DANIEL ARTHUR
LAPRES
Avocat ˆ la
Cour dÕAppel de Paris
Barrister and
Solicitor Nova Scotia Canada
29 boulevard Raspail 75007 Paris France
Tel: 0145046252
Fax:0145446445/0142228016
www.lapres.net daniel@lapres.net
Palais: C1056
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
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
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
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.