1. INTRODUCTION 

The present study aims to analyze, from the perspective of the Brazilian legal system, Consumer Law and its Constitutional Foundation characteristics. Thus, starting from the fundamental idea of a Right protected by the Brazilian Constitution, it is clear that this is a substantial corollary aimed at affirmative consumer protection, as provided for in articles 5, item XXXII and 170, item V of the Federal Constitution, concluded by article 48 of the ADCT.

Given the importance and relevance of the topic, which is even more justified in moments of global crisis such as the one currently experienced by the entire world population, situations that, unfortunately, expose a series of arbitrariness and inconsistencies against the least favored portions of the population (in any aspect), mainly the consumer class, we sought to organize the study into three parts, which will help in understanding and teaching the topic.

In effect, the aim is to weigh up constitutional consumer protection based on its threefold function, which derives from the Federal Constitution itself, and can be considered as follows: a) promoting consumer protection, in the list of fundamental rights and guarantees (Art. 5, XXXII, of the FC); b) ensuring consumer protection as a general principle of economic activity (Art. 170, V, of the FC); and, finally, c) systematizing this special protection through codification (Art. 48 of the ADCT).

This study is based on bibliographical and jurisprudential research, with emphasis on constitutional guiding principles, consumer relations (CDC) and the collective procedure in the protection of consumer rights. In addition, the research approach is qualitative, and the data collected is analyzed using the inductive, hypothetical-deductive, and dialectical methods.

The research is divided into ten chapters, including the introduction, eight development chapters, and the conclusion.

The first development chapter presents an analysis of the evolution of Consumer Law and the protective constitutional provision, followed, in a second moment, by an approach to consumer protection as a fundamental right and the moral view regarding its importance for maintaining the economic order.

In the third and fourth development chapters, we seek to demonstrate that, over the years and, consequently, with the improvement of consumer legislation, constitutional protective norms have become more effective and appropriate through normative densification.

Following on in a peremptory manner, the fifth chapter deals with the Consumer Defense Code itself, with a panoramic view of consumer protection in Brazilian law. The final two development chapters deal with concrete issues and the current relevance of the topic to everyday consumer situations arising from technological innovations and the emergence of new means and forms of relationship.

2. CONSUMER LAW AND ITS CONSTITUTIONAL PROTECTION 

Since the birth of the Federal Constitution of 88, the constituent legislator has highlighted the importance of consumer rights by raising them to the level of fundamental constitutional rights. Thus, explicitly, it inserted the State’s obligation to promote consumer protection in Title II of FC-88 (Fundamental Rights and Guarantees).

In this way, the inclusion of consumer protection in the Constitution represents the harmonization of the State’s functions while it is responsible for intervening in situations of inequality and social imbalance when it is not possible to resolve them satisfactorily through exclusively political or economic mechanisms.

On the other hand, as a fundamental law, the Federal Constitution is endowed with basic provisions for the organization of the State, as well as fundamental rights and guarantees, assuming hierarchical superiority status to other types of legal norms and, therefore, serving as the fundamental substrate of validity for any and all rules aimed at consumer protection.

In this sense, Cláudia Lima Marques (2021, p. 27) states that “the Federal Constitution of 88 is the origin of the codification of consumer rights in Brazil and the institutional guarantee of the existence and effectiveness of Consumer Law”.

As a direct and pragmatic consequence, this provision allows the recognition of the consumer as a new subject of rights, whether individually or collectively, and the assumption of commitments by the State to guarantee their protection, ensuring their ownership of fundamental constitutional rights (article 5 °, XXXII, of the CF), as well as special codified legislation (article 48 of the ADCT) and, also, the validation of consumer protection as a principle of the Economic Order (article 170, V, of the CF).

Another important point brought up by the original constituent legislator was the possibility (forecast) of drafting a Consumer Protection Code, according to article 48 of the ADCT, within 120 days of the promulgation of the Federal Constitution – a fact that, in Brazilian lands, occurred 2 years later, with the publication of the Consumer Protection Code, providing for consumer protection and other measures (Law No. 8.078/1990).

According to Bruno Miragem (2019, p.42):

Article 5, item XXXII, when using the phrase “in the form of the law”, inserted a specific determination for the ordinary legislator to detail constitutional protection, giving him the possibility of drafting specific protection standards, to improve protection. provided for in the Federal Constitution.

