The Ministry of Justice published Ordinance No. 392/2021 at the end of September. This ordinance provides for the obligation of informing consumers when there is a quantitative change in packaged products offered for sale (i.e.: when there is an increase or decrease in units or net weight of the product, yet within the same package). Additionally, it establishes rules on how this information should be presented, including for products available in e-commerce.
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.
