Brazilian court suspends SUSEP's restriction on the use of images in advertising for APAE's philanthropic titles.

The Federation of APAES of Rio Grande do Sul obtained a preliminary injunction that partially suspends Circular No. 1/2025/CGRCO/DIORE/SUSEP. The court order, issued this Thursday (18), allows the entity to once again use reference figures in the advertising of capitalization bonds in the prize-winning philanthropy modality, its main source of resources. ( check the decision of federal judge Marcelo Cardozo da Silva )

The case is being processed in the 10th Federal Court of Porto Alegre and questions the limitations imposed by the Superintendence of Private Insurance (SUSEP) through the "Technical Manual of Capitalization Bonds," published in February of this year.

In its initial petition, the Federation requested "the granting of an ex parte urgent injunction to suspend Electronic Circular Letter No. 1/2025/CGRCO/DIORE/SUSEP, with the aim of allowing the use of reference figures for goods and/or services in the promotion, dissemination, and marketing of prize-linked philanthropic capitalization bonds for which it is the assignee of the redemption right."

The organization argued that the restrictions "have no legal basis and represent a clear innovation in the sector's regulations." According to APAE, SUSEP exceeded its regulatory authority by prohibiting the use of reference images in advertising.

The federal judge responsible for the case based his decision on similar grounds to those presented by Judge Bruno Rish Fagundes de Oliveira, of the 4th Federal Court of Porto Alegre, in a similar case. The judicial analysis recognized that SUSEP, although it has regulatory power in the insurance and capitalization market, must act within legal limits.

The decision highlighted that SUSEP was established by Decree-Law No. 73/66 and is part of the National Private Insurance System. The decree establishes a hierarchy that assigns to the National Council of Private Insurance (CNSP) the normative competence to set guidelines for capitalization policy, while SUSEP is responsible for implementing these policies and supervising the entities.

The central point of the dispute lies in the interpretation of article 14 of CNSP Resolution No. 384/2020, which states: "It is forbidden to link the payment of a raffle to the acquisition of any goods and/or services." SUSEP has broadened this prohibition to forbid any use of referential figures in advertising.

The judge understood that the correct interpretation of the rule should consider its purpose of ensuring that the consumer receives the prize in cash, not preventing the use of illustrative images in advertising. The decision noted that the CNSP Resolution does not explicitly prohibit the use of referential images, as long as it is clear that the payment is in cash.

The judicial analysis indicated that CNSP Resolution No. 384/2020 contains specific delegations to SUSEP to establish restrictions in different aspects, but none of them grants powers to limit advertising and the use of reference images. Article 68 of the Resolution only allows SUSEP to establish "minimum elements and/or standard wording" in advertising.

The decision considered that the restriction imposed by SUSEP could violate the constitutional principles of free enterprise and the precepts of Law No. 13.874/2019 (Economic Freedom Law). Article 4, VIII, of this law stipulates that the Public Administration must avoid the abuse of regulatory power that restricts "the use and exercise of advertising and publicity in an economic sector".

Regarding the risk of harm, the judge acknowledged that the restriction critically affects the charitable organization's fundraising capacity. The decision considered that the limitation threatens the continuity of social projects and the care provided to vulnerable children.

The Federation of APAEs of Rio Grande do Sul uses products such as "Trilegal" and "Trilegal Tchê" for fundraising, always indicating the illustrative nature of the images in its campaigns. The organization stated that prohibiting the use of such reference images compromises the effectiveness of its marketing strategies.

Federal Judge Marcelo Cardozo da Silva has ordered the suspension of the effects of item 2.a of Electronic Circular Letter No. 1/2025/CGRCO/DIORE/SUSEP in relation to the plaintiff. The decision allows the Federation to use reference figures in the promotion of prize-linked philanthropy capitalization bonds.

SUSEP must prove compliance with the decision within 10 days and file a response. The agency will need to indicate what evidence it intends to produce, detailing the disputed points in an organized manner and in bullet points.

After receiving the objection, the APAE Federation will have 15 days to respond. During this period, it may present new evidence and address matters of public order, including aspects such as standing and procedural interest.

The court decision is reversible if the merits of the case are deemed unfounded. The process will continue its course in the 10th Federal Court of Porto Alegre, seeking to clarify the limits of SUSEP's regulatory action regarding the advertising of prize-linked philanthropic capitalization bonds.

SUSEP – CNSP Resolution No. 384, of June 09, 2020