The new “Advertisement Law of People’s Republic of China” has come into force on September 1, 2015. This law improved the specific provisions for the advertisements of common foods, health foods and foods for special medical purpose. Meanwhile, the new food safety law, which will be implemented on October 1 this year, stipulated that provincial FDA are in charge of the advertisement approval of health foods, drugs, medical equipment.
Compared with the old version published in 1994, there are 10 highlights for the new one:
Enrich and specify the advertising content criteria.
Define the false advertisement and its typical form.
Add the legal obligations and responsibilities of advertising spokesman.
Strengthen the control of tobacco advertising.
Add the management regulations of minors’ advertisement.
Add the regulations of Internet advertisement
Strengthen the supervision of advertisement publication behavior of social media
Add the commonweal advertisement, expand the adjustment range of the law.
Define and strengthen the obligations and responsibilities of industry & commerce administrations and other related departments in supervising the advertising market.
Further enhance the deterrence of legal liability.
The articles about common foods, health foods, foods for special medical purpose, and infant formula in the new advertisement are researched in depth by CIRS food team. And the important revisions are highlighted below.
1. Expand the supervision range of advertisement.
The old law only regulated advertising criteria for 7 goods and services, namely, drugs, medical equipment, (pesticides, veterinary drugs, feed and feed additives), tobacco, foods, wine, and cosmetics（1994 edition）. The new version almost covers all aspects that close to consumers’ life. Except the 7 categories mentioned above, there are 10 categories newly added: health foods, infant dairy products, educational training, investment in commodities, real estate, plant breeding, Internet advertisement, advertising spokesman, minors’ advertisement, and commonweal advertisement.
2. Define the false advertisement and its typical form.
The new law focuses on the issues of false advertisement. It expressly stipulates that false propaganda and misleading information both belong to false advertisement. And the specific cases of false advertisement are listed to strengthen the punishment for false advertisement.
3. Add the legal obligations and responsibilities of advertising spokesman.
Advertiser refers to the natural persons, legal entity or other organizations who design, manufacture, and publish advertisement themselves or delegated to others, in order to promote their commodity or service.
Advertising spokesman refers to the natural persons, legal entity or other organizations who recommend or prove for the commodity or service in the advertisement using its own name or image, except the advertiser.
Advertising actors refers to the person appeared in the advertisement background, and do not make any recommendation or try to prove something directly or indirectly.
3.1 Recommendation and testimony from the advertising spokesman are forbidden for the advertisement of health foods.
3.2 Minors under the age of 10 are forbidden to be the advertising spokesman for any kinds of products. But the expert of industry & commerce administration analyzed that the minor is allowed to be acted as advertising actors.
3.3 If the advertisement is proved to be false, the advertisement spokesman will bear the joint liability. And the natural person, legal entity or other organization, who has receive administrative punishments, will be forbidden to be advertisement spokesman again in three years.
3.4 The new law requested that advertising spokesman should speak based on fact, obey the law, and after the usage. How to make sure the spokesman has used the products? It still needs to wait for the publishing of further national regulations. And it is certain that since September 1, 2015, men cannot speak for the female products any more.
4. Package and label belong to the supervision scope of the new advertisement law.
Products or services can be promoted on the label and trademark directly or indirectly. Contents on the package and label also should be in compliance with the new law. For example, the image of spokesman is forbidden to appear on the package and label of health foods.
5. Advertising channels become narrow.
Without the permission or requirement, any organization or individual is not allowed to send advertisement to one’s home or vehicles, nor can it send advertisement in electronic form. On the mass media for minors (including the children’s TV channels, children’s magazines, and children's area on the website), advertisements of medical care, drugs, health foods, medical equipment, cosmetics, wine, beauty, and online games which are not conducive to physical and mental health of minors are not allowed.
6. Enhance the deterrence of legal liability
The legal liability of publishing false advertisement or promoting forbidden products or service by advertisement is enhanced. If the violation is serious, the business license and advertising registration certificate may be revoked. In addition, the credit discipline is increased. The law stipulated that the relevant illegal information should be recorded in the credit files.
