Brazil’s highest court on non-constitutional issues, the Superior Court of Justice (STJ), ruled that certain advertisements may lawfully use a font size that is less than 12 points. The ruling came as a result of a claim by the Consumer Defense Nucleus (Nudecon) of Rio de Janeiro, which asked the court to require telephone companies to use a font size of 12 points in their advertisements.
In its filing, Nudecon relied on Article 54 of the Consumer Protection Code. Article 54 requires that clauses in contracts of adhesion be drafted in 12-point font or larger.
The font size requirement in the Consumer Protection Code is similar to requirements under US law. For example, the Uniform Commercial Code (UCC) requires certain contract clauses be “conspicuous” – that is, written in a way that a reasonable person would notice them. This is why disclaimers of warranties and waivers of jury trial rights are usually in bold, caps, or larger fonts.
In this case, however, the court disagreed. In a unanimous decision, the STJ found that there are “important elements of distinction” between contracts and advertisements. By their very nature, contracts and advertisements are legally distinguishable. A contract is an enforceable, binding agreement among parties. On the other hand, an advertisement is nothing more than an offer.
In addition, the court focused its opinion on costs. It found that the burden caused by the increased cost of publishing advertisements in larger fonts outweighed any benefit gained by the public. Whereas the font size in a contract can easily be increased without any significant cost to the parties, the same cannot be said for an advertisement in a magazine, for example. The court also commented that the history of advertisements written in minuscule font sizes in the classified section of newspapers is customary and usual practice.
While the court agreed with Nudecon’s argument that the use of a smaller font size could potentially result in misleading advertisements, it concluded that each case would need to be analyzed on a case-by-case basis.