Thus, it is clear that consumer law defines, in short, a set of rules designed to comply with this triple constitutional requirement: promoting consumer protection (Art. 5, XXXII, of the CF); ensuring consumer protection as a general principle of economic activity (Art. 170, V, of the CF); and, finally, organize special protection through codification (Art. 48 of the ADCT).

Notwithstanding this, there are also the provisions of Article 129, item III, of the Federal Constitution, which established, as one of the institutional functions of the Public Ministry, that of promoting public civil action for the protection of diffuse and collective interests, finding legal support in the Article 81 of the Consumer Protection Code, an important legal evolutionary milestone on the meta-individual protection of consumer rights and interests.

3. CONSUMER PROTECTION AS A FUNDAMENTAL RIGHT

According to article 5, item XXXII, of the 1988 Federal Constitution, the State shall promote Consumer Protection. It is, therefore, a fundamental right that obliges the state to adopt certain positive measures through active action, to protect consumers and, consequently, give greater balance to consumer relations.

According to Cláudia Lima Marques (2021, p. 26), this assertion can be understood as follows:

To affirmatively ensure that the State-Judiciary, the State-Executive, and the State-Legislative positively defend and protect the interests of these consumers, in the right to encourage deliberately positive actions to ensure the integrity of the exercise of fundamental rights.

In the same vein, it is clear that this protection is a duty of the state, while the guarantee of fundamental rights requires the state to leave its traditional position of the adversary to occupy the position of guarantor of these rights, and it is up to the government not only to act to prohibit excesses but above all to avoid omission.

Turning to the exclusive core of consumer relations law, consumer protection finds its foundation in the parameter of intrinsic inequality between the subjects involved, which is not small. The great disparity between the entities that make up the consumer relationship is evident, leading, as a consequence, to the search for a greater balance through the related normative provisions, thus recognizing such rights as fundamental in favor of consumers in order, on the other hand, to equalize and prevent the interests of the stronger entities from prevailing.

As a concept of the above, the need arises to achieve the criteria of fairness through laws that can rebalance these viscerally unequal relationships, in other words, enforcing the maxim of “treating unequal people unequally to the extent of their inequalities”.

(…) Inequality, in casu, resides in the supplier’s favored position relating to the consumer, mainly due to an assumed more significant economic or technical power, which will necessarily correspond to a position of fragility and exposure of the consumer, what is conventionally called vulnerability of this relating to that.

Thus, there is no doubt that consumer protection as a fundamental right is based on the intrinsic inequality of relations between consumers and suppliers. Undisputed fact. Thus, the state’s duty to intervene in relationships to encourage the harmonization of conflicting interests emerges as a remedy, using the principle of equality in its broadest sense, intending to preserve consumers, who are vulnerable and hyposufficient in the conception of the law.

4. CONSUMER PROTECTION AND THE ECONOMIC ORDER

The original legislator then included “consumer protection” in the list of general principles of economic activity, giving it the same dimension as the principles of national sovereignty, free competition, and private property, among others.

According to article 170, caput, of the 1988 FC, the economic order has the following objectives I support, simultaneously, the valorization of human work and free initiative, to ensure a dignified existence for everyone, according to the dictates of social justice, and must observe the principles indicated in the sections of the aforementioned article 170.

According to Manoel Jorge e Silva Neto (2017, p. 675): “the ‘economic order’ consists of a normative plexus, of a constitutional nature, in which the option for an economic model and how State intervention in the economic domain should operate are established”.

In effect, this conceptualization shows that the economic order is designed to guarantee a dignified existence for all, while obviously respecting the principle of private property. In this context, it is clear that the Federal Constitution of 1988 was substantially concerned with the principle of the dignity of the human person, with a primordial discernment in the balance of forces: on the one hand, the vision of a capitalist “market economy” was evident, and on the other hand, it sought to safeguard consumer protection by elevating their rights to the constitutional heights.

In effect, the concept applicable to economic freedom cannot be absolute, under penalty of undermining the purpose of the economic order itself and the essential role of consumer protection, which is aimed at guaranteeing the dignity of the human person.

