DANIEL ARTHUR LAPRES

Avocat la Cour dAppel de Paris

Barrister and Solicitor Nova Scotia Canada

Of counsel to Kunlun Law Firm Beijing

29 boulevard Raspail 75007 Paris France

Tel: 0145046252 Fax:0145446445/0142228016

www.lapres.net  daniel@lapres.net

Palais: C1056

 

 

 

 

 

Advertising Law of the

People's Republic of China

 

Adopted at the Standing Committee of the Eighth National People's Congress of the People's Republic of China on October 27, 1994 to be put Into Effect on February 1, 1995.

 

 

CONTENTS

 

CHAPTER ONE GENERAL PROVISIONS

 

CHAPTER TWO GUIDING PRINCIPLES FOR ADVERTISING

 

CHAPTER THREE ADVERTISING ACTIVITIES

 

CHAPTER FOUR EXAMINATION OF ADVERTISEMENTS

 

CHAPTER FIVE LEGAL RESPONSIBILITY

 

CHAPTER SIX SUPPLEMENTARY PROVISIONS

 

 

CHAPTER ONE GENERAL PROVISIONS

 

Article 1

 

The law is formulated to normalize the advertising business, promote sound development of advertising, protect the legitimate rights and interests of consumers, safeguard the social and economic order and to give full play to the positive role of advertising in the socialist market economy.

 

Article 2

 

Advertisers, advertising agents and advertisement publishers shall abide by this law in engaging in advertising business within the territory of the People's Republic of China.

 

The term "advertisement" used in this law refers to commercial ads that publicize, directly or indirectly and through certain media or forms, some kind of commodities or services at the expense of the suppliers of the commodities or services.

 

The term "advertiser" refers to a legal person, an economic organization or an individual that designs, produces and publishes advertisements by one's own effort or others through an entrustment in order to promote one's own sales of goods or services.

 

The term "advertising agent" refers to a legal person, an economic organization or an individual that provides services in designing and producing advertisements or providing related services on the commissioned basis.

 

The term "advertisement publisher" refers to a legal person or an economic organization that publishes ads for advertisers or for advertising agents entrusted by advertisers.

 

Article 3

 

The contents of an advertisement shall be true, lawful and conforming to the requirements in the building of a socialist spiritual civilization.

 

Article 4

 

Advertisements shall not resort to any falsehood to a deception or misleading to the consumers.

 

Article 5

 

Advertisers, advertising agents and advertisement publishers shall abide by the laws, administrative decrees and regulations and the principles of fairness, honesty and credit worthiness in carrying out advertising activities.

 

Article 6

 

Administrations for industry and commerce of the people's governments at and above the county level shall administer and supervise over the activities of advertising.

 

 

CHAPTER TWO GUIDING PRINCIPLES FOR ADVERTISING

 

Article 7

 

Contents of advertisements should be good for the physical and mental health of the people, and be able to promote the quality of commodities or services, protect the legitimate rights and interests of consumers, conform to the social, public and professional ethics and safeguard the dignity and interests of the State.

 

An advertisement should not contain any of the following contents:

 

 1. National flag, national emblem and national anthem of the People's Republic of China;

 

 2. Names of government organs or government functionaries;

 

 3. Words such as State level, highest level or the best etc.;

 

 4. Anything that would be injurious to social stability, personal and property safety and social public interests;

 

 5. Anything that would jeopardize social and public order and violate good social conventions;

 

 6. Contents that are obscene, superstitious, terrorizing, violent and evil;

 

 7. Contents that are discriminative against nationalities, races, religions and sex;

 

 8. Contents that are harmful to the protection of the environment or natural resources; and

 

 9. Other contents that are forbidden by laws and administrative decrees.

 

Article 8

 

An advertisement should not have any content that is injurious to the physical and mental health of underage persons or handicapped persons.

 

Article 9

 

An advertisement should make distinct and clear the specifications, place of origin, uses, quality, price, manufacturer, validity period or promises, if any, of commodities or the contents, forms, quality, price or promises, if any, of the services offered.

 

Whereas a gift is attached to a commodity or services supplied, the advertisement concerned should clearly define the kind and quality of the attached gift.

 

Article 10

 

Data, statistics, survey results, excerpts or quotations addressed in an advertisement should be true and accurate, with the sources clearly indicated.

