Digital Influencers and Advertising: CONAR Rules and Responsibilities

This page is a translation of the original Portuguese text, provided for convenience. It deals with Brazilian law. If there is any discrepancy, the Portuguese version prevails. Read the original in Portuguese

Digital influencers acting as advertising vehicles have created regulatory gaps that CONAR (Brazil’s National Advertising Self-Regulation Council) and the Consumer Protection Code (Código de Defesa do Consumidor) are trying to fill. Failing to clearly identify sponsored content is an unlawful practice, and it exposes advertisers, agencies, and content creators to civil and reputational sanctions.

What CONAR is and how it regulates influencer advertising

The National Advertising Self-Regulation Council (CONAR) is a private organization founded in 1980. Its members are advertising professionals, advertisers, and media outlets. Its central rulebook is the Brazilian Advertising Self-Regulation Code (CBAP), which binds members through voluntary membership and does not have the force of state law. This self-regulatory nature is central to the debate: the Council’s decisions carry reputational and professional consequences, but they lack the coercive force of a court judgment or an administrative sanction.

Annex U of the CBAP, added in 2021, is the specific regulatory framework for advertising carried out by digital influencers. It requires every commercial communication published on a content creator’s profiles and channels to be identified in a conspicuous, clear, and immediate way, regardless of format, whether a static post, story, video, live stream, or audio content. Conspicuousness is the defining test: consumers must be able to recognize the advertising nature of the message without searching for it, guessing, or reading fine print.

Annex U does not merely recommend best practices. It specifies the accepted terms for identification, with a preference for the tags #publi, #publicidade, and #ad, and it requires those tags to be placed prominently, at the beginning of the content or somewhere easy to see. Burying them among dozens of other hashtags at the end of a caption is prohibited.

Joint and several liability: advertiser, agency, and influencer

CONAR’s liability model spreads responsibility across everyone in the advertising chain. The advertiser, who directly benefits from the commercial exposure, is answerable for the communication’s compliance even if its creation and publication were entirely delegated to third parties. The agency or communications firm that arranges the influencer’s engagement shares responsibility for supervising the content produced. The digital influencer, as the vehicle carrying the message, is also answerable to the Council.

This allocation reflects the logic of the traditional advertising system, carried over to the digital environment. Joint and several liability prevents advertisers from escaping responsibility by claiming they did not know how the influencer promoted the product, and it prevents influencers from hiding behind a lack of instructions from the party that hired them. The duty to identify sponsored content falls on everyone involved in the legal arrangement behind the advertisement.

In practice, influencer contracts that omit express clauses on compliance with the CBAP and consumer protection law create risk for both sides. An influencer who fails to meet the identification requirement may be held liable before CONAR and, depending on the case, before the competent Procon (the state consumer protection agency) or in court. The advertiser may face the same consequences.

Failing to identify sponsored content is not a mere technicality. It amounts to deceptive advertising by omission, with consequences that go beyond self-regulation and reach consumer law.

CONAR may order the suspension of irregular advertising, issue a public warning, and, in the most serious cases, expel the offending member from the Council. Although these measures are not coercive in the sense of state law, they have a significant reputational impact in the advertising market, where credibility is an essential asset.

The Consumer Protection Code and heightened vulnerability

CONAR’s self-regulation does not exhaust the applicable rules. Article 37 of the Consumer Protection Code prohibits all deceptive or abusive advertising and defines as deceptive any communication that omits relevant information capable of misleading the consumer. Failing to identify the advertising nature of an influencer’s posts fits squarely within that definition: the consumer receives a message that looks like a spontaneous personal recommendation when it is in fact paid commercial communication.

The Code gives children and teenagers heightened protection, recognizing their condition of extreme vulnerability. Influencers who direct sponsored content to children and adolescents without proper identification commit an aggravated violation. They face administrative sanctions from Procon and the possibility of a public civil action (ação civil pública, a collective lawsuit) filed by the consumer protection arm of the Public Prosecutor’s Office (Ministério Público). The National Consumer Protection Council and Senacon (Brazil’s National Consumer Secretariat) have already issued technical notes recognizing that the CDC applies to influencer advertising practices.

CONAR’s self-regulation and consumer protection law therefore complement each other. Complying with the CBAP does not, by itself, guarantee full legal compliance, just as the absence of a complaint before CONAR does not rule out civil or administrative liability under the CDC. Legal professionals who advise influencers or brands should consider both sets of rules together.

Frequently Asked Questions

Can CONAR force an influencer to remove a sponsored post that lacks identification?

As a private self-regulatory body, CONAR has no state coercive power to compel the removal of content. Its decisions bind members through contractual membership, and noncompliance results in internal sanctions, such as suspension of the irregular advertising and a public warning. When compulsory removal of content is necessary, it requires a court order or a reasoned administrative act based on the Consumer Protection Code, issued by the bodies of the National Consumer Protection System.

Is using #ad in English enough to meet the identification requirement in Brazil?

Annex U of the CBAP directs the use of Portuguese-language terms, such as #publi and #publicidade, because the average Brazilian consumer understands them immediately. The #ad tag, although widely used, may not satisfy the conspicuousness requirement when the post’s target audience is predominantly Portuguese-speaking without fluency in English. The deciding factor is whether the audience unmistakably understands the message, so using #ad alone on content aimed at the general public in Brazil carries a significant regulatory risk.

What is the concrete legal risk for brands that hire influencers without requiring identification of sponsored content?

Advertisers are exposed to administrative enforcement actions by the state Procons and by Senacon, with fines under Article 56 of the CDC. There is also the risk of a public civil action brought by the Public Prosecutor’s Office, seeking compensation for diffuse harm to the consumer market. On the contract side, the lack of a regulatory compliance clause in the agreement with the influencer makes it harder to transfer or share the burden of compensation. Reputational damage, although hard to measure, often has a greater economic impact than the financial penalties themselves.

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As informações deste artigo são de caráter informativo e não substituem consulta jurídica individualizada. Cada caso possui particularidades que exigem análise específica.