5. THE NORMATIVE DENSIFICATION OF CONSTITUTIONAL PROTECTION

As a consequence of the constitutional principle of consumer protection and defense, provided for in Article 5, item XXXII, of the 1988 Federal Constitution, it is the State’s responsibility to promote the effective protection of consumers’ rights and interests, making use of fundamental rights.

As a result, the Consumer Protection Code solidified what was established by CF/88, while, in Chapter III, of Title I, it listed what would be the basic consumer rights, which, in turn, are covered in the category of basics, as, in addition to serving as a foundation for legal protection, they act as the cornerstone of support for the legislative framework applicable to consumer relations.

According to Leonardo de Medeiros Garcia (2011, p. 63), the idea that the instrumentalization of this entire complex system that involves consumer relations will take place through what would be the basic rights of the consumer is inseparable: “(…) when listing consumer rights, the legislator made a point of highlighting that they are basic rights, that is, those that will serve as a basis for guiding and instrumentalizing consumer relations”.

Therefore, the legal provision contained in Article 6 of the CDC, which sets out the basic rights, highlights the focus on protecting consumers precisely because of their natural vulnerability in consumer relations. Furthermore, as already mentioned, the inequality between the subjects of this polarized relationship plays an equally prominent role, leading the state, as it should, to interfere and dispose of these rights to balance antagonistic interests, inherent to the economic model and the market.

Finally, it is no less important to point out that the list of basic rights presented in Article 6 of the CDC is merely an example. This is due to a logic that is necessary and applicable to the context: violations of consumer law principles not considered in the aforementioned legal provision will find their support and normative foundation, thus guaranteeing broad legal protection, starting from the constitutional consumer protection rules contained in the 1988 Federal Constitution.

6. THE CDC AND AN OVERVIEW ON CONSUMER PROTECTION IN THE BRAZILIAN LEGISLATION

Before going into the specific rights of consumers, it is important to understand the origins and consequent evolution of consumer law, which today is certainly considered a specific branch of law.

In this context, Consumer Law, as a set of rules and principles, primarily aims to protect consumers from suppliers, in order to balance this naturally disparate and polarized relationship.

Despite its recent origins as a branch of Law, globally, consumer protection has its origins in the emergence of contracts, undergoing substantial changes with the Revolutions of the 18th Century (and the influence on Contractual Theory), gaining more body and shape with the Industrial Revolution and the emergence of the “Mass Society” to, finally, reach other formats that are more polished and better prepared to regulate social life, such as Adhesion Contracts which, in short, act as regulatory instruments for this Mass Society.

Thus, taking into account these relationships and the need for the state to intervene in relations between suppliers and consumers, the “consumer movement” has emerged in various corners of the world, so that the social function of private law is to effectively protect people from the provocations of a mass, globalized and computerized society:

Consumer protection, to be conferred through the standardization of consumer rights, has become a permanent need for all developed and developing nations, urging the adoption of preventive, coercive, and punitive measures, aiming to ensure consumer protection of life, health, safety, freedom of choice and equal conditions in contracts. (DONATO, 1993, p. 18-19)

According to Newton de Lucca (2008, p. 48), although present in Roman law, the need for consumer protection, in the terms sought today, is something that, historically, can be considered current:

“[…] throughout the ages, there have always been numerous manifestations aimed at protecting consumers, ever since Roman law. But it was something isolated, fragmented, and anodyne, with no relation to the reality of the economic power of the producing agents, as effectively happened from the 60s onwards. These manifestations are often remembered, yes, but merely out of historical curiosity, and not because they can serve as a basis for interpreting the current phenomenon of consumerism.”

In fact, in the middle of the 19th century, the “consumer movement” began to take its first steps in the United States, resulting in the Supreme Court’s decision in Thomas vs. Winchester in 1852, based on the protective principles of consumer law.

In this sense, the United States is a forerunner in the fight for consumer rights, with representative manifestations throughout the 19th century, with the major milestone being the creation of the Shermann Act, the so-called American antitrust law of 1890, which fully established the idea of consumer protection in the American legal system. At the end of the 19th century, the first organization formed by lawyers in New York aimed at improving working conditions for commercial employees, called the “New York Consumers League” founded in 1891, to provide better relationships with customers in commercial establishments, which later gave rise to the “National Consumers League” in 1899.