 

Article 11

 

If an advertisement involves patented products or patented methods, the patent number and patent category should also be clearly defined.

 

An advertisement should not lie about the patent right of any product that has not factually obtained the patent right.

 

It is prohibited to advertise any patent applications that have not been granted, the patent rights or patents that have been terminated, cancelled or invalid.

 

Article 12

 

An advertisement should not have any content that denigrates the commodities or services of other producers or operators.

 

Article 13

 

An advertisement should be able to be clearly recognizable as a kind of advertisement.

 

Mass media should not in any way publish an advertisement in the disguise of a news report whenever an advertisement is published in mass media, for not to mislead consumers, a clear indication should be shown to distinguish it from non-advertising information.

 

Article 14

 

An advertisement for medicines or medical apparatuses should not in any way contain the following:

 

 1. Any unscientific assertions or assurances in terms of efficiency or uses;

 

 2. Treatment efficiency or curative rate;

 

 3. Comparisons with other medicines or medical apparatuses in efficacy or safety;

 

 4. Titles or images of medical research institutes, academic institutions, medical organizations or experts, doctors or patients; and

 

 5. Other contents that are prohibited by laws and administrative decrees.

 

Article 15

 

The contents of an advertisement for a medicine should be based on the indications approved by the public health administrative department of the State Council or by the public heath administrative department of a province, autonomous region or municipality under the directy administration of the central government.

 

An advertisement for therapeutical medicines that must be applied under the guidance of doctors as required by the State should include the words of "To seek doctor's advice in the purchasing and application".

 

Article 16

 

No advertising is allowed for such special purpose drugs as anesthetics, psychotropic drugs, toxic drugs and radioactive drugs.

 

Article 17

 

An advertisement for any farm chemicals should not contain the following;

 

 1. Any absolute assertions of safety, such as toxic-free or harmless;

 

 2. Any unscientific assertions or assurances in terms of effectiveness;

 

 3. Written or oral language or pictures that violate the procedures for the safe use of farm chemicals; and

 

 4. Other contents prohibited by law and administrative decrees.

 

Article 18

 

Advertisements of tobacco are prohibited to be published through broadcast, films, television, newspaper or periodicals.

 

It is prohibited to post tobacco advertisements in any waiting rooms, cinemas and theatres, meeting halls, sports sites and gyms and other public places.

 

An advertisement for tobacco should carry the indication of "Smoking is harmful to your health".

 

Article 19

 

The contents of advertisements for goods, wines and cosmetics should conform to the requirements as set by health departments and not use any medical terms or terms easily to confuse the goods with medicines.

 

CHAPTER THREE ADVERTISING ACTIVITIES

 

Article 20

 

In carrying out advertising activities, advertisers, advertising agents and advertisement publishers shall sign written contracts to define the rights and obligations of each other.

 

Article 21

 

In carrying out advertising activities, advertisers, advertising agents and advertisement publishers should not engage in any form of unfair competition.

 

Article 22

 

The commodities or services to be advertised should be fully covered in the business scope of the advertisers no matter the advertisements are designed, produced and published by the own effort of the advertisers or by others under the entrustment of the advertisers.

 

Article 23

 

Advertisers shall entrust the designing, production and publishing of advertisements to advertising agents and publishers that are lawful for their operation.

 

Article 24

 

In designing, producing and publishing advertisements by own efforts of the advertisers or others under entrustments by the advertisers, the advertisers shall have or provide the following true, legal and valid documents of certification:

 

 1. Business licenses and other documents certifying production and management qualifications;

 

 2. Certificates for the contents of advertisements about commodity quality issued by quality inspection organizations; and

 

 3. Other documents certifying the truthfulness of the contents of the advertisements.

 

 If the publishing of advertisements requires the examination by relevant administrative departments in charge according to the provisions of  Article 34 of this law, relevant documents of approval shall be provided.

 

Article 25

 

In using the names or images of others for advertising, the advertisers or advertising agents shall get the prior written approval of the persons concerned. If the names or images or persons without the capabilities of civil acts or whose capabilities of civil acts are limited are used, the advertisers shall get the prior written approval of their guardians.

 

Article 26

 

An advertising agent shall have the necessary professional staff and advertisement making equipment and gone through the company or advertising management registration before carrying out advertising activities.

