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Some Case Studies Examining Food Advertisements Violating China’s advertising Law

Fabricated or fraudulent advertising content including misleading information, illegal function claims etc. are major problems according to data released by SAMR.

According to SAMR, 8104 Internet ads were found to be illegitimate in the first half of 2018, and use of illegal function claims was one of the most frequent violations. Article 9, 17, 18, 28 and 38 of China Advertising Law are rules frequently violated. The following are selected stories and translation of these provisions.

Spotlight Stories

Ø Advertisement of the functional effects of a beer yeast product manufactured by Shanghai Shgenon Company which purports to lower blood sugar were highlighted. The advertisement used terminology only allowed to be used on pharmaceuticals, it also violated health food registration requirements and lacked clinical evidence substantiating the claims. (see article 17, 18, 28)
Ø A WeChat retailer, selling a health food product indicating the claim of “cure cervical spondylitis” without addition of the note of “the product is not a substitute for medicine”. (see article 18)
Ø A Shanghai-based ecommerce firm fabricated clinical efficacy data about their “VeryALgae 5S”. (see article 28)
Ø The A2 Milk Trade (Shanghai) Company invited an actress and her son (under the age of 10) to endorse their milk powder products in its ads. (see article 38)
Ø Fujian Qinghua Tea Co., Ltd used a Chinese map that failed to reveal all the territory of China. (see article 9)
Ø A Guangxi-based service company guaranteed the effect and safety of health food products. (see article 18)

Requirements of Advertising Law

Article 9: An advertisement shall be prohibited from: (1) using, or using in a disguised form, the national flag, national anthem, national emblem, military flag, military song, or military emblem of the People's Republic of China; (2) using, or using in a disguised form, the name or image of any state authority or its staff member; (3) using “national,” “highest,” “best,” or similar words; (4) damaging the dignity or interest of the state or divulging any state secret; (5) disturbing social stability or damaging the public interest; (6) damaging personal or property safety or divulging individual privacy; (7) disturbing the public order or departing from a good social climate; (8) containing any obscene, pornographic, gambling, superstitious, horrible, or violent content; (9) containing any ethnically, racially, religiously, or sexually discriminatory content; (10) impeding the protection of environment, natural resources, or cultural heritages; or (11) falling under any other circumstances as set out by any law or administrative regulation.
Article 17: Advertisements except those on medical services, drugs, and medical instruments shall not involve disease treatment functions, nor use medical terms or terms that may result in confusion between the marketed goods and any drugs or medical instruments.
Article 18: Advertisements on functional nutraceutical food shall not contain: (1) any assertion or assurance on efficacy or safety; (2) any statement involving disease prevention or treatment functions; (3) any claim or implicit indication that the advertised good is a necessary for maintaining health; (4) any comparison with drugs or any other functional nutraceutical foods; (5) any recommendation or certification by an endorser; or (6) any other information prohibited by any law or administrative regulation.
An advertisement on a functional nutraceutical food shall conspicuously indicate: “This product is not a substitute for drugs.”
Article 28: Any advertisement that defrauds or misleads consumers with any false or misleading content shall be a false advertisement. An advertisement that falls under any of the following circumstances shall be a false advertisement: (1) The advertised good or service does not exist. (2) Regarding the good's performance, functions, place of production, uses, quality, specification, ingredient, price, producer, term of validity, sales condition, and honors received, among others, or the service's contents, provider, form, quality, price, sales condition, and honors received, among others, or any commitments, among others, made on the good or service, there is any inconsistency with the actual circumstances, which has a material impact on purchases. (3) Any scientific research result, statistical data, investigation result, excerpt, quotation, or other information which is fabricated or forged or cannot be validated has been used as a certification material. (4) The results of using the good or receiving the service are fabricated. (5) Consumers are defrauded or misled with any false or misleading content in other ways.
Article 38: An endorser shall, based on facts, recommend or certify goods and services in advertisements in accordance with this Law and the relevant laws and administrative regulations, and shall not recommend or certify any good that has not been used or service that has not been received by the endorser. A minor under the age of ten shall not serve as an endorser. Where an administrative penalty is imposed on a natural person, a legal person, or any other organization for recommendation or certification in a false advertisement, if it has not been three years since the imposition of the penalty, the natural person, legal person, or other organization shall not serve as an endorser.


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