The End Of Outdoor Advertising In The City Of São Paulo
Author: Mauricio Maleck, Veirano Advogados

Since January 1st, 2007, outdoor advertisement has been prohibited, including electronic billboards (front-lights and back-lights), pamphlets, aerial advertising, ads on taxis and buses, as well as other external forms of advertisement.  The only permissible advertising is on city-owned property such as bus shelters, clock billboards (that also display the temperature), ads atop street signs, mail boxes, public trash bins and newsstands.

Of course, advertisements are permissible to identify businesses (such as signs on stores and restaurants), however these signs are limited to a maximum area of four square meters, depending on the size of the front of the building (four square meters for buildings between ten and one-hundred meters in height).  Signs must be adjusted to the new rules before March 31, 2007. 1

These rules are stated in the polemic Bill No. 379, of 2006, which was authored by the current mayor of São Paulo, Mr. Gilberto Kassab. 2

This Bill, which was known as the Clean City Bill, was approved on September 26, 2006 by a majority of the Municipal Chamber of São Paulo.  It passed in a vote of forty-five to one (Dalton Silvano, who worked in advertising before beginning his political career, was the only Assemblyman to vote against the bill).

The story began on January 5, 2006, when the City of São Paulo and the Association of Outdoor Advertising of the State of São Paulo (SEPEX-SP) signed a Cooperation accord.  Under this agreement, the members of SEPEX-SP (which are comprised of approximately thirty companies), removed advertisements that were not in compliance with prior Law No. 13,525, of 2003, beginning with the city’s fifteen main avenues.

Around twenty days later, approximately one-hundred ads that violated said law were removed.  This was the initial result of the partnership between the member-businesses of SEPEX-SP and the Government of the City of São Paulo.

Meanwhile, in mid-May of 2006, more than one-thousand violating advertisements were removed.  Despite this, the advertisers came to learn through an article published in the newspaper Folha de São Paulo that a bill banning outdoor advertisement was being proposed.

One justification for the new bill was that it was not possible for the city authorities to inspect and remove all the illegal advertisements in the city of São Paulo, in light of its size.  Therefore, Mr. Kassab proposed a very aggressive solution in the aforementioned bill.

The representatives of SEPEX-SP demonstrated against the Mayor’s proposal due to the difficulties it would cause them.  SEPEX-SP also argued that the companies which integrated SEPEX-SP were also fighting against “visual pollution”, and that bill which came as a surprise, and was much more radical, was but a means, found by Mr. Kassab, to end the partnership.

Subsequently, the Brazilian Association of Advertisers (ABA) also spoke out against the city’s bill.  The ABA concluded that the restriction on outdoor advertisement would not benefit society, the economy or the advertising companies.  They emphasized that city-owned property was insufficient to meet all the advertising needs of companies. 

The ABA then proposed the following solution (which is the alternative applied in large cities in Brazil and around the world): allowing the rules to be more flexible depending on region of the city of São Paulo, since each one possesses its own characteristics and architecture. 

SEPEX-SP agreed that there continue to be many illegal advertisements, but if the City were to oversee public advertising with more intensity and efficiency, the problem could be resolved without radical action.

Even after public discussions in the Municipal Chamber of the city of São Paulo — in which various advertising companies criticized the bill (recommending various changes in it) — , on September 26, 2006, the bill was approved in a Municipal Chamber plenary session, which became Law No. 14,233/06, published in the Official Municipal Gazette of September 27th, 2006. 3

The advertising industry, as well as other entities and associations, believe that the new law will negatively affect approximately twenty-thousand employees who work with advertising.  Small companies may be unable to find legal spaces to advertise their products or services, taking into consideration the raise in prices and the high-demand for legitimate advertising spots.

Moreover, stores and restaurants will have to spend money to change their signs until March 31, 2007, in view of the new rules, instead of investing on their business.

On the other hand, considering that the authorities were not successful in banning and supervising the ads in the city of São Paulo in the past, they may not succeed in implementing the new law, which is much more severe in comparison to the prior one.

In view of this scenario, in the beginning of December of 2006, some advertisement entities started to bring lawsuits arguing that new Law. No. 14,223/06 is unconstitutional, since it violates Principles of Reasonability and the Freedom of Enterprise.

The State Court of São Paulo accepted these arguments and granted several injunctions suspending the effects of Law No. 14,223/06. 4

On the other hand, there are judges denying and revoking injunctions—including judges from the State Court of Appeals—, under the argument that said law is constitutional.

This discussion has not been addressed to the Supreme Court.

People believe that a good alternative to fight against the “visual pollution”—created by massive ads in the city of São Paulo—would be to ban billboards only in some specific areas of the city, counting on the cooperation offered and provided by SEPEX-SP and related associations to help supervise and stop illegal advertisement.

In this regard, it is noteworthy that there is some talk that another bill may be proposed making the rules of Law No. 14,223/06 more flexible, notably by creating advertising zoning rules for the City of São Paulo.  We shall have to wait to see how the matter develops.