-
How is harmful and offensive advertising regulated? [For example, advertising content that may be obscene, blasphemous, offensive to public morals or decency, or offensive to protected minorities or characteristics?]
According to the provisions of the Advertising Law and the advertising law enforcement practices of competent authorities, harmful and offensive advertising is a very broad concept. Advertisements containing the following information will be deemed as harmful and offensive advertising:
- any information suggesting obscenity, pornography, gambling, superstition, terror or violence;
- any information of ethnic, racial, religious or gender discrimination;
- any information hindering the protection of the environment, natural resources or cultural heritage;
- any information damaging the physical and mental health of minors and disabled people;
- any information hampering the social public order or going against good social practice;
- any information damaging personal or property safety, or revealing personal privacy;
- any information damaging the dignity or interest of the State, or revealing state secrets; and
- any information hindering social stability or damaging social public interest.
It is prohibited to produce or publish harmful and offensive advertising, otherwise it may result in penalties from competent authorities.
-
How is unfair and misleading advertising regulated? [Briefly describe the law and regulation applying to unfair and misleading advertising in your jurisdiction. Cover any specific unfair or misleading practices that are prohibited, as well as the general category of misleading advertising]
The Advertising Law provides specific regulations on unfair and misleading advertising. For example, Article 4 stipulates that an advertisement shall not contain any false or misleading information and shall not deceive or mislead consumers; Article 28 stipulates that any advertisement that deceives or misleads consumers with any false or misleading information shall constitute a false advertisement. An advertisement that falls under any of the following circumstances shall be a false advertisement: (i) the advertised good or service does not exist; (ii) regarding the goods’ performance, function, origin, 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 goods or service, there is any inconsistency with the actual situation, which has a material impact on the purchase behavior; (iii) any scientific research result, statistical data, investigation result, excerpt, citation, or other information which is fabricated or forged or cannot be validated has been used as a certification material; (iv) the results of using the goods or receiving the service are fabricated; and (v) other event in which consumers are otherwise deceived or misled with any false or misleading information. Once an advertisement is identified as false, competent authority will impose penalties on relevant advertisers, advertising agents, and/or advertisement publishers according to the above regulations, and sometimes even hold endorsers accountable.
In addition to relevant provisions of the Advertising Law, the Anti-Unfair Competition Law also includes provisions for false advertising. Article 8 of the law stipulates that a business operator shall not make any false or misleading commercial publicity in respect of the performance, functions, quality, sales condition, users’ comments, or honors received of its goods, in order to deceive or mislead consumers. A business operator shall not help other business operators conduct any false or misleading commercial publicity by organizing false transactions or any other means.
According to the current law enforcement practice, competent authorities tends to apply the Advertising Law directly to punish false publicity behaviors when they constitute advertising. However, when the nature of false publicity at issue is unclear or disputable, the competent authority, instead, would like to apply the Anti-Unfair Competition Law to punish the same.
-
Do any specific rules restrict advertising for the following product sectors? If so, how? a. Alcohol b. Tobacco and related products, such as vapes and nicotine pouches c. Medicines, medical devices and surgical or medical procedures d. High fat, salt and sugar foods e. Gaming and gambling services f. Adult and sex-related services
The Advertising Law explicitly prohibits gambling advertising, and at the same time restricts advertising for alcohol, tobacco, medicines/medical devices/medical services. The details read as follows:
a. Advertisements on alcohol shall not contain: (i) any drinking inducement or instigation or immoderate drinking; (ii) any description of an act of drinking; (iii) any description of driving cars, vessel, or airplanes, among others; and (iv) any explicit or implicit indication that drinking relieves tension and anxiety, increases physical strength or has any other efficacy. In addition, it is forbidden to publish advertisements for alcohol through internet media for minors, including but not limited to websites, web pages, Internet application programs and we-media.
b. Advertisements on tobacco is generally prohibited in China. The Advertising Law explicitly prohibits the publication of tobacco advertisements on mass media, in public places, on public means of transportation, or outdoors. However, it should be noted that electronic cigarettes have not yet been explicitly classified as tobacco products, and it is still controversial whether electronic cigarette advertisements can be published through mass media. The Measures for the Administration of Internet Advertising that came into effect on May 1, 2023 explicitly prohibit to publish tobacco (including electronic cigarettes) advertisements through internet. Based on the principle of inherent consistency of legislation, it can be seen that electronic cigarette advertising should also be prohibited in media other than the Internet.
