O conteúdo Cade acknowledges gun jumping in procedure terminated by agreement aparece primeiro em Grinberg Cordovil Advogados.

The first decision in this process, initiated by a complaint from Booking.com, is from 2018. In its complaint, Booking.com submitted to Senacon simulations made on Decolar.com’s website with price and availability surveys of hotels made with computers based in Brazil x Argentina. The simulation confirmed that the company offered the same reservations and accommodations, on the same dates, at different rates, depending on the country where the search was based (on average, values were up to 29% higher for Brazilian consumers).

In an unprecedented understanding, until then, the Department of Consumer Protection and Defense (DPDC), who had analyzed the case, considered that there had been discrimination against consumers on account of ethnicity and geographic location, which would constitute an abusive practice and an imbalance in the market and of consumption. This would be because they violated consumer freedom of choice in contracting. In view of this, a fine of R$ 7.5 million was imposed on Decolar.com.

The decision issued on 06/21/2022 reviewed an appeal filed by Decolar.com, reaffirming that the price differences had been based on the tax differences of each country. Senacon only partially accepted the appeal, reducing the fine to R$ 2.5 million. However, it highlighted that the infractions violated the consumer’s right to complete, free, and useful information for their full ability to exercise their freedom of choice.

O conteúdo Geopricing and geoblocking are considered a violation of consumer rights by Senacon aparece primeiro em Grinberg Cordovil Advogados.

The Decree focuses on exporting credits, particularly to countries and companies that need to offset emissions to meet carbon neutrality commitments. Among the innovations introduced by this legislation are the procedures for the preparation of Sectoral Plans for the Mitigation of Climate Change and the institution of the National System for the Reduction of Greenhouse Gas Emissions (Sinare). Moreover, the Decree provides new definitions, such as the definition of “carbon credit” and “methane credit.”

In relation to the Sectoral Plans for Mitigating Climate Change, the standard delegates the approval of gradual goals for the reduction of emissions and the removal of greenhouse gases to the Interministerial Committee on Climate Change and Green Growth, as foreseen in the recent Decree No. 10,845/2021. These Plans will aim at achieving climate neutrality as informed by the country in the Nationally Determined Contribution (NDC), submitted under the Paris Agreement. The goals given by the country in December 2020 are to reduce greenhouse gas emissions by 37% by 2025 and then by 43% by 2030. Monitoring of the Plans will be done through the presentation of a periodic inventory of greenhouse gases of sectoral agents.

Within 180 days from the publication of the Decree (extendable for an equal period), the sectors may present their proposals for the establishment of greenhouse gas emission reduction curves. It is important to remember that the sectors in question were previously defined in the Law that instituted the National Policy on Climate Change (PNMC – Law No. 12,187/2009), namely the electricity generation and distribution sectors; urban public transport and interstate modal transport systems of cargo and passengers; manufacturing industry and consumer durable goods; fine and basic chemical industries; pulp and paper industry; mining; construction industry; health services; and agriculture.

The recently approved standard considers that there may be different treatment for agents working in these sectors, including a different schedule for joining Sinare. Differential treatment may be established in each specific target plan, depending on the criteria, such as categories of companies and rural properties, enterprise revenue, emission levels already verified, characteristics of the economic sector, and location. A priori, it is not yet possible to know which enforcement mechanisms will be adopted to control the execution of the plans.

On the other hand, Sinare will have the main function of serving as a single center for recording emissions, removals, reductions, and offsetting greenhouse gases and trade acts, transfers, transactions, and the retirement of certified carbon reduction credits emissions. The regulation of its activities is still pending and should be done by a joint act of the Ministries of the Environment and Economy. The System should make it possible, in parallel, to record the carbon footprint of products, processes, and activities, carbon from native vegetation and carbon in the soil (which should include rural producers and acres of protected native forest), in addition to blue carbon, which is present in marine, coastal, river, and mangrove areas.

