Issue:
A lawsuit (Sadia S.A. v. PROCON-SP) challenging the legality of a fine imposed against the company for a marketing campaign targeting children.
Summary:
Overview of the case: Sadia v. PROCON-SP
An organization from the civil society, Instituto Alana, has submitted an administrative complaint to the Consumer Protection Agency of the State of Sao Paulo [PROCON-SP]. The organization argued that the food company Sadia S.A. was targeting the marketing of their products to children. As a result, PROCON-SP issued an administrative decision that found Sadia S.A. in violation of advertising rules, and fined Sadia on the amount of R$305.000,00 (three hundred and five thousand Brazilian reais). After exhausting all administrative remedies, the company challenged this decision in the Court requesting to annull PROCON-SP’s administrative decision. This is the Sadia v. PROCON-SP case.
The campaign that resulted in the fine invited consumers to collect five differently colored stamps from product packaging. Those stamps along with an additional R$3.00 (three Brazilian reais), could be exchanged for Sadia mascot dolls, which were available in five collectible versions.
The lawsuit through the years
In 2011, a first instance trial court [14ª Vara Central de Fazenda Pública do Tribunal de Justiça do Estado de São Paulo] ruled in favor of Sadia S.A. It decided to annul the administrative decision and, consequently, the fine it had imposed on the company. PROCON-SP appealed and, in 2012, an appellate court upheld the lower court decision. However, PROCON-SP appealed again and, in 2020, the case reached the Superior Court of Justice [Superior Tribunal de Justiça – STJ]. The STJ ruled in favor of PROCON-SP, recognizing the abusiveness of food advertising explicitly or implicitly directed at children. These are the following highlights of the decision:
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Purchasing decisions about food lie with parents. This is especially considered in light of high rates of childhood obesity, which is a serious national public health problem.
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Under the Consumer Defense Code (article 37, paragraph 2), advertising campaigns cannot exploit or manipulate children’s imaginative universe.
Sadia S.A. continued to counter the decision. The company first presented a motion of clarification [embargos de declaração] and, then, it appealed to the Federal Supreme Court [Supremo Tribunal Federal – STF]. In this sense, the Rappouteur Justice Edson Fachin uphold the STJ decision that established such advertising as abusive and unlawful. Following the Rappouteur, the Second Chamber of the STF uphold the decision, mantaining the administrative sanction.