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| Advertisement Law of the People s Republic of China 2006-7-1 17:30:48 |
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(Adopted at the Tenth Session of the Standing Committee of the Eighth National People's Congress on October 27, 1994, and entered into force as of February 1, 1995.)
Contents
Chapter I General Provisions Chapter II Requirements of Advertising Chapter III Advertising Activities Chapter IV Advertisement Examination Chapter V Legal Responsibility Chapter VI Supplementary Provisions
Chapter I General Provisions Article 1 This law is formulated in order to regulate advertising activities, promote the healthy development of the advertising sector, protect the lawful rights and interests of consumers, maintain the social and economic order, and let advertisements play an active role in socialist market economy. Article 2 Advertisers, advertising operators and advertisement publishers, when engaging in advertising activities within the territory of the People's Republic of China, shall abide by this law. "Advertisement" as the term is used in this Law refers to any commercial advertisement, which a commodity operator or service provider pays for, through certain media or forms, directly or indirectly introducing their commodities being sold or services being provided. "Advertiser" as the term is used in this Law refers to any legal person, other economic organization or individual, who, with the purpose of promoting the sales of commodities or providing services, is to design, produce and publish advertisements by itself or through commissioning others. "Advertising operator" as the term is used in this Law refers to any legal person, other economic organization or individual, who is commissioned to provide advertisement designing, producing and agent services. "Advertisement publisher" as the term is used in this Law refers to any legal person or other economic organization which publishes advertisements for advertisers or advertising operators commissioned by advertisers. Article 3 An advertisement shall be true to facts, lawful, and in compliance with the requirements of raising socialist cultural and ideological progress. Article 4 An advertisement may not contain any false and deceiving information, and may not cheat or misguide consumers.
Article 5 Advertisers, advertising operators and advertisement publishers shall, when engaging in advertising activities, abide by laws and administrative regulations and adhere to the principles of fairness and trustworthiness. Article 6 The administration for industry and commerce of the people's governments at or above the county level are advertising supervision and control organs.
Chapter II Requirements of Advertising Article 7 The contents of advertisements shall be conducive to the physical and mental health of the people, promote the improvement in quality of commodity and service, protect the lawful rights and interests of consumers, be in compliance with social morality and professional ethics, and safeguard the dignity and interests of the state. Advertisements may not contain any of the following circumstances: 1. using the national flag, national emblem and national anthem of the People's Republic of China; 2. using the names of state organs or names of staff of state organs; 3. using such words as the state-level, the highest-level or the best; 4. hindering social stability or endangering the safety of life or property, or harming the social public interests; 5. hindering the social public order or violating the good social customs; 6. carrying any pornographic, superstitious, horrible, violent or ugly information; 7. carrying any nationality, racial, religious or sex discriminating information; 8. hindering environmental and natural resources protection; and 9. other circumstances that are prohibited by laws and administrative regulations. Article 8 Advertisements may not impair the physical and mental health of the minors and the disabled. Article 9 Statements in advertisements on commodity's performance, origin of production, use, quality, price, producer and manufacturer, valid term, and promise, and service's items, manner, quality, price and promise shall be clear and explicit. An advertisement, in which gifts are indicated to be presented in promoting the sales of commodities or providing services, shall state the type and quantity of gifts as compliments. Article 10 Data, statistical information, investigation and survey findings, digest and quotes used in an advertisement shall be true to facts and accurate, and their sources shall be indicated. Article 11 An advertisement involving patented products or patent methods shall clearly indicate the patent number and the type of patent. The unpatented may not pretend to be patented in advertisements. The use of ungranted patent applications or terminated, nullified or invalid patents to advertise is prohibited. Article 12 An advertisement may not belittle the commodities or services of other producers and manufacturers or operators. Article 13 An advertisement shall be distinguishable, and enable consumers to identify it is an advertisement. The mass media may not publish advertisements in the form of news report. Advertisements published through the mass media shall bear advertisement marks to differentiate them from other nonadvertisement information and may not lead to the misunderstanding of
