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The Brazilian Supreme Court declares the constitutionality of a state law that prohibits certain food advertising for children and teenagers.

The plenary of the Supreme Court (STF) unanimously dismissed the Direct Unconstitutionality Action (“ADI”) 5631, proposed by the Brazilian Association of Radio and Television Broadcasters (ABERT) against Bahia’s State Law No. 13582 of 2016, that prohibited the advertising of foods and drinks low in nutrients and with a high content of sugar, saturated fats or sodium focused on children. The justices reached a consensus that the law aims to protect the health of children and adolescents by regulating what is presented to them in the form of advertising.

ABERT claimed that Bahia’s state law violated “freedom of commercial expression”, the right to information, free competition and free enterprise. In addition, the association argued that only the Union could legislate on commercial advertising.

The Reporter Justice Edson Fachin understood that the legislative power of the state of Bahia acted legitimately in editing this law. Fachin noted that the Union, states and municipalities are competent to legislate on health protection and child protection. Thus, the other federal entities are allowed to legislate in a complementary manner in order to fill in any regulatory flaws in the federal law.

In addition, the Justice recalled that the Brazilian constitution establishes the protection of the health of children and teenagers as an absolute priority. According to him, by limiting certain advertisements, Bahia’s state law promotes the protection of the health of children and adolescents. Finally, he alleged that, in view of the existing scientific studies, the protection of children’s health should supersede the freedom of commercial expression, reason why restrictions on advertisements for caloric foods to children can be made, provided that within reasonable parameters.

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