Finally, the definitions introduced by the new Decree are essential to guarantee the validity and standardization of transactions in this market. Accordingly, both “carbon credit” and “methane credit” are defined as “financial, environmental, and transferable assets” and represent the “reduction or removal of one ton” of carbon dioxide or methane, which has been recognized and issued as credit both in the voluntary market and in the regulated market. Stabilizing such concepts will allow greater legal certainty in relation to the incidence of other standards, such as those pertaining to taxes.

O conteúdo Federal Government creates the Regulated Brazilian Carbon Market aparece primeiro em Grinberg Cordovil Advogados.

Under the terms of the LGPD, Article 41, the DPO is the main communication channel between the controller, the data subjects, and ANPD. Therefore, the DPO is the agent responsible for accepting complaints and communications from data subjects and the Authority, and then taking the appropriate measures, in addition to the duty of guiding the entity’s employees and contractors, regarding the practices of the personal data protection. In other words, they are responsible for ensuring that an entity, whether public or private, is complying with the LGPD.

The article also foresees the possibility, for ANPD, to establish complementary rules on the definition and duties of the DPO, as well as cases of waiver regarding the obligation of a DPO’s indication. In light of this, the current consultation, together with technical studies developed by ANPD, will contribute to the elaboration of a Regulatory Impact Analysis (RIA) and of a draft bill about the DPO, which will also be submitted for open public consultation and hearings in the future.

There is currently a Guideline for Definitions of Data Controllers and Officers, published by ANPD in May 2021, which provides guidance (that is, without any normative force) on best practices regarding the indication of a DPO. Moreover, ANPD has already stipulated a first hypothesis for waiving this duty in the recent Resolution CD-ANPD 2/2022, which authorized agents with low processing rates not to name a DPO (see art. 11 of the Resolution).

However, several questions concerning the nomination and performance of the DPO are still pending. For example, is it necessary for a processing agent to hire an exclusive collaborator to perform the role of the DPO, or is it possible for the same person to perform multiple functions? Would that situation raise any conflict of interest? In other words, who cannot be nominated as the DPO? Is it possible to outsource all or part of the DPO duties? Is the DPO liable for damages to the processing agent? Could the waiver of the duty to name a DPO be extended to other cases? How can we ensure efficiency in the nomination and performance of the DPO in both the private and public sectors?

In view of those points, ANPD intends to discuss the following topics with a selected group of 20 specialists:[1]

• Characteristics and attributions of the DPO: criteria for individuals to be designated as data protection officers or excluded from having this function, considering their employment status and ideal position in the organizational structure of a company. This will include discussions about the possibility of functions overlapping, conflicts of interest, and what other activities could be performed by the DPO, in addition to his or her own duties, as described in the LGPD.
• Efficient ways of naming the DPO: considering demand for DPO’s activities will increase in the coming years due to the digital economy growth, the issues to be discussed here will aim to: (i) verify whether entities of different sizes and that handle different volumes would demand different attributions from the DPO; (ii) evaluate the possibility of indicating more than one DPO or a substitute for the same officer; (iii) discuss the need to name a DPO in Brazil in the case of handling agents with headquarters abroad; and (iv) consider the possibility of nominating a single DPO for different companies of the same economic group.
• Outsourcing and liability: in this session, experts will discuss the possibility of outsourcing the DPO role or his/her duties (partially or totally) and in what way this could be done. In addition, it will be discussed the possibility of regulating the hypotheses in which the DPO can be held liable for damages to the treatment agent, besides the legal consequences of the DPO not fulfilling his/her duties.
• The need to publicize the DPO’s personal data, and DPO’s nomination waiver hypotheses: in what terms should DPO’s information be released, in order to comply with the legal provisions without neglecting the principle of necessity; and whether the DPO’s nomination waiver foreseen for agents with low processing rates could be extended to other hypotheses.
• DPO in the public sector: finally, in this last session, experts will discuss the indication of the DPO within the Public Administration and if there should be differentiated duties.

