Sekmadienis v. Lithuania
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Judge Magnani Filho of the Court of Appeals of São Paulo, understood that advertisements directed at children are not abusive de per si. Far reaching laws that act to limit commercial speech are a form of censorship and create unduly state intervention upon fundamental rights.
On 2010, the Consumers Protective Foundation of São Paulo – PROCON-SP – imposed a BRL 3,192,300.00 fine against Arcos Dourados Comércio de Alimentos Ltda. (McDonald’s) alleging that the commercial promotion of the product “McLanche Feliz” or a “Happy Meal” – a meal containing a burger, soda, french fries, and a toy – was targeted at children to make unhealthy decisions. Thus violating the Brazilian Consumers’ Code and Resolution (163/2014) held by the Children and Youth Rights’ National Board (Conselho Nacional dos Direitos da Criança e do Adolescente – CONANDA).
On May, 7, 2013, McDonald’s filed a lawsuit to annul such fine, alleging, basically, that infantile advertisings are not forbidden by legislation, and such promotion is not abusive. The lower judge sustained McDoland’s reasons and annulled PROCON-SP’s fine.
In response, PROCON-SP appealed with the Court of Appeals of the State of São Paulo, alleging that, basically: a) such advertising was abusive, according to Resolution 163/2014 from CONANDA; b) was aimed at children as a consumer strategy; c) was a clear strategy to capture children’s interests in a way to influence family’s decisions; d) the imposed fine was legal and proportional; and e) McDonald’s conduct was extremely serious.
On July, 29, 2015, J. Magnani Filho delivered the opinion to the Court upholding the lower court’s decision annulling the imposed fine.
J. Filho started with four fundamental premises: a) Brazilian society is ruled by a capitalist model, and the consequences of this economic and social choice must be assumed; b) parents are responsible for the welfare of their children, including teaching them healthy lifestyles and limiting access to things that may negatively affect their mental, social and physical condition; c) through proper care since birth and authority of their parents, well-educated children would certainly know how to and when to resist unhealthy compensation; d) the state puts its imperial power at risk when acts paternalistically and overwhelms families’ primary obligations, with regards to the comments made by the Civil Society Organizations’ militancy.
Furthermore, J. Filho considered that, based on the capitalist model, advertisers work to catch the attention of a specific population, creating advertisements according to the target audience. Regarding children, strong colors, images reflecting happiness and gifts engaging with infantile characters are examples of advertisements that are designed to catch children’s attention. Nevertheless, it does not mean that watching such advertisements imply purchasing of the product or service offered. Every purchase is submitted to a previously rationalized decision, and to be deemed abusive, one advertising must imply clear damages to the moral, intellectual, social and familiar reality of the child.
The state should not be able to prohibit children-driven advertising based on the State’s power to regulate commerce, solely because such advertisements are targeted towards children. In doing so, the state would be acting as the so-called “nanny state”, interfering with fundamental rights and flirting with totalitarianism.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court upheld the impossibility of an abstract and general prohibition upon commercial speech, mainly considering infantile advertisements. To be illegal, advertisements directed to children must be caustically deemed to be abusive or deceptive. Therefore, if the content is not abusive, regulation or banning of commercial speech of this category would be authoritarian and, thus, unconstitutional.
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.
Other cases involving marketing strategies targeted towards children and teenagers can be influenced by this decision. Moreover, the decision can be applied as a persuasive precedent even in cases involving commercial speech of other products and services offered to minorities.
Let us know if you notice errors or if the case analysis needs revision.