 

In handling advertising business, broadcasting and television stations, newspapers and periodicals and publishing units shall designate special departments to handle such business and go through the procedures for the registration of concurrently handling advertising business.

 

Article 27

 

Advertising agents or publishers shall examine relevant documents and verify the contents of advertisements according to law and administrative decrees. Advertising agents shall not provide services in the designing and production of advertisements and in agency business for advertisements whose contents are not factual or the documents of certification for which are incomplete and advertisement publishers shall not publish the advertisements thereof.

 

Article 28

 

Advertising agents and publishers shall set up and perfect the system of registration, examination and file management concerning advertising business according to the relevant regulations of the State.

 

Article 29

 

Fees collected for advertising shall be reasonable and open and the standards and methods for fee collection shall be reported to the price management and administrations for industry and commerce for the record.

 

Advertising agents and publishers shall make public their standards and methods for fee collection.

 

Article 30

 

The media coverage, television viewing rate and the size of distribution provided by advertising publishers to advertisers and advertising agents shall be true to facts.

 

Article 31

 

It is prohibited to design, produce and published advertisements for commodities or services prohibited by the laws or administrative decrees and for commodities or services whose advertising is prohibited.

 

Article 32

 

Posting of advertisements outdoors shall not be allowed in the following cases:

 

 1. The posting is on traffic safety facilities or traffic marks;

 

 2. The posting would affect the use of municipal public utilities, traffic safety facilities and marks;

 

 3. The posting would affect production or people's life or be harmful to the view of the city;

 

 4. The posting is in areas under the command of building structures of government organs, cultural relics protection units or scenic spots; and

 

 5. The posting is in areas prohibited for advertising by people's governments at and above the county level.

 

Article 33

 

The plans and management methods for posting advertisements outdoors shall be formulated by the local people's governments at and above the county level by referring to advertisements supervision and control, urban construction, environmental protection and public security departments.

 

CHAPTER FOUR EXAMINATION OF ADVERTISEMENTS

 

Article 34

 

Advertisements for medicines, medical apparatuses, pesticides, veterinary medicines and other commodities through broadcast, films, television, newspapers, periodicals and other media and other advertisements that are required for examination by law and administrative organs shall be examined by relevant administrative departments in charge according to relevant laws and administrative decrees (hereinafter referred to as "advertising examination organizations") before they are published and are prohibited from being published without examination.

 

Article 35

 

Advertisers shall submit related documents of certification according to law and administrative decrees in applying for examination of their advertisements with the advertisement examination organizations. Advertisement examination organizations shall examine the advertisements and take proper decisions according to law and administrative decrees.

 

Article 36

 

No unit or individual shall forge, falsify or transfer documents of approval for the examination of advertisements.

 

CHAPTER FIVE LEGAL RESPONSIBILITY

 

Article 37

 

For acts of falsely advertising commodities or services in violation of this law, the advertising supervision and administration organizations shall order the advertisers to stop publication and to use the amount of expense equal to the expenses for advertising to make open corrections to offset the influence within corresponding scope and to pay a fine ranging from twice to less than five times the amount used for advertising. The advertisement fees collected by advertising agents and publishers of the said advertisements shall be confiscated and a fine ranging from twice to less than five times the amount they have collected for advertising shall be imposed on them. If the case is very serious, their advertising business shall be terminated. If the case is serious enough to constitute a crime, criminal responsibilities shall be affixed.

 

Article 38

 

For acts of publishing false advertisements to deceive or mislead consumers, thus causing damages to the lawful rights and interests of consumers who have bought the commodities or accepted the services, the advertisers shall bear civil responsibility and advertising agents and publishers shall bear joint and several responsibility if they have designed, produced and published the advertisements even though they knew or should have known the falseness of the advertisements. Whereas an advertising agent or publisher is unable to provide the true name and address of the advertiser(s), it should bear all the civil responsibility.

 

Social or other organizations shall bear joint and several responsibilities when recommending commodities or services through false advertisements and thus causing damages to the lawful rights and interests of consumers.

 

Article 39

 

For acts that have violated the provisions of paragraph 2 of  Article 7 of this law in publishing advertisements, the advertising supervision and administrative organizations shall order the advertisers, advertising agents or publishers responsible to stop publication and openly make corrections, confiscate the advertising expenses and impose a fine ranging from twice to less than five times the amount of the advertising expenses. If the case is very serious, the business license of the advertising business shall be terminated. If the case is serious enough to constitute a crime, criminal responsibilities shall be affixed.