consumers. Article 14 Advertisements for pharmaceuticals, medical apparatus and instruments may not contain the following contents: 1. unscientific affirmations, statements or promises on efficacy; 2. indication of the cure rate or efficacious rate; 3. comparison of efficacy and safeness with other medicines, medical apparatus and instruments; 4. use of the name or image of medical research unit, academic organization, medical unit or expert, doctor or patient as proofs; and 5. other contents that are prohibited by laws and administrative regulations. Article 15 The contents of advertisements for pharmaceuticals must take as the standards the instructions approved by the public health administrative department under the State Council or public health administrative departments of provinces, autonomous regions and municipalities directly under the Central Government. Advertisements for therapeutic pharmaceuticals which, as provided by the state, shall be used under physician's advice must be marked "purchase and use on physician's prescription". Article 16 Special pharmaceuticals such as anaesthetic, narcotic, psychotropic, toxic and radioactive drugs may not appear in advertisements. Article 17 Advertisements for agricultural chemicals may not contain the following contents: 1. absolute affirmations indicating its safeness such as non-toxic or non-harm; 2. unscientific affirmations or promises indicating its effectiveness; 3. words, languages or pictures that violate the safe use regulations of agricultural chemicals; and 4. other contents that are prohibited by laws and administrative regulations. Article 18 Publishing of advertisements for tobacco by means of radio, cinema pictures, television, newspaper, magazine or periodical is prohibited. Erecting or placing advertisements for tobacco at public places such as various waiting rooms, cinemas and theatres, conference halls and sports stadiums and gymnasiums is prohibited. Advertisements for tobacco must be marked with "smoking is harmful to your health". Article 19 The contents of advertisements for foods, alcohol drinks or cosmetics must comply with matters and items of hygiene license, and may not use medical jargons or words which are easily to be mixed up with pharmaceuticals.
Chapter III Advertising Activities Article 20 Advertisers, advertising operators and advertisement publishers shall sign written contracts according to law in their advertising activities, stipulating explicitly each party's rights and obligations. Article 21 No advertiser, advertising operator or advertisement publisher may engage in unfair competition of any form in their advertising activities. Article 22 An advertiser, in designing, producing or publishing advertisements either by itself or through committing others to promote the sales of commodities or to provide services shall comply with its business scope. Article 23 An advertiser shall, in commissioning to design, produce and publish advertisements, commission an advertising operator or advertisement publisher with legal
business status. Article 24 An advertiser shall, in designing, producing and publishing advertisements either by itself or through commissioning others, has or provide true, lawful and valid documentation as follows: 1. business license and other papers and documents proving production and operation qualification; 2. documents and papers issued by quality certification organs for the content of commodity quality to be advertised; 3. other documents and papers to confirm the truthfulness of the content of advertisement. Where, pursuant to the provisions of Article 34 of this Law, publishing of an advertisement is subject to examination by relevant administrative departments, relevant documents and papers of approval shall also be provided. Article 25 Any advertiser or advertising operator shall, if using the names or images of others in advertising, obtain in advance the written consent of others; and if using the names or images of persons with incapacity for civil actions or with limited capacity for civil actions, obtain in advance the written consent from their guardians. Article 26 Those engaging in the advertising business shall have the required professional and technical personnel and production equipment, and undergo company or advertising business registration in accordance with law, before they may engage themselves in advertising activities. The advertising business of radio stations, television stations, newspaper or magazine and periodical publishing units shall be handled by their own departments specializing in advertising business, and registration for concurrent advertising business shall be made according to law. Article 27 Advertising operators and advertisement publishers are to check relevant documentation and to examine and verify the contents of advertisements in accordance with laws and administrative regulations. With respect to an advertisement with untrue content or without the required complete documentation, any advertising operator may not provide services on designing, producing and serving as agent and any advertisement publisher may not publish such advertisement. Article 28 Advertising operators and advertisement publishers, according to relevant state regulations, are to establish and perfect the system on acceptance registration, examination and verification, and record management of their advertisement businesses. Article 29 Advertising charges shall be reasonable and open to the public, the charging standards and measures shall be registered with the administrative departments in charge of price and industry and commerce for record. Advertising operators and advertisement publishers shall make public their charging standards and measures. Article 30 Advertisement publishers shall provide true information on media coverage, audience rate and circulation to advertisers and advertising