Gamification is here to stay and is now reaching all markets. This is nothing new. Today, the strategy is commonly used in combination with so-called loyalty programs, in which users are motivated by numerous factors to consume and remain loyal to certain companies.
The use of gamification techniques in this environment has been explored by several industries, including in video games. Thereby, gaming companies can ensure the loyalty of their players and offer substantial benefits as one of the motivators for signing up to their service.
In Brazil, the creation of this type of program is regulated by the Consumer Defense Code, together with the rules on Electronic Commerce and the Self-Regulation Code, created by ABEMF (the Brazilian Association of Companies in the Loyalty Market).
If promotions and/or raffles are included, you must also consider the updated wording of Law 5,768, of 1971. This provision deals with the free distribution of prizes and other rules that regulate this area. In addition, the rules of the Caixa Econômica Federal, a Brazilian federal entity with a supervisory function in respect of such practices, require careful consideration.
In terms of the consumer audience, other advertising standards should also be considered. For example, if creating content for children under 18, a different analysis may be necessary regarding the general requirements, level of due care and specific points of attention when creating a loyalty program. Loyalty programs for children and adolescents will also require an analysis of the rules protecting minors, with special focus on the ECA – (the Child and Adolescent Statute – Law No. 8.069 of 1990).
Currently, there are several bills that seek to regulate issues related to loyalty programs pending before the National Congress. Most of these proposals seek to address issues related to airlines and to curb the potential harm that such practice could bring to the consumer. However, there does not appear to be a clear consensus regarding the content of these bills and the proposals merely seem to add to the already existing questions for companies that use such strategies in the market.
To conclude, the question of regulating loyalty programs is not yet settled under Brazilian law. Although the practice is lawful in Brazil and its realization is understood as the gamification of promotions and the creation of a better relationship between consumer and supplier, there are still several challenges. Importantly, there are several legal precautions that companies should take before creating their own standards. Such foresight is justified as a necessary measure to avoid litigation, which may end unfavorably.
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*This article was written by Fernanda Soler Galera