Impacts of the Pandemic on Commercial Promotions
The Federal Brazilian Savings Bank as know as CAIXA (CEF) issued an official statement on March 23th, 2020, informing that from extraction of number 5478-0, the raffle based on Federal Lottery, which occur as a rule weekly on Wednesdays or Saturdays, have been suspended.
Such measure, initially scheduled to last for a three months period, was taken due the pandemic of the new COVID-19 virus, and is in compliance of the guidelines established by the Brazilian Government to minimize the impact and spread of the virus in the national territory.
As in Brazil, under the relevant legislation of this matter, commercial promotions executed on raffle or similar to raffle must obligatorily have their assessments from Federal Lottery results, the action taken by CEF directly undermines the plan for the free distribution of prizes across the country, concerning companies that have such promotions currently in progress.
In an attempt to minimize the effects of the CEF decision, the Secretariat for Evaluation, Planning, Energy and Lottery (SECAP), currently responsible for the authorization and inspection of free distribution of prizes in the national territory, has made some procedures related to registration, addition and cancellation of commercial promotions more flexible.
As communicated by the SECAP, it has been allowed, exceptionally, that the promotions authorized in raffle or similar to raffle categories, provided that the assessment period has not elapsed, have their category changed for “contests”. If this solution is not in the interest of the promoting company, SECAP has also authorized the extension of the promotion deadlines, until the situation is solved.
For promotions in other categories (contest, instant win and similar transaction), but which were still impacted by the COVID-19 pandemic, SECAP also authorized amendments in the dates, providing an extended period, until the situation is normalized.
Moreover, with the clear intention of not charging the promoting companies, in cases where the terms and conditions were already amended, SECAP is allowing changes through Conduct Adjustment Agreement (TAC), avoiding then, with this measure, the incidence of a new supervisory fee.
In addition, as a more relevant measure, SECAP has allowed those promoting companies that do not see feasibility continuing its promotions, to proceed with its cancellation, upon sending an application signed through Electronic Information System (SEI), as long as the assessment period has not been met.
Despite the competence of SECAP to regulate the issues related to commercial promotions, companies must reflect about the effects of category alteration and/or cancellation of the promotion from the perspective of consumer rights, particularly because of the conveyed offer, including the claim of any acts of God and force majeure for non-compliance with a disclosed offer.