The Brazilian government has been implementing over the last two decades a set of policies, programs and actions intended to promote healthy eating and guarantee food security and nutrition. Some of these measures involve stimululating the production and consumption of fruits and vegetables free of pesticides and other contaminants, foods that have not been eaten in sufficient quantities by Brazilians generally. However, such initiatives typically clash with commercial private sector practices that aim to increase the supply and marketing of processed foods whose consumption, in turn, has been growing. The nutrient composition of such products is characterized by high fat, sugar, and salt and its consumption has been associated with various health problems. These practices also contribute to environmental and social problems and even affect the cultural diversity of traditional Brazilian food¹.

The type of advertising practiced by these industries, in turn, has been considered harmful for violating a number of rights, especially those of children. In addition, it hinders the adoption of healthy food choices and affects household purchasing practices through persuasive and even unethical advertising strategies. Therefore, the regulation of the advertising of food products plays a strategic role as a measure of protection, especially to the most vulnerable to marketing appeals, such as children.

The regulatory panorama

The advertising market regulation emerged in Brazil in the 60s. However, it was the Federal Constitution of 1988 that ensured to the State the power to protect the population´s health from potentially harmful advertising strategies and practices. The Consumer Protection and Defense Code (Law 8078/90) includes various protective clauses against misleading and abusive advertising and has confirmed the 1988 text.

Currently, some regulations and practices represent important advances in this area, especially the Law 11.265 of 2006, which regulates the marketing of foods for infants and young children, and encourages breastfeeding exclusively for the first six months of age and its partial continuation after the introduction of other foods, of up to two years of age. Also Resolution RDC 24, 2010 of the National Health Surveillance Agency (Anvisa), which regulates and controls advertising and other related practices of foods with high amounts of sugar, saturated fat, trans fat, sodium and beverages with low nutritiona. Further, Resolution 163 of 2014 of the National Council for the Rights of Children and Adolescents (CONANDA) that defines as abusive the practice of targeting advertising and marketing communications to the child with the aim of persuading consumption. In addition to all of the above there exists, since 2000, 81 pending legislative proposals in Congress, especially PL 5921/2001 that prohibits advertising aimed at children, currently awaiting approval².

Conflict of interests and the role of the state

Despite these advances, RDC 24 was temporarily suspended by an injunction from the Federal Court, at the request of the Brazilian Association of Food Industries, which questioned the competence of Anvisa to regulate this subject³. This measure shows that there is a conflict of interests between the commercial private sector and certain sectors of government in the face of government strategies aimed at protecting the right to adequate and healthy foods, which was established in the Brazilian Constitution and Organic Law. This underscores the political influence of the private industry lobby in Brazil, highlighting the complexity of this regulatory field which is tasked with resolving practical, social, and political issues involving different actors⁴.

The issue of regulating food advertising still needs to evolve and there still is much discussion when it questioning the effects of advertising, especially on childrens education. The participation of the commercial private sector in the decision making process of policies whose practices hurt the principles guided by legislation, can delay or prevent the achievement of expected goals5. The challenge of promoting healthy eating persists and the State must assume its key role of regulating the advertising practices of food products to ensure and protect the rights involving the adoption of healthy dietary practices.