Two ordinances amended the rules governing recall campaigns in Brazil earlier this half of the year. The standards modernize the regulations of the procedure imposed by the Consumer Protection Code (article 10, paragraphs 1 and 2) whenever the supplier becomes aware of the possibility of having introduced into the Brazilian market a product or service that poses a risk to the health or safety of the consumer.
The consumer protection agencies responsible for ascertaining the need for a recall are often quite strict in this analysis: if there are doubts about the lack of safety of a particular product, the tendency is for them to decide to perform the campaign.
According to Brazilian law, the main objectives of a recall are to ensure the protection of consumers against risks to their health and safety caused by a product or service offered to them, and to provide the public with comprehensive and correct information about the fact that triggered the recall.
It is precisely in the form of communication that the new Ordinance No. 618/19, promulgated by the Ministry of Justice and Public Safety replacing Ordinance No. 487/12, now repealed, presents the greatest advance compared to the previous rule. The paragraphs of article 4 open the possibility of running the campaign through the company's website and digital media on the Internet, in addition to the radio and TV communication previously provided for.
Through this communication, the supplier must inform consumers of the potential risk they are exposed to when using the defective product or service. To do so, they need to present a media plan with a detailed description of the product or service and the defective component, details about the frequency of disclosure, costs involved, campaign start and end dates, and more. The supplier must also highlight that consumers will incur no costs in joining the recall campaign.
Another change made by the new ordinance causes concern. It is the rule that establishes a period of 24 hours for the supplier to inform the National Consumer Bureau (Senacon) of the beginning of investigations regarding the possible introduction of a product or service into the Brazilian consumer market that presents danger or harmfulness. Upon completion of the investigations, the supplier has two business days to report the reasons why the recall campaign will not be necessary or, if necessary, to report this to Senacon and the appropriate regulatory or rulemaking body.
The previous ordinance provided that the initial report of the fact by the supplier, which should then be addressed to the Department of Consumer Defense and Protection (DPDC), must be done “immediately.” Although the standard did not establish what would be interpreted as “immediately,” the prevailing understanding was that the supplier should carry out this report as soon as it became aware of the problem and then start the recall campaign as soon as possible.
While the legislator's attempt to establish a more objective criterion for verifying a supplier’s compliance with the deadlines is laudable, experience shows that the decision to conduct a recall requires an evaluation of often subjective variables, which can hardly be adequately ascertained and addressed within such tight deadlines.
Another novelty in this area was the publication of Joint Ordinance No. 3/19, an initiative of the Ministries of Infrastructure and Justice and Public Safety. It sets forth provisions for recall procedures specifically for the vehicle market. In compliance with this standard, defective vehicle recall campaigns should be reported not only to Senacon but also to the National Traffic Department (Denatran). Once this is done, at most every 15 days, suppliers must provide information on the updated universe of vehicles served, in accordance with the terms of the manual for registration of recalls in the National Vehicle Registration System (Renavam).
The holding of a recall is mandatory in any event where the supplier becomes aware of a potential health or safety risk arising from a product or service offered by the supplier. Failure to conduct the campaign voluntarily and in a timely manner will result in administrative, civil, and criminal sanctions.