Chinese Advertising Law

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The first edition of the Advertising Law of the People’s Republic of China dates back to as recently as 1995, with a much needed amendment coming into force just over a year ago, on 1st September, 2015. 

More recently still, on 1st September this year, the Interim Measures on Administration of Online Advertising became effective; a subject that we shall cover in detail in a subsequent edition of The Gavel.

The lengthy amendment can be summarised as:
(i) Specifying Rules on the Content of Advertisements. Based on the seven products and services regulated in the original law; pharmaceuticals, medical devices, agricultural pesticides, tobacco, food, alcohol and beauty products; the new Advertising Law adds a number of specific rules regarding advertisements for narcotics or other specific drugs, pharmaceutical precursor chemicals, drug addiction treatment medicines, treatment methods, healthcare foods, veterinary medicines, livestock feed and feed additives, crop seeds and cultivation, infant dairy products, beverages and other foods, education or training, investment products or services with anticipated investment returns, and real estate.

(ii) Clarifying the definition of false advertising and listing typical instances, such as that which deceives or mislead consumers, or those containing false or misleading information.

(iii) Strictly regulating the publication of tobacco advertisements, that are prohibited in mass media communications, in public places, on public transportation, or outdoors. It is also prohibited to display tobacco products in advertisements or public service advertisements for other products.

(iv) Adding rules for the protection of minors. It is prohibited to carry out advertising activities within elementary schools, secondary schools, and kindergartens as well as using teaching materials or stationery for advertising (including disguised advertising), with the exception of public service advertisements. It is prohibited to publish advertisements for medical treatment, pharmaceuticals, healthcare foods, medical devices, cosmetics, alcohol, beauty products, and online games detrimental to the physical and mental health of minors in mass media communications which target minors. Advertisements for products or services which target minors under the age of 14, shall not induce such minors to ask their parents to buy the products or services advertised, nor shall be likely to cause such minors to imitate unsafe acts.

(v) Further regulating electronic advertising. The New Advertising Law sets out several general principles for advertisements transmitted electronically and via the Internet. Advertisements published or distributed electronically will be restricted, such as those found in SMS messages, e-mails, and pop-up advertisements. On 1st July, 2015, the State Administration for Industry and Commerce promulgated the Interim Measures for the Supervision and Administration of Internet Advertisements (Draft for Comment). When formally adopted, there will be special provisions for advertising published on or distributed online.

(vi) Strengthening supervision of mass media advertising. Outlets such as radio and TV stations, and newspapers, which represent the main means of advertising, are further regulated in so far as radio and TV stations shall provide a clear indication as to the length the advertisements, while they, along with newspapers, periodical and audio-visual publishing entities, plus Internet information service providers, shall not carry disguised advertisements for medical treatment, pharmaceuticals, medical devices and healthcare foods by way of introducing knowledge or by other means.

During last year, there have been a few cases related to advertisements. One of the most well known was the case involving “Honest Loan” (诚信贷). In the advertisement concerned, many phrases were employed such as “one hundred percent” and “brand rank #1”, that run foul of Article 9 of the Advertising Law, which states, “Any advertisement shall not involve any of the following circumstances: … using ‘state-level’, ‘highest-grade’, ‘the best’, or other similar words”. The penalty to the advertiser was a fine of ¥200,000.

With the current advertising laws and regulations imposing much stricter controls on advertising than in the past, many kinds of advertisements are now vulnerable to be scrutinised for false advertisement while facing a higher burden for substantiating truthfulness of all claims and statements, providing protection for consumers and their safety.

Disclaimer
This article is intended solely for informational purposes and does not constitute legal advice. Although the information in this article was obtained from reliable official sources, no guarantee is made with regard to its accuracy and completeness. For more information please visit dandreapartners.com or WeChat: dandreapartners.

 

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Carlo D'Andrea
Legal columnist Carlo D’Andrea is Chair of the Legal & Competition Working group of the European Union Chamber of Commerce in China; Shanghai Chapter, Coordinator of the Nanjing Working Group of the Italian Chamber of Commerce in China and has taught Chinese law (commercial and contractual) at Rome 3 University. 法律作家代开乐担任中国欧盟商会上海分会法律与竞争工作组主席,中国意大利商会劳动集团的协调员与曾经在罗马三大担任企业咨询课程中中国商法、合同法的课程教授。

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