Between the 1930s and 1940s, the consumerist movement began to worry about issues involving information, quality, and safety of products and services (Serrano, 2003), with emphasis on the creation of the “Consumers Union” organization in 1936. which, in turn, initiated certain activities aimed at comparing products and services, raising awareness among consumers through information so that they could exercise their purchasing power, choosing better quality products.

However, it should not be forgotten that it was from the 1960s onwards that the consumer movement took hold, based on social and cultural awareness of the need to defend those who were naturally on the weaker side of the consumer relationship.

In 1962, in a speech before the North American National Congress, then-President John Kennedy highlighted the need for governments to recognize basic consumer rights and implement state policies capable of guaranteeing them, launching a new challenge:

To consider that ‘we are all consumers’, at some point in our lives we have this status, this social and economic role, these rights or legitimate interests, which are individual, but are also the same in the identifiable group (collective) or not (diffuse), which occupies that consumer position (MARQUES, 2021, p.24).

In effect, the first concrete manifestations aimed at establishing real guidelines emerged, culminating in the institution by the North American Congress of four fundamental rights: security; information; choice, and, finally, the right to be heard.

The consequence of the speech was huge, leading the United Nations (UN) itself to establish March 15th as “International Consumer Day” and, mainly, to establish guidelines for this legislation and consolidate the idea that This is a human right of a new generation (or dimension), a social and economic right, a right to material equality for the weakest.

At the same time as the US, Europe has seen the trend towards consumer protection spread, especially since the founding of a non-governmental consumer protection organization around the world, the IOCU (International Organization of Consumers Unions).

After issuing countless scattered standards, the UN (United Nations), after more than two decades, approved, in 1985, Resolution No. 39/248, which established as general principles the need for governments to develop, strengthen, or maintain an energetic policy for consumer protection, establishing guidelines that address physical security, the promotion and protection of consumers’ economic interests, precepts to guarantee the safety and quality of products and services, among other measures aimed at effective consumer protection.

Among the provisions set out in Resolution 39/248, the UN defined a number of premises for consumer protection, complementing those proposed by the United States with four more rights, namely: redress; consumer education; a healthy environment and, ultimately, the right to access goods and services.

In Brazil, there has been a gradual maturing of the fight for citizens’ rights. In the 1960s, the time of the “Brazilian economic miracle”, there was little discussion of issues pertaining to consumer rights, with the highlight being the creation of PROCON by the São Paulo State Government in 1976, the first public consumer protection body.

In the 1980s, consumer associations and civil protection and defense organizations began to emerge. In this context, it was clear that, despite the existence of laws – which were still incipient, but which minimally guaranteed these rights – a large portion of the population lacked information and their claims to both the government and companies were unrepresentative.

In 1985, the then President of the Republic, José Sarney, created the CNDC – National Council for Consumer Protection through Decree No. 91.469/1985, which was responsible, among other things, for drawing up the Project for the National Consumer Protection Policy. And, in this historical context, the National Constituent Assembly, installed in February 1987, ended up embracing this international concern, including consumer rights among the fundamental rights and guarantees, establishing in article 5, item XXXII, that “the State shall promote, according to the law, consumer protection.”

Furthermore, as discussed previously, it gave consumer protection the status of a principle of the economic order (Art. 170, item V, CF) alongside the principles of national sovereignty (item I), private property (item II), social function of property (section III), free competition (section IV), defense of the environment (section VI), reduction of regional and social inequalities (section VII), search for full employment (section VIII) and, finally, favored treatment for small businesses (item IX).

It should also be noted that in the same year of 1987, IDEC – Brazilian Institute of Consumer Protection was created, a non-profit association unrelated to any company, government or political party with the mission of “promoting education, awareness, defense of consumer rights and ethics in consumer relations, with total political, and economic independence”.

Likewise, consumer protection, in addition to being elevated with “status” to the highlands of economic principle, is also considered:

(…) the goal pursued by the State itself, in achieving its common good, given that the existence of the State itself can only be conceived to the extent that minimum and indispensable conditions are established for every human being to be fully realized (FILOMENO, 2014, p. 1-2).

