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ADVERTISEMENT LAW OF THE PEOPLE'S REPUBLIC OF CHINA

 

  (Adopted at the 1 1Oth Meeting of the Standing Committee of the
Eighth National People's Congress on October 27, 1994,
promulgated by Order No.34 of the President of the
People's Republic of China on October 27, 1994, and
effective as of February 1, 1995)

 
 

SUBJECT: MEDIA; ADVERTISING

ISSUING-DEPT: STANDING COMMITTEE OF THE NATIONAL PEOPLE'S CONGRESS

ISSUE-DATE: 10/27/1994

IMPLEMENT-DATE: 02/01/1995

LENGTH: 3642 words

TEXT:

Contents
Chapter 1: General Provisions
Chapter 11: Norms for Advertisements
Chapter III: Advertising Activities
Chapter IV: Examination of Advertisements
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 sound development of the advertising business, protect the legitimate rights and interests of consumers, maintain the socioeconomic order, and enable advertisements to play a positive role in the socialist market economy.

Article 2: Advertisers, advertising agents and advertisement publishers engaged in advertising activities within the territory of the People's Republic of China shall abide by this Law.

The "advertisements" as used in this Law refer to commercial advertisements, for which a commodity producer or dealer or service provider pays, and by which the same, through certain media or forms, directly or indirectly introduces his commodities to be sold or services to be provided.

The "advertisers" as used in this Law refer to the legal persons, other economic organizations or individuals that, for the purpose of promoting the sale of commodities or providing services, design, produce and publish advertisements either by themselves or by commissioning others to do so.

The "advertising agents" as used in this Law refer to the legal persons, other economic organizations or individuals that on a commission basis provide advertisement designing and production services and agent service.

The "advertisement publishers" as used in this Law refer to the legal persons or other economic organizations that publish advertisements for advertisers or advertising agents commissioned by advertisers.

Article 3: An advertisement shall be factually true, lawful and in compliance with the requirements for socialist cultural and ideological development.

Article 4: An advertisement shall not contain any false information, and shall not cheat or mislead consumers.

Article 5: Advertisers, advertising agents and advertisement publishers shall, when engaged in advertising activities, abide by laws and administrative rules and regulations, and adhere to the principles of fairness, honesty and credibility.

Article 6: The administrative departments for industry and commerce of the people's governments at or above the county level shall be the supervisory and administrative organs for advertisements.

Chapter 11

Norms for Advertisements

Article 7: The contents of an advertisement shall be conducive to the physical and mental health of the people, shall promote the quality of commodities and services, protect the legitimate rights and interests of consumers, be in compliance with social morality and professional ethics, and safeguard the dignity and interests of the State.

An advertisement shall not employ or do any of the following things:

1. Use the National Flag, the National Emblem or the National Anthem of the People's Republic of China;

2. Use the names of State organs or their functionaries;

3. Use terms such as "State‑level," the "highest‑grade" or "the best";

4. Hinder social stability or endanger the safety of persons or property, or harm the public interest;

5. Hinder public order or violate sound social morals;

6. Contain information suggesting pornography, superstition, terror, violence or hideousness;

7. Contain information that engages in ethnic, racial, religious or sexual discrimination;

8. Hinder the protection of environment or natural resources; or

9. Other circumstances prohibited by laws or administrative rules and regulations.

Article 8: Advertisements shall not impair the physical and mental health of minors or disabled persons.

Article 9: Where there are statements in an advertisement concerning the performance, place of origin, use, quality, price, producer or manufacturer, term of validity and promise of a commodity, or concerning the items, forms, quality, price and promise of a service, they shall be clear and explicit.

Where there are statements in an advertisement about the additional presentation of gifts for the purpose of promoting the sale of commodities or providing services, the types and quantities of such gifts shall be clearly indicated.

Article 10: Data, statistical information, results of an investigation or survey, digests and quotations used in an advertisement shall be true to the facts and accurate, and their sources shall be indicated.

Article 11: Where an advertisement involves a patented product or patented process, it shall clearly indicate the number of the patent and the type of patent.

Where a patent right has not been obtained, an advertiser shall not state falsely in an advertisement that the patent right has been obtained.

It is prohibited to use a patent application for which the patent right has not been granted or to use a terminated, nullified or invalid patent in an advertisement.

Article 12: An advertisement shall not belittle the commodities of other producers and dealers or the services of other providers.

Article 13: An advertisement shall be distinguishable and shall enable consumers to identify it as such.