operators. Article 31 With respect to those commodities or services prohibited by laws and administrative regulations to be produced and manufactured, marketed or provided, and with respect to the commodities or services prohibited to be advertised, advertisements may not be designed, produced and published. Article 32 No outdoor advertisement may be erected or placed under any of the following circumstances: 1. using traffic safety facilities or traffic signs and marks; 2. affecting or interrupting the use of public utility facilities, traffic safety facilities or traffic signs and marks; 3. hindering the production or people's living or damaging the appearance or environment of cities; 4. within the construction control areas of state organs, cultural relics protection units or scenic sites; and 5. within the areas prohibited to erect or place outdoor advertisements by the people's governments at or above the county level. Article 33 The people's governments at or above the county level are, by organizing relevant departments such as advertising supervision and control, urban construction, environmental protection and public security, to work out planning and measures for the control of erecting and placing outdoor advertisements. Chapter IV Advertisement Examination Article 34 With respect to advertisements for such commodities as pharmaceuticals, medical apparatus and instruments, agricultural chemicals or veterinary drugs, which are published by means of radio, cinema pictures, television, newspaper, magazine, periodical and other media, and other advertisements which, as provided by laws and administrative regulations, shall be subject to examination, the relevant administrative departments (hereinafter referred to as the advertisement examination organ) must examine and inspect, prior to their issuance, the contents of the advertisements in accordance with the relevant laws and administrative regulations; any such advertisement which is not examined and approved may not be published. Article 35 An advertiser shall, when applying for advertisement examination, submit relevant documentation to the advertisement examination organ according to laws and administrative regulations. The advertisement examination organ shall, pursuant to laws and administrative regulations, make an examination decision. Article 36 No unit or individual may counterfeit, alter and transfer the document of advertisement examination decision.
Chapter V Legal Responsibility Article 37 Where, in violation of the provisions of this Law, false and deceiving publicity on commodity or service is made by using an advertisement, the advertising supervision and control organ shall order the advertiser to stop publishing the advertisement and to use the same amount of its advertising expenses to make open correction and to clear up influence within the same area, and impose the advertiser a fine of more than the amount of its advertising charges and less than five times the amount of its advertising charges; confiscate the advertising charges of the advertising operator responsible and advertisement publisher responsible and impose them a line of more than the amount of the advertising charges and less than five times the amount of the advertising charges; and if the case is serious, prevent them, according to law, from the advertising businesses. Where the act constitutes a crime, criminal responsibility shall be investigated according to law. Article 38 Where, in violation of the provisions of this Law, publishing of a false and deceiving advertisement cheats and misguides consumers, and thus causes infringement and damage to the lawful rights and interests of consumers who buy the commodity or accept the service, the advertiser shall bear civil responsibility according to law, the advertising operator and advertisement publisher, who know or are to know that the advertisement is untrue to facts but continue to design, produce and publish it, shall bear joint responsibility according to law. The advertising operator or advertisement publisher, who fails to provide the real name and address of the advertiser, shall bear complete civil responsibility. A social organization or other organizations, which recommends commodity or service to consumers in a false and deceiving advertisement and consequently causes infringement and damage to the lawful rights and interests of consumers, shall bear joint responsibility. Article 39 Where publishing of an advertisement violates the provisions of Article 7, Paragraph 2 of this Law, the advertising supervision and control organ shall order the advertiser, advertising operator and advertisement publisher, which are responsible to the advertisement, to stop publishing the advertisement and to make open corrections, confiscate their advertising charges, and impose a fine of more than the amount of the advertising charges and less than five times the amount of the advertising charges; and if the case is serious, prevent them, according to law, from the advertising businesses. Where the act constitutes a crime, criminal responsibility shall be investigated according to law. Article 40 Where publishing of an advertisement violates the provisions of Article 9 to Article 12 of this Law, the advertising supervision and control organ shall order the advertiser, advertising operator and advertisement publisher, which are responsible to the advertisement, to stop publishing the advertisement and to make open corrections, confiscate their advertising charges, and may impose a fine of more than the amount of the advertising charges and less than five times the amount of the advertising charges. Where publishing of an advertisement violates the provisions of Article 13 of this Law, the advertising supervision and control organ shall order the advertisement publisher to make correction, and impose a fine of more than 1,000 yuan and less
