A criança consumidora como hipervulnerável: sua proteção no ordenamento jurídico brasileiro em relação a publicidade dirigida ao público infantil

Abstract

Advertising has unquestionable relevance for suppliers since it aims to influence purchasing decisions in today's society. However, it must respect consumers' rights, especially those who have a higher vulnerability, such as the child. As a person in the development stage, this child is more fragile to advertising stimuli and needs special care. Thus, considering the technological advances of the last few years and the increasingly naturalized advertising techniques, the present work investigates the real legal protection of children concerning the advertisements directed to them. In this way, it analyzes the relationship between advertising and the law, conceptualizes the consumer child, and identifies it as hypervulnerable, seeking to understand the legal nature of the advertisements addressed, the applicable legal treatment and its practical consequences. In this sense, the research has an exploratory character, uses the deductive method, and is developed through a qualitative approach. In this way, throughout the text, it appears that there are several rules on the subject, but they are very laconic and subjective, which causes interpretive divergences and generates countless discussions. One of these discussions refers to article 37, §2, of the Consumer Protection Code. The provision stipulates as abusive and, therefore, prohibited, advertising that "takes advantage of the child's lack of judgment and experience" but does not specify which discretion should be used for the analysis. In light of this, there is a discussion about the breadth of this prohibition, and there is no consensus on whether it is partial or total. Finally, there are other problems, such as the difficulty of inspection in the virtual space, which reveal a lack of effectiveness of the infant's legal protection and the need to prepare a new document on the topic.