Intellectual Property Law

How does China Regulate Advertising?

By Martha L. Arias

The regulatory framework of advertising in China is found in the Advertising Law of the People's Republic of China 1995 (advertising law).  Congress passed the advertising law on October 27, 1994, the presidential order No. 34 of October 27, 1994, promulgated it, and it entered into force on February 1, 1995. The advertising law is directed to advertisers, advertising operators and publishers engaged in advertising activities within China's territory.  Thus, any advertising within China's territory must abide by this law irrespective of the advertiser's nationality.  This articles offers information on the advertising policy, requirements, prohibitions, controlling authorities, and sanctions.

The policy behind the advertising law is to protect consumers' rights and interests, to promote the healthy development of the advertising industry, and to maintain social and economic order in a socialist market economy. The following requirements and, concretely, advertisement prohibitions clearly reflect the influence of these policies in the reality of a socialist economy.

In general terms, advertising in China must not contain false and deceiving information and must not cheat or misguide consumers (Art. 4).  Any advertising must be distinguishable as such and the mass media cannot publish advertisement in the form of news report. (Art. 13). The advertising law expressly states that no advertising may impair the mental and physical health of the minors and the disable. (Art. 8). Statements of commodity performance, origin, use, quality, producer and manufacturer, valid term, promise, service's items, manner, quality and price must be clear and explicit in any advertisement. (Art. 9). Advertising that promises gifts as promotion must state the type and quality of the complimentary gifts. (Art. 9). Data, statistical information, surveys, and investigation reports must be accurate and conform to the facts, and the source must be revealed. (Art. 10). In addition to these general advertising requirements, the advertising law establishes specific requirements for certain products such as pharmaceutical, agricultural, cosmetic, tobacco and alcoholic products.   For instance, advertising of pharmaceutical products must follow the instructions approved by the public health department and include the notice "purchase and use on physician's prescription" when prescription is required by the central or local government authorities. (Art. 15). No advertisement of special pharmaceuticals such as anesthetic, narcotic, psychotropic, toxic, and radioactive drugs is permitted. (Art. 16).  Tobacco products cannot be advertised on radio, cinema pictures, television, newspaper, magazine or periodicals, public places waiting rooms, conference halls and sports stadiums and gymnasiums. Also, when permitted, advertisement of tobacco products must be marked with the notice "smoking is harmful to your health." (Art. 18).  

The advertising law expressly prohibits any advertising from (1) displaying the national flag, emblem, or anthem; (2) using the names of the state organs or its staff; (3) using the words "state-level," "the highest-level," or "the best," (4) endangering life or property, harm social interests, or hinder social stability; (5) violating good social customs or hider the social public order; (6) containing any pornographic,  superstitious, horrible, violent or ugly information; (7) hindering the environment or natural resources; and (8) discriminating against national origin, race, religious affiliation, or gender.   (Art. 7).  

The controlling advertising authorities are the administration departments for industry and commerce at a national level. Upon knowing about violation of the advertising law provisions, the advertising supervision and controlling authorities shall order the advertiser to (1) stop its practice; (2) make corrections and clear up the advertisement influence by investing the same amount of the initial advertisement; (3) pay a fine equivalent to a higher amount of and less than five times the advertising costs; (4) confiscate the advertising charges of the advertiser operator or publisher; (5)  impose a fine on the advertiser operator or publisher of more than the amount of the advertising charges and less than five times that amount; and, in the case of a serious violation, (6) prevent the advertiser or publisher from the advertising business.   

One may infer from China's advertisement law that its general regulatory mandates are similar to those in most countries.  Yet, the specific regulatory clauses to industries such as tobacco and alcoholic show heavier government intervention. Also, some of the advertising prohibitions and sanctions for advertising violations reflect the policy of China's socialist government.   

Full post as published by IBLS Internet Law Blog on February 11, 2009 (boomark / email).