Brazilian court suspends SUSEP's restriction on advertising of prize-linked philanthropic capitalization bonds.

The 4th Federal Court of Porto Alegre granted an injunction to the Criança Cidadã Project against the Superintendence of Private Insurance (SUSEP). The decision suspends the prohibition on the use of reference images in the advertising of prize-linked philanthropic capitalization bonds. The substitute federal judge, Bruno Risch Fagundes de Oliveira, issued the ruling.

The magistrate suspended the effects of item 2.a of Electronic Circular Letter No. 1/2025/CGRCO/DIORE/SUSEP, which is part of the “Technical Manual for Capitalization Bonds”. The document prohibited “any linking of the prize payment to any good and/or service, whether through referential figures… considering the current regulations (article 14 of CNSP Resolution No. 384/2020)”.

The judicial analysis focused on verifying whether the prohibition on the use of images in advertising material exceeded the regulatory power of the federal agency. The judge clarified that other grounds that motivated the suspension of the operations of the plaintiff's commercial partners were not the subject of analysis.

SUSEP is part of the National Private Insurance System and oversees the insurance, reinsurance, capitalization, and private pension markets. The system establishes that the National Council of Private Insurance (CNSP) has regulatory authority, while SUSEP has an executive function.

The judge acknowledged the principle of deference by the Judiciary to the technical decisions of regulatory bodies, citing a precedent from the Supreme Federal Court. According to the Supreme Federal Court, this stance is justified by the "lack of expertise and institutional capacity of courts to decide on regulatory interventions, which involve polycentric issues and specialized prognoses."

Despite his authority, the judge emphasized that judicial review becomes necessary when there is an overreach of authority or regulatory excess, especially when there is a risk of harm to fundamental rights. In a preliminary analysis, he considered the plaintiff's argument regarding the illegality of the act plausible.

The judge interpreted that Article 14 of CNSP Resolution No. 384/2020, the basis for SUSEP's interpretation, aims to guarantee the consumer's right to receive the prize in cash, not prohibiting referential images in advertising. The resolution defines that "capitalization is the operation that aims to promote the construction of minimum capital, perfectly determined in each plan and paid in national currency, to the holder(s) of the right to redemption and the right to lottery prizes".

The decision noted that the use of purely illustrative images in advertising, with a clear indication of payment in cash, does not violate the purpose of the resolution. The judge considered that SUSEP imposed a prohibition not foreseen in the text nor in the purpose of the CNSP regulation.

The magistrate pointed out that CNSP Resolution No. 384/2020 grants SUSEP several powers to establish restrictions, as in the articles that mention: "SUSEP is empowered to set limits on lottery quotas," "SUSEP is empowered to set limits on instant prizes," "SUSEP is empowered to set minimum series sizes," and "SUSEP is empowered to define percentage limits on quotas for each type of capitalization bond."

However, none of these delegations authorize SUSEP to impose restrictions on advertising and the use of reference images. Article 68 of the resolution only allows the agency to establish "minimum elements and/or standard wording" in advertising, representing an inductive, not restrictive, power.

The judge ruled 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 its social dimension, as the charitable organization demonstrated that the restriction affects its fundraising capacity, threatening the continuity of its social projects. The decision also considered that the measure is reversible should the merits of the case be deemed unfounded.

With this decision, the Citizen Child Project will be able to use reference figures in the promotion of capitalization bonds issued under the prize-linked philanthropy modality. The process will continue with the presentation of a rebuttal by SUSEP (Superintendence of Private Insurance), a reply by the plaintiff, and a subsequent decision on procedural matters.