Without prejudice, these specific constitutional provisions on consumer protection must also be informed and interpreted based on the fundamental principle of the dignity of the human person, as the foundation of the Democratic State of Law. In this sense, it is worth noting that the constituent legislator intended to make consumer protection viable in a very strong way:

(…) the State, through all its bodies and functions, must start from the assumption that the consumer is the vulnerable part of consumer relations, therefore demanding protective intervention, both in terms of guaranteeing a system of legal protection, as well as creating bodies that prevent or repress injuries to consumers (RAGAZZI, 2010, p.27).

Which, in effect means that:

Today, private law is directly influenced by the Constitution, by the new public order imposed by it, and many private relationships, previously left to the discretion of the parties, obtain a new legal relevance and consequent state control, which has already been called ‘publicization of private law (MARQUES, 2021, p. 29)

To implement the firstly appointed constitutional norm (Article 5, item XXXII), with programmatic content and limited effectiveness, the constituent legislator tried to establish, in the Transitional Constitutional Provisions Act, a period of six months for the edition of the Defense Code (CDC).

However, it was not until almost two years after the promulgation of the Federal Constitution of 1988 that Law No. 8.078/1990 was passed, regulating, at an infra-constitutional level, the fundamental right of “consumer protection”.

In 1990, the Consumer Defense Code was finally enacted with broad constitutional support. Serving as a milestone in the awareness of all citizens, it effectively promoted the education of Brazilians about their rights and duties in consumer relations. Since it came into effect, it has substantially supported the efforts made over the years by civil and governmental entities dedicated to such a protective purpose, so that, nowadays, the consumer perceives himself as protected and, mainly, can avail himself of his rights both in terms of individual claims and, mainly, through collective protection.

7. THE CONSUMER PROTECTION CODE

The Brazilian Consumer Protection Code is enshrined in Law No. 8.078/90 and provides for consumer protection and other matters on the subject, including addressing previously unregulated issues on diffuse and collective rights, both in material and procedural terms. Under the terms of Article 1, it establishes protection rules of public order and social interest:

Art. 1 This code establishes rules for consumer protection and defense, of public order and social interest, under the terms of arts. 5, item XXXII, 170, item V, of the Federal Constitution and Art. 48 of its Transitional Provisions.

Based on the premise of protecting the consumer, who is the vulnerable party in the consumer relationship, the CDC has established cogent rules or rules of public order, which cannot be invalidated or compromised by the will of the parties, and this is essential if the protection sought is to be effective and meet the needs of consumers.

In continuity with the Consumer Protection Code, the legislator’s concern to conceptualize the figure of the consumer according to the provisions of Article 2 is evident. Thus, in the light of the codification in question, a consumer is considered to be “any natural or legal person who acquires or uses a product or service as the final recipient.” It is also up to the paragraph of the aforementioned article to bring up the concept involving the consumer format of equivalence.

Thus, according to Art. 2 of the CDC, a consumer is any natural or legal person who acquires or uses a product or service as a final recipient. The sole paragraph of the same article equates consumers with a group of people, even if they are indeterminable, who act by intervening in consumer relations.

In the same way, article 17 of the CDC sets out a relevant concept of liability for the fact of the product and service, valuing the figure of the consumer, while for the purposes of the Code, any victims of the event are equated with all consumers.

Therefore, the figure of the consumer by equation aims to safeguard those who were also victims of the event, but who are not directly part of the consumer relationship, even though they bear the damage resulting from the failure to provide the service or product contracted by third parties.

On the other hand, the elements and principles that underpin the Brazilian Consumer Protection Code must be rigorously analyzed, as they allow for a global understanding of the real and effective protection afforded to consumers. Without such an approach, it becomes difficult to understand the motives and reasons, as well as the legislator’s objectives in constructing this extremely important instrument for protecting consumer relations.

This highlights constitutional principles such as the dignity of the human person and the economic order in the context of consumer relations, which are essential for the fair and equitable development of consumer affinities.

Firstly, the principle of the dignity of the human person in the context of Consumer Law is enshrined in section III of Art. 1 of the Federal Constitution, which is one of the basic principles, as laid down by the constituent legislator.

Such a principle speaks for itself. Human dignity has a prominent place in the legal and social context, as it is inherent to the person. Therefore, the principle of the dignity of the human person is closely related to the caput of Art. 4 of the Consumer Protection Code. Namely:

Art. 4 The National Consumer Relations Policy aims to meet the needs of consumers, respect their dignity, health, and safety, protect their economic interests, improve their quality of life, and ensure transparent and harmonious consumer relations.