7. Regulations for the minor advertisements
Commercial advertisement is forbidden to be published in the textbooks, teaching materials, exercise books, stationery, teaching aids, school uniforms and school bus, no matter it is commercial sponsorship, naming or any form of advertising. For example, when XX Company sponsored a sports meeting in a primary school, it was not allowed to put advertising leaflets in the teaching materials. Commonweal advertisement is exceptional. But if the commonweal advertisement is commercial sponsored, it is still forbidden to appear the commercial enterprise logo, name, address, contact details and so on.
8. Forbidden contents in the advertisement of dietary supplement and common food.
Forbidden contents in the dietary supplement advertisement
Prohibit the claims that guarantee the efficacy and safety
“Safety”, “no toxic or side effect”, “no dependence” and other similar promises are forbidden in the health food advertisements.
Must not involve the disease prevention, function treatment
“Effectiveness”, “cure rate” and other claims of disease prevention and function treatment are not allowed.
Must not contain any unverifiable content
“The study found”, “experiments show that” and other similar contents are prohibited.
Must not publish advertisements in any disguised form
Health food advertisements cannot be published through teaching health knowledge on the radio, TV, Internet, or newspaper and video.
Other forbidden contents
The claims of “national”, “won the national intangible cultural heritage”, “well-known trademark”, “rating”, “won XX award”, “secret recipe handed down from generations” are all not allowed.
“The most advanced”, “best”, “the latest science”, “the latest technology”, “the most advanced processing technology” and similar absolute expressions are all forbidden.
Forbidden contents in the common food advertisement
Must not express or imply the product can replace breast milk, and the images of baby and lactating woman are also forbidden.
Must not use the name or image of any medical institution and doctor.
When involved specific efficacy, it is forbidden to use the name or image of expert and consumer to prove the efficacy.
Must not use the name and image of government and related institutions, medical institutions, academic institutions, industry organizations.
Except the health foods, food advertisement must not propagate the health function, or express/imply the function by propagating certain component.
The presentation for components and function of health food is kind of objective presentation, which do not belong to the forbidden scope stipulated by the new advertisement law.
9. Illegal advertisement is forbidden to be published since September 1, 2015.
On July 31, 2015, China Food and Drug Administration (CFDA) issued the Notice on Further Strengthening the Supervision of Medical Device and Dietary Supplement Advertisements. This notice stipulated that if the advertisement of drug, medical device and health food does not comply with the new advertisement law, even when the advertisement has been approved, it becomes invalid automatically and cannot be published any more since September 1, 2015. The advertisement must be re-designed, re-made and re-examined. For example, if XX health food was spoke by a star in its advertisement, and had been approved by FDA department, it cannot be published since September 1, 2015.
10. The necessary contents in health food, foods for special medical purpose, and infant formula.
10.1 If the product is a patented product or related to patented methods, the number and type of the patent should be indicated.
10.2 In order to distinguish with non-advertising information, the word of “advertisement” should be clearly marked in the advertisements published through mass media.
10.3 “Contraindications and adverse reactions” should be clearly indicated in the advertisement of foods for special medical purpose. The expression of “this advertisement is only for medical professionals to read” should be clearly indicated in the advertisement of specific total nutritional formula food. For other categories of foods for special medical purpose, the expression of “please purchase and use the product follow the instruction manual or under the guidance of the pharmacist” should be clearly indicated in the advertisement.
10.4 The expression of “this product cannot replace the drug” should be clearly indicated in the health food advertisement.
10.5 In the Provisional Regulations on Food Advertising (revised), it stipulated that the approval number of health food, foods for special medical purpose, infant formula and other special food should be published in the advertisement.
10.6 when the radio stations or TV stations want to publish an advertisement, they must comply with the regulations (for duration, mode, etc.) issued by the state council departments, and clearly indicated the duration.
The new advertisement law and the Provisional Regulations on Food Advertising (revised) have strengthened the punishment for illegal advertisements. Therefore, advertising spokesmen, advertisers, advertising operators and advertisement publishers should pay more attention to these regulations, review your advertisement, and avoid the unnecessary loss.