c. In China, pre-approval system is implemented for medicines, medical devices, and medical service advertisements. Before publishing such advertisements, approval issued by competent authorities shall be obtained in advance, otherwise it is not allowed to be published. Meanwhile, the Advertising Law and regulatory documents issued by competent authorities impose numerous restrictions on medicines, medical devices, and medical service advertisements, including but not limited to: (i) any assertion or assurance on efficacy or safety; (ii) any statement on cure rate or effective rate; (iii) any comparison with other drugs or medical instruments in efficacy and safety or comparison with other medical institutions; (iv) any recommendation or certification by an endorser; (v) using the name or image of the diseased, health technical personnel, medical education and scientific research institutions and their personnel, as well as other social group or organization for certification; (vi) any claim or implicit indication of functions to treat all diseases, adapt to all symptoms, or apply to all groups of people, or of necessity for normal life and treatment of diseases, or other contents, which violates scientific rules; (vii) any information which may cause the public to have unnecessary worries about and fears for their health conditions and diseases, or to misunderstand that non-use of such product will lead to a certain disease or deterioration of any disease; and (viii) containing inductive expressions such as “hot product, shopping rush, on trial”, “necessity for a family, free treatment, free product”, comprehensive comments such as “appraisal, ranking, recommendation, designation, selection, and award”, or guarantee contents such as “refunds for invalidity, insured by an insurance company” so as to instigate consumers to arbitrarily or excessively use the drug, dietary supplement or food for special medical purpose. In addition, in order to protect minors, it is not allowed to publish advertisements for medicines, medical devices and medical services (including beauty treatment) through internet media for minors, including without limitation websites, web pages, Internet application programs and we-media.
d. There are no special restrictions or regulatory requirements for high fat, salt, and sugar foods advertising, provided that the content of such advertising complies with the general provisions of the Advertising Law, for example, to be authentic and lawful, presenting advertising content in a sound form of expression.
e. Gambling services are explicitly prohibited in Chinese law, so it is not allowed to produce or publish any advertisements related to gambling. There are no special restrictions or regulatory requirements for gaming service advertising, provided that the content of such advertising complies with the general provisions of the Advertising Law. Online gaming advertisements not appropriate for the physical and mental health of minors shall not be published on internet media for minors, including but not limited to websites, web pages, Internet application programs and we-media.
f. Adults and sex-related products advertising, though not explicitly prohibited, can be easily identified to contain information suggesting obscenity, pornography, or vulgarity, and forbidden to bepunished. It is a type of advertising with a high risk of violation.
-
Do any specific rules apply to advertising featuring prices?
The Advertising Law does not provide any special regulations for featuring prices, provided that advertising contents are accurate, explicit, and clear. However, the Price Law and the Provisions on Clearly Marking Prices and Prohibiting Price Frauds issued by the State Administration for Market Regulation have detailed requirements for prices. Article 13, Paragraph 2 of the Price Law stipulates that business operators must not sell goods at prices above the marked price or collect fees not specified. Article 16 of the Provisions on Clearly Marking Prices and Prohibiting Price Frauds stipulates that if business operators make a price comparison when selling products or providing services, the information of the price which is used as the compared price shall be authentic and accurate. If business operators fail to provide specific information on the compared price, the compared price shall not be higher than the lowest transaction price of the business operator within seven days before the price comparison on the same business premises; if there is no transaction within seven days, it should not be higher than the price of the last transaction before the price comparison. If the price is compared with the retail price suggested by the manufacturer, it should be clearly indicated that the compared price is the retail price suggested by the manufacturer. When there is a change in the retail price suggested by the manufacturer, it should be immediately updated; Article 17 stipulates that without any justification, business operators shall not raise the marked price significantly on a temporary basis in advance in order to use it as the calculation benchmark for purpose of discount or reduction in price. Business operators shall not use unfounded or incommensurable prices as the calculation benchmark for discount or reduction, or as the price to be compared.
-
Do any specific rules apply to the use of testimonials and endorsements in advertising?