In effect, both the constitutional text and the CDC start from the premise that the consumer is the vulnerable link in the consumer relationship to reach a perspective of balance in contractual relationships of this nature through effective consumer protection and protection.

Likewise, with the purpose of consumer protection, the State surrounded itself with other protection mechanisms, such as regulatory agencies (ANATEL, ANEEL, ANS, ANVISA, ANAC, etc.) to inspect, control, and regulate services and products that make up the consumer market.

Finally, in addition to regulatory agencies, the Consumer Protection and Defense Program was created to serve as guidance to consumers on aspects related to contractual relationships, in addition to seeking mediation of possible conflicts arising from such relationships and serving as tax, imbued to avoid possible abusive practices harmful to the most vulnerable entities.

Also, of great relevance as a whole, consumer protection is embodied as a principle of the economic order according to the provisions of the Federal Constitution (Art. 170).

The principle of economic order is based on two extraordinary pillars, which are the valuation of work and free initiative, this principle is presented in Art. 170 of the Federal Constitution. Namely:

Art. 170. The economic order, based on valuing human work and free enterprise, aims to ensure everyone a dignified existence, according to the dictates of social justice, subject to the following principles. (…) V – Consumer protection (…)

In this context, although there are multiple doctrinal discussions about the economic model adopted in Brazil, it is evident, above all, that a capitalist style of society was chosen without, however, failing to consider the search for the realization of social rights by the constituent legislator, bringing them closer to the necessary considerations, to the State standard regulated in Social Welfare.

And it couldn’t be any different, since the article in question aims to protect free enterprise and the right to private property (as provided for in the Universal Declaration of Human Rights – UN 1948, among others), but it also highlights the concern for protection based on valuing work, consumer protection, the search for a balanced environment, etc.

Therefore, the Federal Constitution of 1988, in preaching the need for a liberal state through free trade, did not forget to think about the social side, closely correlated with the well-being of all inhabitants and, especially, with the principle of the dignity of the human person, previously discussed.

In other words: the principle of the economic order and the foundations that underpin our Democratic State of Law are based on valuing work and free enterprise, according to Article 1, IV of the Federal Constitution.

In alignment with the above, Article 170, item V of the Federal Constitution states that all citizens should be guaranteed a dignified life and, to this end, this must be taken into account to protect consumers, given their inexorable condition of vulnerability.

Therefore, given the reality exposed by the adopted free trade model, contractual relationships become complex and polarized where the consumer may, given their vulnerable condition, be harmed by the strongest entity in that relationship, thus falling to the CDC and other provisions regulations affect the principle of consumer protection, precisely because it is the weakest link in the consumer relationship.

As a consequence of seeking to respect the dignity, health, and safety of consumers as well as the protection of their economic interests, the CDC has brought, over its 30 years, numerous achievements, with the main benefit being the balance between parties in consumer relations.

And all of this has only become possible through the harmonious application of the legal system, especially the constitutional principles previously discussed in this paper, in close correlation with other infra-constitutional principles, among which the following stand out, according to Miranda (2017): the dignity of the human person (Art. 1, III, FC); protection (arts. 6, CDC and 5, XXXII of the FC); trust; precaution; transparency; vulnerability; information; facilitation of defense; review of contractual clauses; conservation of contracts; solidarity; equality and, above all, the principle of objective good faith and balance in consumer relations, whereby the parties must always proceed with probity, loyalty, solidarity and cooperation in their relationships.

With regard to the principle of good faith, see Article 4, III of the Consumer Defense Code. It is a rule of conduct, a permanent duty between the parties in their relationship. In light of this, article 51, IV of the CDC states that contractual clauses relating to the supply of products and services that establish obligations considered to be unfair, abusive and that place the consumer at an unreasonable disadvantage, i.e. incompatible with good faith or fairness, are null and void.

On the other hand, and no less important than the highlighted infra-constitutional principles, basic consumer rights emerge from the approach to the principles that govern the consumer relationship, based on Art. 6th of the Consumer Protection Code, of which the following stand out: Right to protection of life, health, and safety; Right to freedom of choice and equality in hiring; Right to Information; Right to protection against misleading and abusive advertising; Right to contractual protection; Right to prevention and repair of damages; Right of access to defense bodies; Right to reverse the burden of proof; Right to adequate and efficient provision of public services.