Meetings with the selected applicants will take place on April 5th and 7th, 2022. More information about registration for interested parties is available at this link.

[1] The evaluation of the applicants will consider: their academic background, complementary education, and professional or academic experience in the area, while also observing the criteria of diversity of representation of the sectors, genders, and region of the country.

O conteúdo ANPD will select experts to discuss the regulation of the Data Protection Officer’s activities aparece primeiro em Grinberg Cordovil Advogados.

According to the Guide, the characterization of an abusive price increase – i.e. the unjustified increase in prices of products or services – is based on the following premises: (i) free prices are crucial for the functioning of the market; (ii) price increases may be justified, for example, by increases in market costs or changes in the balance between supply and demand; and (iii) free competition and the fight against violations of the economic order are fundamental in combating disguised and deliberate price speculation in markets with uncompetitive structures or momentary atypical disturbances that are being faced (as in the case of the Covid-19 pandemic). Based on these elements, public authorities should consider intervening only on an exceptional basis and when there are indications of deliberate and unjustifiable arbitrariness and distortions.

For authorities to act, the Guide proposes a script for action when abusive prices are suspected:

1. Identification/registering of the potentially abusive practice, at which time preliminary indications must be collected and analyzed for a decision on whether or not to act in the identified situation. Such identification would occur with the verification of price increases that extrapolate the context and effects of specific supply and demand shocks, in addition to consulting the main inflation indexes to deliberate on the existence of exceptional readjustments. The decision not to act directly (for example – not instituting a sanctioning administrative process) must be taken, if all the necessary elements are not available to conclude concerning the arbitrariness of the price increase or if the result of its action could have caused more negative effects than positive (such as shortages, greater market concentration, or even legal uncertainty).
2. Preliminary referrals for analysis by competent authorities. If there are indications of other conduct related to the abusive increase, the procedure must be forwarded to other authorities. An example would be if there is evidence of collusion, then CADE must be notified. If the alleged abuse involves a regulated market, there must be liaison with the specific regulatory authority. If a crime against the general economy is suspected, the procedure must be shared with the Public Ministry, etc.
3. Verification of the existence of exploitation of specific situations to increase prices, such as, the exploitation of emergencies and calamities for abusive increases. The Guide also provides specific recommendations for analyzing price increases in the service sector or in relation to basic food baskets and food products.
4. Applicable economic and legal analysis. At this stage, the analysis must be carried out on a case-by-case basis, based on technical and objective criteria for the observed price increase. In this sense, the Guide highlights that “as we know, the increase “per se” is not always a sufficient criterion for verifying the “abusiveness” of economic agents.” Thus, the guide recommends that the economic-legal analysis follow the following steps: (i) identify the product in which the abuse is to be verified; (ii) identify companies that compete in this market; (iii) identify the elements that are part of the production chain, including raw materials; (iv) request purchase and sale invoices with a reliable historical series, with a recommendation of at least 3 months (90 days); and (v) identify the existence of economic rationality in the price increase or if it is merely business opportunism (a situation in which abusiveness would remain configured).
5. Closure with the filing or application of applicable sanctions to the investigated agent.

The Guide highlights the following as competent agencies to deal with the issue (whether in a preventive or corrective way): the National Consumer Secretariat, who coordinates the National Consumer Protection System (Senacon), the Secretariat of Competition and Competitiveness Advocacy of the Ministry of Economy ( SEAE-SEPEC/ME), the Administrative Council for Economic Defense (Cade), the administrative authorities for consumer protection and defense, in states, Federal District, and cities (Procons), the Public Ministry, the Public Defender’s Office, and finally, the Regulatory Agencies in the case of sectoral markets. This means that the Guide starts with the comprehensive and expansive attention of public authorities and civil society in the inspection and monitoring of this practice.

