Brazil · Decision · Judicial

Office of the Prosecutor of the State of Sao Paulo v. Pandurata Alimentos LTDA

Issue:

A public civil lawsuit [ação civil pública] due to abusive marketing targeting children and "product tying" (the practice of selling one product or service as a mandatory addition to the purchase of a different product or service).

Summary:

In 2007, Instituto Alana filed a complaint with the Office of the Prosecutor of the State of Sao Paulo [Ministério Público do Estado de São Paulo]. The complaint focused on two issues: marketing targeting children and the practice of “product tying.” This practice involves making the purchase of one product or service mandatory when buying another. Notably, the complaint highlighted the acquisition of Shrek watches, which required the purchase of five pieces of “Gulosos” cookies.

In response to this situation, the Office of the Prosecutor of the State of Sao Paulo filed a public civil lawsuit [ação civil pública] against Bauducco arguing that the company’s marketing campaign to sell cookies along with Shrek watches constituted abusive marketing. Subsequently, the Superior Court of Justice ruled that this case exemplified deceptive advertising and that Bauducco’s marketing campaign violated the Brazilian Consumer Defence Code. The violation also occurred due to the direct targeting of children in the content of the advertising.

The Superior Court of Justice further concluded that the circumstances of the case involved two forms of abusive advertising. Firstly, it involved the promotion of food sales, either directly or indirectly, to children. Secondly, it encompassed the practice of product tying, which is deemed illicit even in legal business relationships between adults. Moreover, in the context of marketing that exploits or manipulates the recreational universe of children, this practice is even more objectionable.