The Advertising Law does not provide specific regulations for the use of testimonials and endorsements in advertisements. However, advertising contents shall meet general requirements such as authenticity and legality, and shall not contain prohibited contents (such as absolute language). In addition, advertisements for the following categories are subject to explicit restrictions on testimonials and endorsements: (i) advertisements on pesticides, veterinary drugs, feeds or feed additives shall not contain any recommendations or certification in the name or image of any scientific research entity, academic institution, technical promotion institution, industry associations, professional, or user; (ii) advertisements on education or training shall not contain any recommendations or certification in the name or image of any scientific research entity, academic institution, education institution, industry associations, professional, or beneficiary; and (iii) advertisements on goods or services to provide business opportunities or any other expectation of investment return shall not any contain any recommendations or certification in the name or image of any academic research entity, industry associations, professional, or beneficiary; (4) advertisements for crop seeds, tree seeds, grass seeds, breeding livestock and poultry, aquatic fries and fingerlings, planting and breeding shall not contain any recommendations or certification in the name or image of any scientific research entity, academic institution, technical promotion institution, industry associations, professional, or beneficiary.
-
Do any specific rules apply to environmental or “green” advertising claims?
At present, there is no specific regulation on environmental or “green” advertising, and this type of advertising shall be subject to the general rules of the Advertising Law for adjustment. If an advertisement claims a product to have any function of environmental protection or energy conservation without factual support, competent authorities could identify it as a false advertisement.
-
What rules apply to the identification of advertising content – for example, distinguishing advertorial from editorial?
The main criterion for distinguishing advertorial from editorial is whether it promotes, directly or indirectly, the goods or services. It is easy to identify direct promotion of goods or services but difficult to identify indirect promotion of goods or services in many cases. The identification of “soft advertising” has always been a challenge in advertising law enforcement.
As it is shown in previous law enforcement practices, the following contents are usually identified as editorial: (i) information that is required by laws and regulations to be clearly disclosed to consumers by goods operators or service providers, such as product name, origin, specification, grade, pricing unit, price, main ingredients, production date, expiration date, inspection certificates, instructions for use, after-sales service or service items, specifications, charging standards, and other information provided in accordance with the Price Law, E-Commerce Law, Law on the Protection of Consumer Rights and Interests, etc.; (ii) contents provided for a comprehensive and accurate description of goods/services or transaction conditions, such as information on the performance, function, gifts, purpose, quality, producer, promises, restrictions, precautions, among others, of the goods or information on the content, provider, form, quality, among others, of the service in the advertisement; and (iii) reminders of advertisements or standard national/industry/regional signs, for example, the Advertising Law stipulates that an advertisement on a dietary supplement shall conspicuously indicate “this product is not a substitute for drugs”.
-
How is influencer/brand ambassador advertising regulated?
Influencers and brand ambassadors are collectively referred to as “endorsers” in the Advertising Law. The Advertising Law provides many regulations for endorsers, mainly involving four aspects including age limits, goods prohibited from endorsement, obligations and responsibilities: (i) age limits: a minor under the age of 10 shall not be an endorser; (ii) goods prohibited from endorsement: according to the provisions of the Advertising Law and its relevant regulations, no recommendation or certification by an endorser is allowed for advertisements for medical services, drugs, dietary supplements, medical instruments, or food for special medical purpose, tobacco and tobacco products (including electronic cigarettes), and off campus training; (iii) obligations: when providing any recommendation or certification for goods or services in advertisements, endorsers shall refer to facts, comply with relevant laws and administrative regulations, and shall not recommend or certify for goods or services that they have not used; and (iv) responsibilities: when false advertising causes damage to consumers, if the endorser knows or should have known that the advertisement is false and still makes recommendations or certificates, they shall bear joint and several liability with the advertiser; a natural person, legal person, or other organization that received administrative penalty for recommending or certifying in false advertisements in the last three years shall not be appointed as endorser; if false advertisements for goods or services affect the life and health of consumers and cause damage to consumers, the endorser shall bear joint and several liability with the advertiser.
-
Are any advertising methods prohibited or restricted? [For example, product placement and subliminal advertising]
No, the Advertising Law does not provide specific regulations on advertising methods. Neither product placement nor subliminal advertising is explicitly prohibited by law. However, Article 14 of the Advertising Law stipulates that “an advertisement shall be identifiable so that consumers could identify it as an advertisement”. At present, the method to indicate product placement and subliminal advertising is still under exploration.
-
Are there different rules for different advertising media, such as online, broadcast, non-broadcast etc?
No, all advertising activities, online or offline, are governed by the Advertising Law. With the rise of internet advertising, online advertising has become the main form of advertising. The State Administration for Market Regulation then has formulated and issued the Measures for the Administration of Internet Advertising, which is only a further specification of the Advertising Law in the field of the internet advertising, with its system, spirit, and contents consistent with the Advertising Law.
