Hund v. Gov. Andrew Cuomo
In Progress Expands Expression
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The Attorney General filed a lawsuit against Congress to expand their definition of alcoholic beverages in a federal act regulating alcohol advertisements. Justice Cármen Lúcia, from S.T.F., ruled that there was no constitutional omission in the Federal Act regarding advertisements of alcoholic beverage above 13º GL. In part because the ruling on such advertisements does not impose an obligation upon Congress to define an alcoholic beverage in a certain man. The Judiciary or the Execuetive cannot impose a burden on Congress that the Constitution has not imposed.
On December 12, 2012, the Attorney General filed a lawsuit with S.T.F. claiming the Federal Act 9.294/96 was unconstitutional, the act restricts advertisements concerning alcohol and defines alcoholic beverages as those above 13º GL (so-called heavy drinks). According to the petitioner, that Act made an exception for advertisements of light drinks (beer and wine), conflicting with Article 220, 4th Paragraph of the Brazilian Constitution. Among the legal marketing regulations of alcoholic beverages, beverages above 13º GL (so-called heavy drinks) are prohibited from being advertised on the radio and TV between 6:00 am and 9:00 pm.
The Attorney General alleged that there is an inexplicable legislative delay in the regulation of alcoholic light drinks advertisements, which implies an omission over the commercial promotion of beers and wines, two of the most consumed beverages in Brazil. The Attorney General continued, by pointing towards the existence of two bills restricting advertisements of light drinks pending Congressional debate. The Attorney General explained that the harmful effect of alcoholic beverages and the role of mass marketing in its production make it essential that legislation is in place and that S.T.F must comply by granting the requested order.
Congress argued the lawsuit showed be dismissed, informing the Court that the Federal Act 9.294/96 had been deeply discussed by Congress for seven years before approval and the people’s representatives had made a conscious choice. Congress further argued, that there is an effective self-regulatory authority with rules over the commercial promotion of light drinks broadly fulfilled by advertisers, agencies, and publishers.
The National Broadcaster’s Association – ABERT – intervened as amicus curiae to ask for the suspension of the decision issued on three joint class action filed by Federal Prosecutor’s Office in Paraná, Santa Catarina, and the Rio Grande do Sul, all Southern Brazilian States, in which the local Federal Court granted the order to expand the legal restrictions issued by Federal Act 9.294/96 to include advertisements of light drinks. The Brazilian Association of Beer Producers – CERVBRASIL – also intervened as amicus curiae, claiming that that FoE and freedom of communications were at stake, since light drinks producers’ right to communicate and offer their products would be impacted. Finally, the National Psychiatrist Association, the last amicus curiae, linked the abuse in alcoholic beverages consumption to their marketing promotion, argued the importance of applying the same legal restrictions imposed on heavy drinks to light drinks in commercial advertisement.
On April 22, 2015, J. Cármen Lúcia delivered her opinion to the Court dismissing the Attorney General’s claim.
J. Cármen Lúcia stated that granting the claim would impose the Judicial branch on a constitutionally legislative manner, which is a direct violation of the Separation of Powers clause expressed in the 2nd Amendment of the Federal Constitution and codified in Article 60, 4th Paragraph, III of Federal Constitution (which prevents the amendment of Separation of Powers clause). In this sense, information brought to the record showing that the debate of Federal Act 9.294/96 lasted seven years discussed the inclusion of light drinks. In the end, legislators opted only to place advertisement restrictions on heavy drinks. The Court found that nothing about the decision to do so was unconstitutional.
J. Cármém Lúcia quoted the Brazilian Self-Regulatory Advertising Code, in which Attachments A, P and T enact a set of rules over the commercial promotion of alcoholic beverages. According to her, these rules are widely accepted and performed by the producers, and controlled by the National Advertising Self-Regulatory Board of Brazil – CONAR. Thus, it is improper to allege any omission to regulate advertisements of light drinks. She declared that electing alcoholic beverages as those above 13º GL for advertising purposes does not deny the alcoholic characteristic of light drinks, nor does it affect any other regulation or restriction codified in other acts, such as the Federal Act that penalizes individuals who engage in drunk driving.
J. Roberto Barroso in his concurrence, declared that there is no omission in the present case because the Constitution delegates the drafting of legislation expressly to Congress, thus the power to impose restrictions on alcoholic beverages advertisement and define the terms of those restrictions is Congressional. Similarly, J. Roberto Barroso concurred that the claim ignored the Congressional debate that occurred before the Federal Act 9.294/96 was enacted, and that Congress is the proper place to discuss the subject, not the Judiciary, and, finally, he clarified that there are other restrictions over advertising light drinks.
J. Marco Aurélio Mello concurred in both opinions, adding that the FoE is issued by the caput of Article 220 of Federal Constitution, and the interpretation of its 4th Paragraph must be made according to the caput.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court upheld the right to advertise light alcoholic drinks without the heavy restrictions of Federal Act 9.294/96 and considered the self-regulation currently placed on commercial speech to be sufficient to inhibit abuse in the advertisement of light alcoholic drinks. The Court did not further limit the commercial free speech of light alcoholic drinks.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The case will have precedent over all judicial decisions concerning the omission of the Federal Act 9.294/96.
Let us know if you notice errors or if the case analysis needs revision.