Supreme Court confirms constitutionality of the prohibition of food advertising in basic education premises
On September 25, 2016, the State of Bahia enacted Law No. 13,582 prohibiting advertising of food and beverages low in nutrients and high sugar, saturated fats or sodium levels, in public and private schools.
The Brazilian Association of Radio and Television Broadcasters (Associação Brasileira de Emissoras de Rádio e Televisão – ABERT) rushed to file a motion claiming that such Law was unconstitutional (Direct Motion of Unconstitutionality – ADIN – No. 5,631).
Due to the importance of the topic, the Brazilian Association of Advertisers (Associação Brasileira de Anunciantes – ABA) and the Brazilian Association of Licensing of Brands and Characters (Associação Brasileira de Licenciamento de Marcas e Personagens – ABRAL) joined the motion as amicus curiae, bringing important arguments to the case.
Last week, the Supreme Court (STF) unanimously understood that the Law in question is constitutional and that the State may impose restrictions aimed at protecting the health of children and adolescents.
The Reporting Minister, Edson Fachin, relied his decision on WHO’s Resolution No. 63/14, which recommends that countries should regulate the advertising of food rich in fat and sugars.
Despite the fact that the Brazilian Federal Constitution brings an exhaustive list of matters that are of exclusive responsibility of the Union to legislate (Article 22), the Minister pondered that the Constitution also establishes that Union, States and Municipalities should legislate on the protection of children and youth (Article 24, item XV).
According to the Reporting Minister, limiting advertising at schools is a way of protecting the health of children and adolescents. Furthermore, the Law in question makes it possible for the State of Bahia to protect the health of children and adolescents within schools without violating the Federal Constitution and in a proportional manner.
The votes of the other Ministers also highlighted that the purpose of the Law is to protect the health of minors in schools and not to restrict commercial advertising (thus encompassing the competing competence attributed to States and Municipalities).
In this regard, the decision shows that the Supreme Court defends the primacy of the States over the Union when it comes to fundamental rights.
Although the discussion was limited to schools in the State of Bahia and only to certain types of food, it is important to note that the Law does not prohibit advertising aimed at children.
Advertising aimed at children is a lawful activity, duly trimmed by law and regulated by society through the Brazilian Advertising Self-Regulation Code, which properly establishes the specific limits and conditions for conducting ethical advertising for this audience.