The mass media shall not publish advertisements in the form of a news report. Advertisements published in the mass media shall include features that differentiate them from non-advertisements, and these advertisements may not mislead consumers.

Article 14: An advertisement for pharmaceuticals and medical equipment and instruments shall not include the following:

1. Unscientific affirmations or guarantees of efficacy;

2. Indications of rates of cure or efficacy;

3. A comparison of efficacy and safety with those of other pharmaceuticals or medical equipment and instruments;

4. Using the name or image of a medical research institution, academic organization, medical institution or of an expert, a doctor or a patient as proof; or

5. Other information prohibited by laws or administrative rules and regulations.

Article 15: An advertisement for pharmaceuticals must be based on the directions approved by the administrative department of public health under the State Council or the administrative departments of public health of provinces, autonomous regions or municipalities directly under the central government.

An advertisement for therapeutic pharmaceuticals to be used on a doctor's recommendation as prescribed by the State must be marked with the words "purchase and use on a doctor's prescription".

Article 16: Special pharmaceuticals such as narcotics, psychotropic substances, toxic drugs and radioactive drugs shall not be advertised.

Article 17: An advertisement for agricultural pesticides shall not contain the following:

1. Absolute affirmations indicating their safety, such as being non‑toxic or non‑harmful;

2. Unscientific affirmations or guarantees of their efficacy;

3. Written or spoken language or pictures that violate rules on the safe use of agricultural pesticides; or

4. Other information prohibited by laws or administrative rules and regulations.

Article 18: It is prohibited to publicize advertisements for tobacco using radio stations, motion pictures, TV programs, newspapers or periodicals.

It is prohibited to put up advertisements for tobacco in any type of waiting room, cinema, theater, conference hall, stadium and gymnasium or any other similar public place.

Advertisements for tobacco must include the statement, "Smoking is harmful to your health

Article 19: An advertisement for foods, alcoholic beverages or cosmetics must meet requirements for public health, and it shall not employ medical jargon or terms liable to cause persons to mistake these products for pharmaceuticals.

Chapter III

Advertising Activities

Article 20: Advertisers, advertising agents and advertisement publishers shall, in their advertising activities, conclude written contracts according to the law defining the rights and obligations of the respective parties.

Article 21: Advertisers, advertising agents and advertisement publishers may not engage in unfair competition of any type in their advertising activities.

Article 22: In an advertisement designed, produced and published by the advertiser itself or by others on a commission basis, the sale of commodities being promoted or the services provided shall conform to the business scope of the advertiser.

Article 23: An advertiser shall, in designing, producing and publishing advertisements on a commission basis, commission advertising agents or advertisement publishers having lawful qualifications for such business.

Article 24: An advertiser shall, in designing, producing and publishing advertisements by itself or by others on a commission basis, possess or provide the following true, lawful and valid supporting documents:

1. A business license and other documents certifying the qualifications of production and operation;

2. Documents issued by a quality‑inspection institution for matters relating to the quality of commodities being advertised; and

3. Other documents confirming the truthfulness of the contents of the advertisement.

Where the publication of an advertisement is subject to examination by the competent administrative departments as provided by Article 34 of this Law, the relevant documents of approval shall also be provided.

Article 25: If an advertiser or advertising agent is to use the names or images of others in advertisements, it shall obtain in advance written consent from them; and in the case of persons with no civil standing or with limited capacity for civil standing, it shall obtain in advance a written consent from their guardians.

Article 26: Anyone who is to engage in the advertising business shall have the necessary professional and technical personnel and production equipment and undergo the registration procedures for a company or advertising business in accordance with the law, before he may engage in advertising activities.

The advertising business of radio stations, television stations, and publishers of newspapers and periodicals shall be conducted by their departments specializing in the advertising trade; and registration for concurrent advertising business shall be made according to the law.

Article 27: An advertising agent or an advertisement publisher shall check relevant supporting documents, and shall verify the contents of advertisements in accordance with laws, administrative rules and regulations. If an advertisement contains untrue information or is accompanied by incomplete documents, the advertising agent may not provide design, production or agent service, and the advertisement publisher may not publish such an advertisement.

Article 28: An advertising agent or an advertisement publisher shall, in accordance with the relevant provisions of the State, establish and perfect a system of acceptance registration, examination and verification, and records management for its advertising business.

Article 29: Advertising rates shall be reasonable and open to the public, and the rates and measures for the collection thereof shall be reported to price‑control authorities and to the administrative departments for industry and commerce for the record.