The MJSP also reinforces that sanctioning procedures are not the only mechanisms available to consumer protection authorities for the fulfillment of their institutional missions and for the prevention, supervision, and correction of possible conduct. The following can and should be used as well – analyses, issuing guidelines, and even resorting to the Collective Consumption Agreement described in the CDC, art. 107 between civil consumer protection entities and suppliers.

O conteúdo Ministry of Justice and Public Safety issues guide on abusive price increase aparece primeiro em Grinberg Cordovil Advogados.

The regulation softens some LGPD obligations for the following agents:

• Microenterprises and small businesses: in accordance with the definitions of the Brazilian Civil Code and the National Statute of Microenterprises and Small Businesses;
• Startups: business or corporate organizations, beginning or recently in operation, whose performance is characterized by innovation applied to the business model or the products or services offered and that meet the requirements set out in the Legal Framework for Startups;[1]
• Private legal entities, including non-profits with a maximum revenue of BRL 4.8 million, as provided for in the National Statute of Microenterprises and Small Businesses.

For these agents, the registration of processing operations, as well as the communication of data breach, will be done in a simplified form, based on the model/procedure that will be made available by the ANPD itself. In addition, several communication deadlines before data subject and ANPD will be counted in an extended way or doubled.

Furthermore, APPs will not be required to appoint a DPO. However, a communication channel must be maintained with the data subject, and if a company choose to appoint a DPO, it will be considered as a policy of good practices and governance, being taken into account when applying any sanctions for non-compliance with the LGPD.

There are also definitions, concerning security criteria and good practices for APPs, which must adopt minimum measures to protect data from unauthorized access and accidental or illicit situations of destruction, loss, alteration, communication, or any form of inappropriate or illegal processing. These policies may consider implementation costs, as well as structure, scale, and volume of the agent’s operations, as simplification and limiting factors.

Important: the flexibilizations considered do not apply to agents that carry out processing defined as “high risk,” even if they fit the definitions of the regulation, which are: (i) large-scale processing or (ii) ones that may significantly affect the interests and fundamental rights of the holders. In both of these cases, these processing must be characterized by the following criteria: a) the use of emerging or innovative technology; b) the use of surveillance technology or the control of spaces open to the public; c) those who make decisions on the sole basis of automated processing of personal data; or d) the use of sensitive personal data or personal data related to children, adolescents, and the elderly.

It is important to highlight that there is no quantitative definition of what a large-scale processing would be. The regulation only defines a processing as that which covers a significant number of data subjects, considering the volume of data involved, the duration, the frequency, and the geographic extent of the processing. The processing of personal data that could significantly affect interests and fundamental rights will be characterized as those in which the processing activity may prevent rights being exercised or the use of a service, as well as causing material or moral damages to the data subject, such as discrimination, violation of physical integrity, the right to image and reputation, financial fraud, or identity theft, among others.

[1] According to Startups Legal Framework (Complementary Law No. 182/2021), individual entrepreneurs, individual limited liability companies, business companies, and cooperative and simple companies that meet the following criteria are eligible for inclusion in this modality: (i) gross revenue up to BRL 16 million in the previous calendar year or BRL 1.34 million multiplied by the number of months in the previous calendar year when the company has been active for less than 12 months; (ii) registration with a CNPJ for up to 10 years; and that (iii) meet one of the following requirements: a) declaration in its constitutive act or one amending the use of innovative business models for the generation of products or services or b) classification in the special Inova Simples regime.

O conteúdo ANPD approves regulation on the application of the LGPD for small agents aparece primeiro em Grinberg Cordovil Advogados.

Its new Agenda, prepared after listening to the society in 2021, encompasses regulatory projects, related to measuring instruments, pre-packaged goods, and legal metrological control operations.