 

Article 40

 

For acts violating the provisions of Articles 9 through 12 of this law, the advertising supervision and administrative organizations shall order the responsible advertisers, advertising agents or advertisement publishers to stop publication and make open corrections, confiscate the advertising expenses and impose a fine ranging from twice to less than five times the amount of advertising expenses.

 

For acts violating the provisions of Article 13 of this law, the advertising supervision and management organizations shall order advertisement publishers to make corrections and impose a fine ranging from over RMB 1,000 to less than RMB 10,000 on the advertisement publishers.

 

Article 41

 

For acts of advertising medicines, medical apparatuses, pesticides, foodstuffs, wines and cosmetics in violation of the provisions of Article 31 of this law, the advertising supervision and administrative organizations shall order the responsible advertisers, advertising agents or advertisement publishers to correct or stop publication, confiscate the advertising expenses and may impose a fine concurrently ranging from twice to less than five times the amount of the advertising expenses. If the case is very serious, the advertising business shall be terminated.

 

Article 42

 

For acts of advertising tobacco through broadcast, films, television, newspapers or periodicals in violation of the provisions of  Article 18 of this law or acts of posing tobacco advertisements in public places, the advertising supervision and administrative organizations shall order the responsible advertisers, advertising agents or advertisement publishers to stop publication, confiscate the advertising expenses and may concurrently impose a fine ranging from twice to less than five times the advertising expenses.

 

Article 43

 

For acts of advertising without approval by advertisement examination organizations in violation of the provisions of Article 34, the advertising supervision and administrative organizations shall order the responsible advertisers, advertising agents or advertisement publishers to stop publications, confiscate the advertising expenses and concurrently impose a fine ranging from twice to less than five times the amount of the advertising expenses.

 

Article 44

 

For acts of providing false certificates for advertisers, the advertising supervision and administrative organizations shall confiscate the illegal proceeds and impose a fine ranging from RMB10,000 to RMB100,000. If the case is serious enough to constitute a crime, criminal responsibilities shall be affixed.

 

Article 45

 

If an advertisement examination organization has taken the decision of approval for advertisements that have violated the law, the person in charge directly responsible or other persons directly responsible shall be given administrative punishments by the unit to which they belong, or by organs at the next higher level or by administrative and supervision department.

 

Article 46

 

Working personnel of advertising supervision and management organizations and advertisement administrative organs shall be given administrative punishments for committing dereliction of duty, abuse of their power to personal gains. If the case is serious enough to constitute a crime, criminal responsibility shall be affixed.

 

Article 47

 

Advertisers, advertising agents or advertisement publishers shall bear civil responsibility if they have committed one of the following acts of infringements in violation of the provisions of this law:

 

 1. The contents of an advertisement are harmful to the physical and mental health of underage persons or handicapped persons;

 

 2. Infringe on and use other's patent rights;

 

 3. Denigrating the commodities or services of other producers or managers;

 

 4. Use of the names or images of others without prior consent; and

 

 5. Other acts that infringe upon the civil rights and interests of others.

 

Article 48

 

Upon a refuse to accept administrative punishments, a person should apply for a review with the organ at the next higher level within 15 days starting from the date of receiving the notice of punishments. The person concerned may also bring the case directly before the people's court within 15 days starting from the date of receiving the notice of punishments.

 

The organ of review shall take the review decision within 60 days starting from the date of receipt of the application for review. If the party concerned refuses to accept the decision of the review, it may bring the case before the people's court within 15 days starting from the date of receipt of the notice of review decision. If a review organ fails to take a decision within the time limit, the party concerned may bring the case before the people's court within 15 days starting from the date of expiry of the review period.

 

If a party concerned fails to apply for a review or bring the case before the people's court and yet refuses to implement the punishment decision, the organ which has taken the decision may apply with the people's court for compulsory enforcement.

 

 

CHAPTER SIX SUPPLEMENTARY PROVISIONS

 

Article 49

 

The law shall be in force starting from February 1, 1995. Should any laws and regulations concerning advertising promulgated before the enforcement of this law come into conflict with this law in contents, the provisions of this law previal.