An advertising agent or an advertisement publisher shall make public its rates and measures for the collection thereof.

Article 30: An advertisement publisher shall provide true information on such data as media coverage, audience ratings and circulation to advertisers and advertising agents.

Article 31: No advertisement shall be designed, produced and published for commodities or services prohibited from being produced and sold or provided, and for commodities or services prohibited from being advertised, by laws or administrative rules and regulations.

Article 32: No outdoor advertisements shall be put up under any of the following circumstances ‑ those that:

1. Use traffic‑safety facilities or traffic signs or markers;

2. Impair the use of municipal public utilities, traffic‑safety facilities or traffic signs or markers;

3. Hinder production or people's lives, or that damage cities' appearance or environment;

4. Within the construction‑control areas of State organs, institutions of cultural‑relics protection or places of historical interest or scenic sports; or

5. Within areas where the placement of outdoor advertisements is prohibited by the local people's governments at or above the county level.

Article 33: The local people's governments at or above the county level shall organize relevant departments such as departments of advertising supervision and control, urban construction, environmental protection and public security to formulate plans for the placement of outdoor advertisements and measures for their control.

Chapter IV

Examination of Advertisements

Article 34: With respect to advertisements for products such as pharmaceuticals, medical equipment and instruments, agricultural pesticides or veterinary drugs to be publicized by radio stations, motion pictures, TV programs, newspapers, periodicals or other media, and other advertisements subject to examination as provided by laws or administrative rules and regulations, the competent administrative departments (hereinafter referred to as the advertisement‑examination organ) shall, prior to their publication, examine the contents of such advertisement in accordance with the relevant provisions of the laws or administrative rules and regulations. If such an examination is not carried out, such advertisements shall not be published.

Article 35: If an advertiser applies for its advertisement to be reviewed, the advertiser shall submit the relevant supporting documents to the advertisement‑examination organ according to the laws or administrative rules and regulations. The advertisement‑examination organ shall, in accordance with the laws or administrative rules and regulations, make a decision following the review.

Article 36: No unit or individual may counterfeit, alter or transfer the document of a decision on the examination of an advertisement.

Chapter V

Legal Responsibility

Article 37: Where, in violation of the provisions of this Law, false propaganda for commodities or services has been carried out by making use of advertisements, the organ in charge of advertising supervision and control shall order the advertiser to stop publishing the advertisements and to use an amount equal to the advertising fee received to make public corrections within the corresponding areas, thus eliminating the effects, and the organ shall impose on the advertiser a fine of not less than the amount of its advertising fee received but not more than five times that amount; the advertising agent and advertisement publisher who are held responsible shall have their fees for advertising be confiscated and shall also have imposed on them a fine not less than the amount of the advertising fees and not more than five times that amount; and, if the circumstances are serious, the advertising business of such offenders shall be stopped according to the law. If the case constitutes a crime, the offenders shall be investigated for criminal responsibility according to the law.

Article 38: Where, in violation of the provisions of this Law, false advertisements have been published to cheat and mislead consumers, thus infringing on the lawful rights and interests of consumers who have bought the commodity or accepted the service, the advertiser shall bear civil liabilities according to the law; if an advertising agent or advertisement publisher, who knows clearly or ought to know that the advertisement is false, still designs, produces and publishes the advertisement, it shall bear joint and several liability according to the law.

Where an advertising agent or advertisement publisher fails to provide the real name and address of the advertiser, it shall bear complete civil liability. Where social organizations or other organizations have recommended commodities or services to consumers in false advertisements, thus infringing on the lawful rights and interests of consumers, they shall bear joint and several liability according to the law.

Article 39: Where an advertisement is published in violation of the provisions of paragraph 2 of Article 7 of this Law, the organ in charge of advertising supervision and control shall order the advertiser, advertising agent and advertisement publisher who are held responsible to stop publishing the advertisement and to make public corrections, the organ shall confiscate their advertising fees and shall also impose a fine thereon of not less than the amount of the advertising fees but not more than five times that amount; if the circumstances are serious, their advertising business shall be stopped according to the law. If the case constitutes a crime, the offenders shall be investigated for criminal responsibility according to the law.

Article 40: Where an advertisement is published in violation of the provisions of Articles 9 to 12 of this Law, the organ in charge of advertising supervision and control shall order the advertiser, advertising agent and advertisement publisher who are held responsible to stop publishing the advertisement and to make public corrections, shall confiscate their advertising fees, and may also impose a fine thereon of not less than the amount of the advertising fees but not more than five times that amount.

