Consumer Protection Laws: A US-Brazil Comparison

 It commences by emphasizing that consumer protection is a fundamental right and a principle of the economic order as outlined in the Brazilian Constitution. In the Brazilian Constitution's "fundamental rights and guarantees" chapter, Article 5 XXXII, the State is committed to ensuring consumer protection in accordance with the law. Additionally, Article 170, V, of the Constitution establishes that consumer protection is a fundamental principle of the economic order, alongside national sovereignty, private property, and other significant precepts. The constitutional dimension is instrumental in comprehending the correlation between the institutionalization of consumer protection and Brazilian democratization. Legislation that concretizes consumer protection is legitimate due to its constitutional status. The Brazilian Supreme Court dismissed allegations of the unconstitutionality of the consumer protection law, emphasizing that the Constitution permits legislative actions. The Brazilian Consumer Protection and Defence Code (CDC), Act No. 8078/1990, was proclaimed applicable to banking and financial services by the Supreme Court of Justice in a judgment (Ação Direta de Inconstitucionalidade n° 2591–1/DF. J, 07.06.2006). This judgment served as the most significant precedent.

This paper examines the impact of European consumer law on the evolution of Brazilian consumer protection regulations

The primary federal law on the subject is the Brazilian Consumer Protection and Defence Code (CDC), which was authorized by Act No. 8078/1990. This paper provides a comprehensive overview of the statute. The primary goal is to illustrate the law's exhaustive and extensive scope, underscoring its ability to regulate all facets of the consumer relationship with a consistent outlook on the future, as a result of its numerous principles and guidelines. It is feasible to characterize the CDC as a hybrid of the first and second iterations of consumer law. The CDC establishes general regulations that are applicable to a wide range of business operations. It also includes the standard first-generation regulations, including the rights to safety, information, choice, and representation, as well as the regulation of discriminatory terms and practices, product liability regulations, and the prohibition of misleading advertising. Simultaneously, the CDC incorporates elements of second-generation consumer law, as its regulations pertain to sectors including banking, energy, transportation, telecommunications, and financial services.

Lastly, the paper emphasizes the process of updating the CDC through Law No. 14 181/2021

which was enacted in July 2021 and introduced new and significant specific consumer protection standards to prevent and remediate over-indebtedness. The Senate has approved a bill regarding electronic commerce, which is currently being considered by the Chamber of Deputies. This document also includes a mention of the bill due to its potential for future approval. Several jurisprudential decisions have applied the rules of the CDC to electronic transactions between consumers and suppliers, in addition to a presidential decree that stipulates significant rules on e–commerce. Consequently, the third generation of consumer law is imminent, particularly in the realm of e-commerce.The CDC's substantial influence on the evolution of legal doctrine regarding consumer law is immeasurable. Specific courses have been implemented by the majority of universities in their law institutions for both undergraduate and graduate students. This has subsequently prompted the production of articles and novels. The arguments presented herein are substantiated by a wide range of doctrinal perspectives, as evidenced by the bibliography and textual references.

According to 2019 data, 6.6% of the population is illiterate, a figure that rises among the elderly. In 2019, 10.2% of the resident population in Brazil resided in residences that were supplied less than daily, despite the fact that the general water network was the primary source of water. At that time, 15.3% of the population resided in households that did not have access to the general network as their primary source of supply. Additionally, 3.4% of this population did not have access to piped water in their residence (BRAZIL, Instituto Brasileiro de Geografia e Estatística (IBGE), Indicadores Sociais de Moradia no Contexto da Pré–Pandemia de COVID–19, 2019).One The nominal monthly household income per capita of the population in 2020 varied between R$ 676.00 (State of Maranhão) and R$ 2475.00 (Distrito Federal) depending on the region (the amount is given in Brazilian currency, the real) (BRAZIL, Instituto Brasileiro de Geografia e Estatística (IBGE), Rendimento nominal mensal domiciliar per capita da população).Two Brazil is a Presidentialist Federative Republic, consisting of the Union, states, municipalities, and a single Federal District, which is home to Brasília, the capital of both the state and federal governments. In order to exercise authority, distinct and autonomous entities are established. The people elect the chief of state for a four-year term. The president of the republic assumes the roles of both chief of state and head of government. The Brazilian political system is multi-party, which means that it permits the legal establishment of multiple political parties. Political autonomy is granted to the states (PNUD. Sobre o Brasil).

Brazilian law is amenable to the influence of other legal systems

The authors of the draft bill of the Brazilian Consumer Protection and Defence Code (CDC) of the 1990s acknowledge the significant influence of comparative law, particularly the French "Projet de Code de la Consommation" (commission chaired by Professor Jean Callais–Auloy), as well as the laws of Spain (26/1984), Portugal (29/81 and 446/85), Mexico (1976), Quebec (1979), and Germany (1976), despite their assertion that "the need for caution in importing legal models from developed countries into less developed ones" (GRINOVER et al., 2017). In addition to input from the United States, two EU directives (84/450 on misleading advertising and 85/374 on liability for defective products) were directly employed. The CPS was also indirectly influenced by three additional EU Directives (Directive 85/577/EEC on contracts negotiated away from business premises, Directive 87/102/EEC on consumer credit, and Directive 89/552/EEC on television broadcasting) through the report of Jean Callais–Auloy. The influence of EU models is confirmed in the Brazilian Senate report on the current reform of the CDC (Senate Bill 281/2012, or Chamber of Deputies, is now Bill 3514/2015 on national and international e-commerce, which is still under discussion in Congress, and Senate Bill 283/2012, or Chamber of Deputies, was Bill 3515/2015 on consumer credit and over-indebtedness, which was promulgated as Act No. 14 181/2021). We will examine these influences, as well as the influence of EU consumer law on the MERCOSUR norms on conflicts of law.


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