judged the Public Civil Action of the MP/SP, which originated from the Alana Institute's actions, in a true leading case: advertising food aimed at children is prohibited.
Bauducco's “It's Time to Shrek” campaign was the object of the action. It was a promotion, whose modality was characterized as tied sales. To participate, the children had to buy the “Gulosos” product and present 5 (five) packages of the stuffed biscuit, in addition to paying R$ 5.00, to exchange for a watch of the “Shrek” characters.
The Campaign was considered abusive in two ways: first, because it was aimed at children and, second, because it was considered tying, which is an abusive practice and condemned not only by the Consumer Defense Code but also by the Advertising Self-Regulation Code of the Conar.
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The Judge-Rapporteur Humberto Martins concluded that the judgment of the São Paulo Court of Justice, which upheld the Public Civil Action, was irreparable.
In turn, Minister Herman Benjamin, who is considered a great authority in Consumer Law, agreed with the rapporteur's vote and categorically added:
“Today's judgment is historic and serves the entire food industry. The STJ is saying: it's over and that's the end of it. (…) it means recognizing that the authority to decide on the children's diet rests with the parents”.
It is worth remembering that this decision is extremely relevant, but the discussion about banning children's advertising in Brazil has been going on for many years. We even have Bill No. 5,921/2001, which has been under discussion for 15 years, in addition to the decision published last week, in which the Brazilian Association of Soft Drinks and Non-Alcoholic Beverages (Abir) decided to restrict advertising childishly.
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Finally, this decision will certainly still be widely discussed, especially with regard to its application. However, for now, our recommendation is that no advertisement by companies that sell food is directed to children, under penalty of public civil actions, or consumer complaints, with requests for preliminary injunctions, to condemn advertisers to pay indemnities, the amounts of which may vary, depending on the economic size of the company and the return on investment in media generated by the ad for companies, in addition to administrative sanctions, ranging from fines, seizure of the product, temporary suspension of activities, to the imposition of counterpropaganda, among others.
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