Por uma interpretação constitucionalmente adequada do Código de Águas Minerais: os procedimentos para eliminação de elementos instáveis no contexto do Estado Regulador

Abstract

[Purpose] To demonstrate the legal viability of regulation and the use by the regulated sector of procedures for the elimination of unstable elements present in mineral waters exploited in Brazil. [Methodology/approach/design] Through a legal and technical-sectoral literature review, using a theoretical-normative approach, from the perspective of the Regulatory State, the article seeks to analyze the compatibility with the Federal Constitution of the position of the former DNPM, which concluded that the use of mineral water treatment methods for removal of unstable elements is illegal. [Findings] In addition to the fact that there is no legal prohibition of such a practice, the Federal Constitution requires the optimal use of public assets, in this case, mineral water deposits, in addition to establishing as guiding principles of the economic order the free enterprise, free competition and consumer protection. [Practical implications] If accepted by the competent regulatory authority, the thesis defended in the present work will allow a more adequate exploration of the mineral water deposits in Brazil, in respect of the constitutional duty of optimizing the use of public goods, at the same time that it will stimulate the development of the respective industry, the expansion of industry competition and the defense of consumer rights. [Originality/value] The mineral water category is the one with the highest production volume in the Brazilian non-alcoholic beverage sector, being the one that grew the most in absolute numbers in the last fifteen years. In view of this, considering the lack of legal studies on the topic, it is of fundamental importance to defend procedures for the elimination of unstable elements present in mineral waters.

Keywords

• constitution
• regulation
• regulatory state
• mining
• mineral water