than 10,000 yuan. Article 41 Where, in violation of the provisions of Article 14 to Article 17 and Article 19 of this Law, an advertisement for pharmaceuticals, medical apparatus and instruments, agricultural chemicals, foods, alcoholic drinks or cosmetics is published, or, in violation of the provisions of Article 31 of this Law, an advertisement is published, the advertising supervision and control organ shall order the advertiser, advertising operator and advertisement publisher, which are responsible to the advertisement, to make corrections or to stop publishing the advertisement, confiscate their advertising charges, and may also impose a fine of more than the amount of the advertising charges and less than five times the amount of the advertising charges; and if the case is serious, prevent them, according to law, from the advertising businesses. Article 42 Where, in violation of the provisions of Article 18 of this Law, an advertisement for tobacco is published by means of radio, cinema pictures, television, newspaper, magazine or periodical, or an advertisement for tobacco is erected and placed in the public places and sites, the advertising supervision and control organ shall order the advertiser, advertising operator and advertisement publisher, which are responsible to the advertisement, to stop publishing the advertisement, confiscate their advertising charges, and may impose a fine of more than the amount of the advertising charges and less than five times the amount of the advertising charges. Article 43 Where, in violation of the provisions of Article 34 of this Law, publishing of an advertisement without examination and approval from the advertisement examination organ, the advertising supervision and control organ shall order the advertiser, advertising operator and advertisement publisher, which are responsible to the advertisement, to stop publishing the advertisement, confiscate their advertising charges, and impose a fine of more than the amount of the advertising charges and less than five times the amount of the advertising charges. Article 44 Where an advertiser furnishes false and deceiving documentation, the advertising supervision and control organ shall impose a fine of more than 10,000 yuan and less than 100,000 yuan. Where anyone counterfeits, alters or transfers documents of an advertisement examination decision, the advertising supervision and control organ shall confiscate its illegal gains and impose a fine of more than 10,000 yuan and less than 100,000 yuan. Where the act constitutes a crime, criminal responsibility shall be investigated according to law. Article 45 Where an advertisement examination organ has made an examination and approval decision for illegal content of an advertisement, the person directly in charge and other persons directly responsible shall be subject to administrative penalties imposed by their units, superior organs or administrative supervisory departments according to law. Article 46 Any person of an advertising supervision and control organ or advertisement examination organ, who neglects his or her duty, abuses his or her power of office or practises favoritism or other irregularities, shall be subject to administrative penalties. Where his or her act constitutes a crime, criminal responsibility shall be investigated according to law. Article 47 An advertiser, advertising operator or advertisement publisher, who, in violation of the provisions of this Law, commits any of the following right-infringing acts, shall bear civil responsibility according to law. 1. impairing in advertising the physical and mental health of the minors or the disabled; 2. palming off as a patent of others; 3. belittling commodities or services of other producers and manufacturers or operators; 4. using the names and images of others without consent in advertising; or
5. other infringements of the lawful civil rights
and interests of others. Article 48 A party concerned which disagrees with an administrative penalty decision may, within fifteen days from the date of receiving notice of the penalty decision, apply for a reconsideration to the next higher organ of the organ which makes the administrative penalty decision; the party may, within fifteen days from the date of receiving notice of the penalty decision, also directly file a suit in a people's court. The reconsideration organ shall, within sixty days from the date of receiving the application for reconsideration, make a reconsideration decision. A party concerned which disagrees with the reconsideration decision may, within fifteen days from the date of receiving the reconsideration decision, file a suit in a people's court. lf the reconsideration organ fails to make a reconsideration decision within the time limit for reconsideration, the party concerned may, within fifteen days from the expiration of the reconsideration, file a suit in a people's court. In the event of a party concerned failing both to apply for a reconsideration or to file a suit in a people's court within the time limit, and to comply with a penalty decision, the organ which makes the penalty decision may apply to a people's court for enforcement.
Chapter VI Supplementary Provisions Article 49 This Law shall come into force as of February 1, 1995. lf any content related to advertising in other laws and regulations formulated prior to the implementation of this Law is inconsistent with this Law, this Law shall prevail. |