Such principles and, consequently, rights, act in concretizing concepts and consolidating normative values ​​aimed at defending the interests of consumers, and vulnerable entities in the context, being beneficial in adjusting the natural imbalance resulting from the consumer relationship while expressing the real intention of the standard and serving as interpretative support in case of divergence or doubt in the interpretation of the law.

8. GENERAL OVERVIEW IN BRAZIL

Over the 30 years since the Consumer Protection and Defense Code (Federal Law No. 8.078 of 1990 – CDC) came into force, many advances and challenges have been faced by consumer society, especially with the inclusion of consumers in the current era of the digital economy.

Although our CDC was built in a historical context where many of today’s digital technologies and innovations did not exist, its principles, guarantees, and rights are still contemporary, fully appropriate, and considered within this new online panorama, since they deal with a principle-based standard and are based on the assumption of the need to adapt to the constant changes in the consumer market.

Among the changes that have occurred over these 30 years of the CDC, according to Bruno Miragem (2019, p. 214), the right to information is the one that: “will have the greatest practical repercussions in everyday consumer relations”, as the applicability of such a right has gained more strength over the years and, above all, has required greater commitment from the legislator and law enforcers, and is even the subject of Federal Decree No. 7.962 of 2013 (E-commerce Law), which regulates the Consumer Defense Code to provide for the purchase of products and services in e-commerce.

The aforementioned E-commerce Law allowed consumers and suppliers (stores that operate through electronic commerce) to have more security in their commercial relationships by providing clearer and more objective information about products and services after contracting online, in addition to establishing rules and means of service that aim to facilitate access to consumers whenever necessary. 

With the emergence of new paradigms, the consumer market and the application of the normative provisions of the CDC are constantly changing, especially with the emergence of social networks, which have made it possible for consumers to expose, with substantial representation, the problems arising from the contractual relationships to which they are bound.The new possibilities for buying products online, services, or digital content through cell phone apps, as well as new ways of entering into a contractual relationship in the so-called “sharing economy”.

Due to such circumstances arising from the emergence of new technologies and, consequently, new problems affecting consumer relations, the national legislator, aiming to monitor such evolution, edited the Marco Civil da Internet (Federal Law No. 12.965, of 2014), which establishes principles, guarantees, rights, and duties for the use of the internet in Brazil and the General Personal Data Protection Law (Federal Law No. 13.709, of 2018).

A brief digression on the subject is in order: the legislator’s concern to keep up with social advances resulting from new technologies is pressing and, with the proper interpretative permission, is to be commended, because without this concern, it would be impossible to overcome the challenge of updating the CDC’s interpretation in the face of the digital economy. A lot of criticism is leveled (and often rightly so), but the Brazilian legislator’s concern to keep the regulatory framework for consumer relations up to date and, above all, contemporary, is commendable – so much so that, ictu oculi, the CDC is a law that has worked very well.

However, despite the importance of the above-mentioned legislative concern, which has resulted in consumer codification that can meet contemporary needs, there are situations in today’s consumer market that are challenging and deserve to be highlighted:

(i) the implementation of the new Positive Registry created by Federal Law No. 12.414/2011 and regulated by Federal Decree No. 9.936/2019;

(ii) the emergence of state and municipal Consumer Protection Codes (The Pernambuco State Consumer Protection Code (State Law No. 16.559 of 2019) gained a lot of media coverage during 2019).

(iii) the creation of a Special Committee to issue an opinion on Bill No. 3.515/2015, which regulates consumer credit and provides for the prevention and treatment of over-indebtedness (Federal Bill No. 3.515/2015 (PLS No. 283/2012) and updates the CDC;

(iv) the Ministry of Justice and Public Security issued a new ordinance regulating and updating the recall procedure (Ordinance No. 618 of 2019);

(v) greater adherence by suppliers to the consumidor.gov.br platform and other online dispute resolution methods;

(vi) debates on de-judicialization and access to a fair legal order in the consumer market (WATANABE2019);

(vii) the valuation of consumer time in addressing consumer demands (BERGSTEIN, 2019).