The document makes it possible to estimate the periods, in which the projects listed will be under technical studies and regulatory impact assessments (RIA), as well as deadlines for issuing drafts and completing the regulation in some cases. Throughout the planned RIAs, there may be consultations and subsidization with the society and interested parties.

The disclosure of the Regulatory Agenda was given through Inmetro Ordinance No. 525 from December 30, 2021, which can be accessed here.

O conteúdo Brazilian National Institute of Metrology Standardization and Industrial Quality (INMETRO) publishes the Regulatory Agenda for the 2022-2023 period aparece primeiro em Grinberg Cordovil Advogados.

In one of its last sessions of 2021, the National Advertising Self-Regulation Council (Conar) dealt precisely with this issue, having published its decision last week, given the novelty and relevance of the subject.

The decision took place within the scope of Representation initiated ex officio by Conar due to a consumer complaint (Rep. No. 203/21), regarding a product search in an online catalog from the digital platform (in this case, it was a film from Globoplay’s catalog in a search engine). The dynamic advertisement you received in return for completing the survey informed you of the availability of the product, but you were not properly informed of the details of its availability.

Given this, the generated advertisement could violate article 23 (“the ads must be done in such a way as not to abuse the consumer’s trust, not to exploit their lack of experience or knowledge, and not to benefit from their credulity“) and article 27 (“the ad must contain a true presentation of the product offered”), among others, of the Conar Code of Ethics.

In its defense, the defendant clarified that the advertisement was formulated automatically by the search engine’s algorithms, a mechanism that several advertisers use. Despite being a very useful feature, the algorithm crosses keywords during the search and presents them as a personalized content result, which does not always generate precise information about the product. More details of the offer, however, can be accessed on the link recommended by the search engine.

In this case, Conar understood that the questioned advertisement did not necessarily contain inaccurate information and that it was up to the consumer to analyze the data of the offer when contracting the service. Therefore, the Council decided to file the Representation. In any form, the case was made public, and the vote of Rapporteur Ana Moisés was used to alert “the various advertising chains and Advertisers that it is mandatory to understand and keep up to date with the transformations, alterations, and improvements of the algorithms, so that they generate correct and quality advertising, which support consumer choice.”

Additionally, the information that Globoplay would be working (together with Google) to avoid this type of confusion through particular techniques, like, for example, inserting a keyword combinations block list that could cause a conflict of understanding for consumers, was considered positive.

The full decision is available on Conar’s website.

O conteúdo Conar discusses advertising based on algorithms and artificial intelligence aparece primeiro em Grinberg Cordovil Advogados.

The regulatory framework is quite relevant, and mainly, signals to market agents that the ANPD is functioning and organizing itself institutionally to exercise its inspection activities, which include: (i) monitoring; (ii) orientation; (iii) prevention, and (iv) repression.

Despite this, no guidelines have been established yet, regarding the dosimetry of sanctions and the calculation of the base value for the application of penalties. This point should be clarified later on in a specific rule published by the ANPD, subject to prior public consultation. In addition, the new regulations safeguard the ANPD’s Board of Directors’ power to issue an Ordinance to establish the necessary complementary instructions.

Thus, in general, the new resolution seeks to address the duties of the regulated agents, as well as to determine procedural provisions relating to subpoenas, deadlines, communication, and the awareness of administrative acts from the authority.

Furthermore, the regulations provide for the ANPD’s inspection powers, which must comply with a series of premises provided for in the regulations, may be carried out (i) ex officio; (ii) as a result of periodic inspection programs; (iii) in a coordinated manner with public agencies and entities; or (iv) in cooperation with data protection authorities of other countries.

