New Rules Restricting the Advertising of Food

Amidst the celebrations surrounding the qualification of the Brazilian national football team for the quarter-finals of the World Cup, the National Health Inspection Agency (ANVISA in Portuguese) adopted one more of its controversial measures. On June 30th 2010, without any prior announcement, Resolution RDC No. 24 was published in the Official Gazette, having been signed by ANVISA on June 15th 2010, It concerns nothing less than a set of rules specifically restricting the advertising of all or any foods, including non-alcoholic drinks.

The Resolution states that the advertising of food products considered to have a high content of sodium, sugar, saturated fat or trans fat, and even drinks with a low nutritional value, must contain the following warnings, as appropriate:

a) "(name/ trademark of the food) contains a lot of sugar and, if consumed in large quantities, increases the risk of obesity and of dental cavities."

b) "(name/ trademark) contains a lot of saturated fat and, if consumed in large quantities, increases the risk of diabetes and heart disease."

c) "(name/ trademark) contains a lot of trans fat and, if consumed in large quantities, increases the risk of heart disease."

d) "(name/ trademark) contains a lot of sodium and, if consumed in large quantities, increases the risk of high blood pressure and heart disease."

The administrative order provides a period of 180 days for companies to update their advertising to the new rules.

The following categories of food are exempt from complying with this requirement: food additives and enhancing agents; fruit, greens and vegetables; fruit juice; nuts, chestnuts and seeds; refrigerated and frozen natural meat and fish; milk; yoghurt; cheese; legumes; olive oil; vegetable oil and fish oil. This exemption will only be valid if the amounts of sodium, sugar, saturated fat and trans fat contained are intrinsic to the food, that is, these exceptions do not include products that have had the nutritional values of these substances altered.

Non-compliance with ANVISA’s rules will be classified as a health violation and will subject the infringers to penalties that vary from a fine to the cancelation of the product registration.

This order suffers from a legal defect from the outset, since the government agency does not have the power to regulate the advertising of food and non-alcoholic drinks without prior provision by Federal Law.

Article 22, subsection XXIX of the Federal Constitution, determines that only the National Congress can legislate on commercial advertising (private jurisdiction).

Strengthening this provision and, at the same time, burying once and for all the grounds invoked by ANVISA to justify its legislative headquarters, article 220, II, of the Federal Constitution prescribes that "it befits federal law to establish the legal means which guarantee the individual and the family the possibility of being defended from the advertising of products, practices and services that might be prejudicial to health and the environment."

You might be aware that ANVISA is a regulatory agency connected to the Executive Branch of the Government. There is no federal law approved by congress that limits the advertising of food products, with the exception of alcoholic beverages. In this context, the violation of the Federal Constitution by RDC No. 24/2010 is clear, regardless of the good intentions that are behind this regulation.

Various trade associations have already made clear their distaste for ANVISA’s Resolution No. 24/2010, including CONAR – the National Council for Advertising Self-regulation, ABA – the Brazilian Association of Advertisers, ABAP – the Brazilian Association of Advertising Agencies, and ABERT – the Brazilian Association of Radio and Television Broadcasters, amongst others.

It is worth remembering that, in the field of ethics, CONAR already has a Code of Advertising Self-regulation, with specific articles about food advertising for children and young people. Until now, this initiative has been shown to be sufficient to meet the demands of society in relation to this sector.

Nevertheless, ignoring the sector’s self-regulation initiative and dispensing with any public debate on the matter, ANVISA has opted to increase its activities in an arbitrary and, as can be seen, illegal manner.

If ANVISA does not revoke its act soon, food companies will have to commence legal proceedings, either individually or by means of the representative trade associations, in order to guard their rights and avoid the severe health sanctions set out in this administrative act.

With the ALANA Institute (an NGO that defends the rights of children and adolescents) already declaring their support, ANVISA is resisting the opposition and promises to make some noise. If, one the one hand, ANVISA’s Resolution No. 24/2010 is clearly illegal, then on the other, the strong popular appeal of this debate cannot be ignored, something which is especially dangerous in an election year for federal and state arenas.

In this scenario, in addition to the legal measures to neutralize ANVISA’s legislative will, it is worth monitoring the impact of the matter in the press and especially in Congress.