Faced with a market of extreme competition, where consumers have the condition and opportunity to react to any affront to their rights immediately in the online environment (complaints, suggestions,  perceptions, etc.), new companies emerge that, at the time of preparation of the CDC, could not even be imagined.

Such “startups” become part of the consumer market, offering substantial solutions and, mainly, based not only on the application and compliance with the law but especially on the adoption of good practices in consumer relations, an extremely important and paradigmatic concept, as it changes the view of the consumption relationship while it is essentially concerned with the consumer-supplier link.

But the improvement cannot stop there. Needs arise as society evolves, creating new challenges to be faced in the coming years of the Consumer Code and its possible updates, a conclusion reached when analyzing the developments of the Over-indebtedness Bill, such as: the importance and role of suppliers in the Internet of things; the new paradigms presented by sustainability and the circular economy; and international e-commerce of goods and services.                    

Therefore, there are many challenges to be faced with the emergence of new technologies and new consumer relations, and it is up to the enforcers of the law to keep the concern with the constant evolution of the consumer regulatory framework alive.

And it will not be an easy task to overcome them, the application of the CDC will necessarily depend on great efforts so that the achievements made over the 30 years are replicated in the coming years, while, with the new digital economy, the social process of digitalization and the concern with environmental and sustainability issues in the day-to-day lives of consumers who participate in an active and globalized way, the complexity becomes increasingly daunting.

As a result, there is a clear need for all the links in this chain to adapt to the new paradigms of the consumer market immediately. The laws and regulations relating to consumer law tend to keep pace with these transformations without, however, breaking away from the protection provided by the principles laid down in the Consumer Defense Code.

9. CONCLUSION

In 1985, the UN, in its Resolution 39/248, established the need for governments to develop ways of protecting consumers, through guidelines that deal with physical safety, protection of economic interests, and standards that ensure the quality and safety of products and services.

In Brazil, discussions on consumer protection and defense only gained prominence around the time of the aforementioned resolution, since growth at any cost was adopted, with direct repercussions on the issue and decision-making. It emerged in an organized way with the re-democratization, with the Constituent Assembly, and in the Constitution, intending to bring balance to legal consumer relations, marked by inequality, with the major reference to consumer protection and defense.

This protection is highlighted in the current Constitution, in the list of fundamental rights and guarantees, Art. 5th. Inc. XXXII; as a principle of economic and financial order, with emphasis on dignified life and social justice; with the aspect of the intervening State; and with the temporal reference for the elaboration of the Consumer Protection Code, in the transitional constitutional provisions.

In 1990, the Consumer Defense Code came into being, as legal support for the Citizen’s Constitution, and as an instrument for the effectiveness of the fundamental right to consumer protection and defense, with the promotion of knowledge of Brazilians’ rights and duties.

The inclusion of consumer protection in the Federal Constitution in two distinct titles, Title II and VII, brings about the harmonization of these two thematic state functions, as the State and the Constitution are given the main mission of protecting people, through the rights and fundamental guarantees and also the function of intervening in unequal situations that present social imbalances, which cannot be resolved by political or economic means, both titles being aimed at implementing the principle of the dignity of the human person.

The affirmation of a system of consumer protection and defense is based on the inequality inherent in the relationship between consumer and supplier, with a constitutional basis, either through the inclusion of such protection in the list of fundamental rights or as a principle of the economic and financial order. The need for the State to promote the equalization of opposing interests, preserving consumers, who are recognized as vulnerable and hyposufficient, derives from this factual and constitutional recognition.

Knowing the free trade model adopted by Brazil and that contractual relationships are complex, it is understood that consumers can be harmed by the strongest party in the relationship, the supplier, leaving the constitutional system of consumer protection and defense, in particular the CDC and legal provisions, with the instruments to guarantee effective consumer protection.

Given the changes that are occurring in the consumer market, especially those that derive from electronic media, for example, the change to online sales and the use of social networks to offer products and services, it is necessary to monitor such changes, extending also to electronic media the protection and defense of consumers’ needs.

There are many challenges to be faced with the emergence of new technologies and new virtual contractual models in consumer relations, with the responsibility of those applying the law to keep alive the concern with the constant evolution of the consumerist normative framework, without neglecting the constitutional basis that it points to for responses that are capable of maintaining human dignity, social justice and sustainable growth, even though the current confrontation points to complex situations arising from technological advances and international projection and presence.