In relation to the ANPD’s acting areas in exercising this authority, it states that:

• The activity of monitoring should gather relevant information and data to support decision making by the ANPD, in order to ensure regular functioning of the regulated environment. The agency’s General Inspection Coordination, whose competencies are defined in the ANPD’s Internal Regulations, will conduct the monitoring of treatment activities, based on a compliance assessment, to plan and subsidize the authority’s inspection activities. The monitoring also involves the production of an annual report, as well as a biannual map of priority issues to consolidate information on activities and guide the authority’s future actions.
• Guidance is focused on cost-effectiveness and the use of methods and tools to promote guidance, awareness, and education for data processors and subjects. Guidance measures include good practice guides, recommendations of technical standards, and document templates to be used by the processing agents, among other products.
• Prevention preferably consists of action based on the joint construction and dialogue of solutions and measures that aim to bring the processing agent back into full compliance or to avoid or remedy situations that may lead the personal data holders and other processing agents into situations of risk or damage. Note that the measures applied in the preventive context do not constitute a sanction to the regulated agent and may include the disclosure of information, warnings, the request for regularization or additional information, or even a compliance plan, which in the case of non-compliance, will lead to repressive action by the authority.
• Repressive activity is characterized by the coercive action of the ANPD, aimed at the interruption of situations of damage or risk, the return to full compliance, and the punishment of those responsible, by applying the sanctions provided for in Article 52 of the LGPD through the administrative sanctioning process. In conducting the proceedings, the ANPD shall comply with the principles of legality, purpose, motivation, reasonability proportionality, morality, full defense, adversary system, legal certainty, public interest, and efficiency, among others.

Regarding the administrative proceeding within the scope of the ANPD, the resolution establishes that the proceeding may be initiated ex officio, at the request of the Inspection Coordination, or as a result of a monitoring process. Additionally, the General Inspection Coordination may, through ex officio or upon request, make preliminary inquiries by means of a preparatory procedure, when the evidence of an infraction is not sufficient for the immediate opening of a sanctioning administrative proceeding. Once the instruction phase of the preparatory procedure is concluded, the General Inspection Coordination may close the procedure or initiate a sanctioning administrative procedure, without damage to the adoption of guidance and prevention measures, depending on the case.

After the infraction notice has been issued, the accused party may present its defense, add any evidence it deems necessary, or present closing arguments. After analyzing the records, the General Inspection Coordination will issue a final decision, which may be appealed to the ANPD Board of Directors.

In order to ensure the aforementioned action of the ANPD, the processing agents have the duty to provide information and documents, allow the authority access to facilities and equipment, be submitted to audits conducted or determined by the ANPD, and keep physical and digital documents during the periods determined legally or administratively. Furthermore, Law No. 9.874, which regulates the Administrative Proceeding, has subsidiary application.

Finally, it should be noted that the General Inspection Coordination Office may also receive Conduct Adjustment Declaration (“TAC”) requests, which have the effect of suspending any administrative proceedings in progress until the term is fully complied with, once the case has been dismissed.

The Resolution is already in effect and can be accessed here. The first monitoring period will begin in January 2002.

O conteúdo Brazilian Data Protection Authority Supervisory and Sanctioning Proceeding Receives Regulation by the Authority aparece primeiro em Grinberg Cordovil Advogados.

These measures aim to strengthen the fight against the practice of disguised price increases. This practice consists in the reduction of the weight or volume of the product by the supplier, without a proportional reduction of price, frequently without the consumer being aware of the changes.

The duty to inform the consumer regarding the characteristics, quality, quantity, composition, and other data of the product in a clear, precise, and ostensive manner in Portuguese is established in art. 31 of the Brazilian Consumer Defense Code (“CDC” – its acronym in Portuguese). As the practice of concealing or making the quantitative changes in products unclear was becoming frequent, the Ministry of Justice started to regulate the requirement of displaying information about changes in quantities of units or net weight in each package on product labels for a certain period of time, thus ensuring that the consumer is informed of the changes.

Before this point, the informative rules were given by the Ministry of Justice’s Ordinance No. 81/2002, which brought forth simpler obligations for suppliers, requiring the packaging to indicate the change for a period of only three months.  After the new ordinance goes into effect,  Ordinance No. 81/2002 will be revoked, within 180 days from its publication.