Where an advertisement is published in violation of the provisions of Article 13 of this Law, the organ in charge of advertising supervision and control shall order the advertisement publisher to make corrections and shall impose a fine thereon of not less than RMB 1,000 (US$121) but not more than RMB 10,000.

Article 41: Where, in violation of the provisions of Articles 14 to 17 or of Article 19 of this law, an advertisement for pharmaceuticals, medical equipment and instruments, agricultural pesticides, foods, alcoholic beverages or cosmetics is published, or an advertisement is published in violation of the provisions of Article 31 of this Law, the organ in charge of advertising supervision and control shall order the advertiser, advertising agent and advertisement publisher who are held responsible to make corrections or to stop publishing the advertisement, shall confiscate their advertising fee, and may also impose a fine thereon of not less than the amount of the advertising fee but not more than five times that amount; and if the circumstances are serious, their advertising business shall be stopped according to the law.

Article 42: Where, in violation of the provisions of Article 18 of this Law, an advertisement for tobacco is carried by radio stations, motion pictures, TV programs, newspapers or periodicals, or an advertisement for tobacco is put up in public places, the organ in charge of advertising supervision and control shall order the advertiser, advertising agent and advertisement publisher who are held responsible to stop publicizing the advertisement, shall confiscate their advertising fee, and may also impose a fine thereon of not less than the amount of the advertising fee but not more than five times that amount.

Article 43: Where, in violation of the provisions of Article 34 of this Law, an advertisement is published without the review and approval of the advertisement‑examination organ, the organ in charge of advertising supervision and control shall order the advertiser, advertising agent and advertisement publisher who are held responsible to stop publicizing the advertisement, shall confiscate their advertising fee, and also impose a fine thereon of not less than the amount of the advertising fee but not more than five times that amount.

Article 44: Where an advertiser provides false supporting documents, the organ in charge of advertising supervision and control shall impose a fine thereon of not less than RMB 10,000 but not more than RMB 100,000.

Where anyone counterfeits, alters or transfers a document reflecting the decision of an advertisement review, the organ in charge of advertising supervision and control shall confiscate from him the illegal gains and also impose a fine thereon of not less than RMB 10,000 but not more than RMB 100,000. If the case constitutes a crime, the offender shall be investigated for criminal responsibility according to the law.

Article 45: Where an advertisement‑examination organ decides, after a review, to approve the illegal contents of an advertisements, the person in charge and other persons who are held directly responsible shall be subject to administrative sanctions imposed according to the law by the unit they belong to, their superior organs or the administrative supervisory department.

Article 46: Where any functionary of an organ in charge of advertising supervision and control or of an advertisement‑examination organ neglects his duty, abuses his power or practices favoritism or other irregularities, he shall be subject to administrative sanctions. If the case constitutes a crime, the offender shall be investigated for criminal responsibility according to the law.

Article 47: If an advertiser, advertising agent or advertisement publisher commits any of the following acts of infringement in violation of the provisions of this Law, it shall bear civil liability according to the law:

1. Impairing the physical and mental health of a minor or a disabled person through an advertisement;

2. Passing himself off as the owner of another's patent;

3. Belittling the commodities or services of other producers or dealers;

4. Using the name or image of another person in an advertisement without his permission; or

5. Other acts of infringement on the lawful civil rights and interests of another person.

Article 48: Where a party refuses to accept the decision concerning an administrative sanction, the party may, within 15 days from the date of receiving the notice of the decision on punishment, apply for reconsideration to the organ one level above the organ that made the decision on punishment; the party also may, within 15 days from the date of receiving the notice of the decision on punishment, directly file a suit with a people's court.

The reconsideration organ shall, within 60 days from the date of receiving the application for reconsideration, make a decision on the reconsideration. Where a party is not satisfied with the reconsideration decision, the party may, within 15 days from the date of receiving the reconsideration decision, file a suit with a people's court. Where the reconsideration organ fails to make a reconsideration decision within the time limit for reconsideration, the party concerned may, within 15 days from the date of the expiration of the time limit for reconsideration, file a suit with a people's court.

Where a party has neither applied for reconsideration nor filed a suit with a people's court within the time limit, nor complied with the decision on punishment, the organ that made the decision on punishment may apply to a people's court for the compulsory execution of the decision.

Chapter VI

Supplementary Provisions

Article 49: This Law shall go into effect as of February 1, 1995. If any content of other laws and regulations on advertisements formulated prior to the implementation of this Law is inconsistent with the provisions of this Law, this Law shall prevail.