BRAZIL: New Sanitary Rules Require Use of Trademarks to Warn of Food Product Risks

On June 29, 2010, the National Sanitary Vigilance Agency (Agência Nacional de Vigilância Sanitária – ANVISA) issued Resolution RDC 24, regarding advertisements for food products considered to contain high amounts of sugar, saturated fat, trans fat or sodium, and beverages with low nutritional value. The aim of the resolution is to require manufacturers to provide information necessary to protect the public health, and in particular, to protect children against advertising messages that induce bad eating habits. The warnings must appear in the following manner: [TRADEMARK] contains a high amount of sugar and if consumed in large quantities increases the risk of obesity and cavities. The new warning statements are unique in that they will require a direct association between the mark of the producer and the warning message. The warnings are intended to inform consumers that particular types of products may be harmful. However, critics argue that the warnings may mislead consumers by suggesting that particular brands are more harmful than others. Cautionary notices have long been required in Brazil on labeling for medicines, alcoholic beverages, pesticides and tobacco products. However, the warnings begin with the phrase, “The Health Ministry warns…,” and do not contain the producer’s trademark. The Brazilian Attorney General’s Office has issued an opinion stating that the resolution is unconstitutional because the proposed warnings are not required by federal law. ANVISA has not modified the resolution in response to this opinion. Food producers must comply with the resolution within 180 days of the publication date, that is, by December 26, 2010. Companies that do not comply may be subjected to a fine, without prejudice to civil or criminal liability. Contributor: José Eduardo Pieri, BM&A – Barbosa, Mussnich & Aragão, Rio de Janeiro; Verifier: Valdir Rocha, Veirano Advogados, Rio de Janeiro Fonte:Valdir de Oliveira Rocha Filho