The new Ordinance, No. 392/2021, is more detailed concerning how the communication should be made and the places that the information should be available. It also extends the period in which the ad must be posted and details the extension of its application to products sold in e-commerce.

Below, we summarize the main obligations instituted by Ordinance No. 392/2021:

1. Quantitative change information must be displayed for a minimum of six months: the first and most important change brought forth by Ordinance No. 392/2021 was the extension of the period – from three to six months – for displaying information regarding quantitative changes on the packaging. According to the Ministry of Justice, the “objective of the change is to minimize the risk of the product being offered to the consumer in two versions simultaneously – one of them without the proper declaration.

2. Content of the quantitative alteration information to be included on the product label remains the same: as in the previous Ordinance, No. 392/2021, it determines that the supplier must state the quantitative alteration on the label of the product offered for sale:

i) the change in the quantity of the product;

ii) the quantity that was in the package before the change;

iii) the quantity after the change; and

iv) the quantity of decrease or increase in absolute and percentage terms.

3. Definition of the location where the information must be displayed on the packaging and specific rules for artwork: the new Ordinance makes the rules clearer on how the information must be displayed on the packaging:

i) Quantitative change information must be placed on a highly visible location of the modified packaging label, being clearly legible and prohibited from being concealed or difficult to see, such as in places where the packaging seals or twists.

ii) The characters must follow the following formatting requirements:

• Uppercase wording;
• bold;
• contrasting color from the background of the label;
• minimum height of 2mm, except for packages with a main panel area equal to or less than 100cm², whose minimum character height is then 1mm.

iii) In the case of not having enough space, the supplier may only inform the occurrence of the change in the product’s quantity. In this case, the complete information can appear on the secondary packaging, if there is any.

iv) Detailed information about the change must also be made available by other means to ensure that the consumer is properly informed. The Ordinance suggests information via SAC or QR codes that refer to the information made available virtually, as an example, among other means and technologies.

Failure to comply with the Ordinance subjects the supplier to the penalties provided in the CDC and Decree No. 2.181/1997, which regulate the application of these penalties, such as fines, seizure of products, manufacturing bans, revocation of the establishment’s license or activities, amongst others.

It is important to emphasize that the consumer defense agencies are aware of these changes. Recently, the Department of Consumer Protection and Defense of the National Consumer Secretariat (“DPDC/Senacon”, its acronym in Portuguese) has opened preliminary investigations to verify evidence of non-compliance with these regulations.

The fines for violations of consumer protection rules are high, and at least until 2013 (i.e.: in a little over a decade of the old ordinance), the Ministry of Justice had already applied approximately 94 fines for noncompliance, totaling about R$ 35 million in punishments to suppliers, at that time. The amount of the fine is estimated by the economic size of the company, the seriousness of the infraction, and the benefit, according to the CDC.

It is worth highlighting that the Superior Court of Justice also expressed itself on this subject in a Special Appeal in an important case in 2013,[1] recognizing the  violation as a hypothesis of objective liability of the supplier (lato sensu) for inaccurate product quantity and violation of the consumer’s right to this information. On another occasion, in 2015, it also confirmed the decision of DPDC, in which it understood that the information about the change in quantity available on the packaging of a product, although present, was not complete, accurate, and clear, during an administrative proceeding. According to the Superior Court of Justice, the way the information was provided was “extremely discreet” and did not meet the duty of ostentatious information.

The Ordinance will take effect on March 29, 2022 (180 days after publication).

[1] Superior Court of Justice. Special Appeal No. 1.364.915- MG (2013/0021637-0), Rel. Min. Humberto Martins, DJe 24/05/2013.

O conteúdo The Ministry of Justice published Ordinance No. 392/2021, presenting new rules on informing quantitative changes of packaged products, including for e-commerce aparece primeiro em Grinberg Cordovil Advogados.