4 of article 220, which authorizes the restriction of advertising for tobacco, alcoholic beverages, pesticides, medicines and therapies, can be transplanted, without the use of anesthetics, to a second paragraph of article 170.

Secondly, even preliminarily, the wording of the text raises a question: is it abusive to restrict advertising about an economic sector (production and marketing of tobacco, for example), except in cases expressly B2B Lead prohibited by law? In other words, will it not be possible to restrict advertising in cases where the law prohibits restricting it? Or would the legislative president's intention have been to say that it is abusive to restrict, unless the restriction is authorized by law? Too elliptical for a legal text.

Thirdly, preliminarily, how should we interpret from now on article 220, paragraph 3, II, which provides legal means of defending the family (an institution so dear to the current government) from radio and TV programming that is offensive to the values ethical and social issues of the person and (once again the Constitution!) of the family, “as well as [reproducing the constitutional text] the advertising of products, practices and services that may be harmful to health and the environment”?

It seems that the creation of the figure of abuse of regulatory power by restricting advertising is addressed to certain measures, such as Resolution 163 of the National Council for the Rights of Children and Adolescents, which provides for “the abusive targeting of advertising and communication marketing to children and adolescents”. As has already been insistently said in different media, this resolution said nothing new, it only explained means of implementing the figure of abusive advertising that “takes advantage of the child's deficiency in judgment and experience” (article 37, paragraph 2, of the Defense Code Consumer Protection – Law 8,078/1990).



In fact, recently, the Minister of Women, Family and Human Rights asked Conanda (a body that is part of the ministry's structure) to review Resolution 163, which was denied by the advisors. However, it does not seem that the text of the MP achieves any restriction or prohibition on advertising aimed at children, because it is not characterized as an “economic sector” (I thank my colleague Fábio de Andrade for exchanging ideas in this regard).

Speaking of human rights, it is worth remembering that the UN special report on cultural rights, from 2014 (the Farida Shaheed report), recommends special attention, among others, to the rights of the child, food, health and education, sectors (here, yes, involving them) in which it is easy to see another correct address of the figure created by MP 881, namely, Resolution 24/2010 of the National Health Surveillance Agency (Anvisa), which restricts the advertising of foods considered with high amounts of sugar, saturated fat, trans fat, sodium, and drinks with low nutritional content. Anvisa is moving forward with a new regulatory process that takes care of food labeling, a matter in which it is modeling the Chilean system (an economic model reference for many), which prohibits the advertising of processed foods that contain warnings about excess sugar, fats or sodium.