-
Are there specific rules for direct marketing such as email, SMS and direct mail?
The Advertising Law provides restrictions for direct marketing. Article 43 of the Advertising Law stipulates that no organization or individual shall distribute advertising to a person’s housing or means of transport, among others, without his or her consent or request, or through electronic means. If an advertisement is sent electronically, the true identity and contact information of the sender should be explicitly stated, and the receiver be provided with option of rejecting receipt of such advertising.
In addition, other laws and regulations also provides restrictions for direct marketing: (i) Article 1033 of the Civil Code stipulates that “unless otherwise provided by law or expressly consented to by the right holder, no organization or individual shall intrude upon another person’s private life through making phone calls, sending text messages, using instant messaging tools, sending e-mails and flyers, and the like means”; and (ii) The Provisions on the Administration of Communications Short Message Services issued by the Ministry of Industry and Information Technology of the People’s Republic of China stipulate that SMS providers and short message content providers shall not send commercial messages to users without their consent or request. SMS providers and short message content providers shall provide users with a convenient and effective method to reject to receive commercial short message and inform them of the method along with the short message. They shall not set barriers to users’ rejection to receive short messages in any form.
-
Is advertising to children and young people restricted beyond general law and regulation? If so, how?
Yes. The Advertising Law, the Law on the Protection of Minors, and related normative documents provide stricter protection for minors, with higher requirements in terms of advertising content, form, and media, mainly including:
- Article 10 of the Advertising Law stipulates that advertisements shall not damage the physical and mental health of the minors and the disabled;
- Article 22 of the Advertising Law stipulates that it shall be prohibited to send any form of tobacco advertisement to minors;
- Article 39 of the Advertising Law stipulates that no advertising activity should be conducted in kindergarten, primary and middle schools, and no overt or covert advertising should be published in textbook, supplementary material, exercise book, stationery, teaching aids, school uniform and school bus, among others, of kindergarten, primary and middle school students, except public interest advertisement;
- Article 38 of the Advertising Law stipulates a minor under the age of 10 shall not be used as endorser;
- Article 40 of the Advertising Law stipulates that no advertisements on medical services, drugs, dietary supplements, medical instruments, cosmetic, alcohol and beauty treatment and advertisement for Internet game not appropriate for the physical and mental health of minors should be published in mass media aimed at minors; advertising for goods or service aimed at minors under the age of 14 should not include the following information: persuading or seducing the minor to ask their parents to purchase the goods or service being advertised; or that may cause them to imitate unsafe behavior; and
- Article 74 of the Law on the Protection of Minors stipulates that online education network products and services for minors shall not insert online game links, push advertisements and other information irrelevant to teaching.
-
How is comparative advertising regulated?
The Advertising Law does not provide prohibitions for comparative advertising. Comparative advertising can be published provided that it presents authentic and lawful contents in sound form of expression. However, it should be noted that comparative advertising is not allowed for medical services (including beauty treatment), drugs, medical devices, and dietary supplements.
Comparative advertising is relatively rare in industry practice mainly because it can be easily identified as defaming the goodwill of others or constituting other unfair competition behaviors. With the complicated comparability of compared goods, methods and standards of comparison, comparative advertising can easily be identified as not comprehensive and objective.
-
Are consumer promotions specifically regulated as advertising (as distinct from contract law)? If so, how?
No, consumer promotions are usually considered as “invitation for offer” under contract law rather than advertisements. In this case, consumer promotions are subject to contract law for governance and adjustment, and also regulated by the Law on the Protection of Consumer Rights and Interests.
-
Are there specific rules on promotional prize draws and skill competitions? If incorrectly executed, can these be classed as illegal lotteries? If so, what are the possible consequences?
The Anti-Unfair Competition Law includes specific provisions on promotion prize draws. Article 10 stipulates that business operators shall not conduct the following: (i) the information on the type of prizes, conditions for claiming prizes, amount of a prize, or prizes, among others, is ambiguous, affecting a claim for a prize; (ii) offering non-existent prizes or intentionally pre-determining prizewinners; and (iii) in case of prize draws the amount of the top prize exceeds RMB50,000. There is currently no specific provision in Chinese law for promotional skill competitions.
Promotional price draws and skill competitions, if abused, may be identified as gambling. Once identified as gambling, it can constitute a violation of public security administration or a crime, which will be subject to punishment according to the specific harmfulness of the behavior to society. Article 70 of the Public Security Administration Punishments Law stipulates that a person who provides conditions for gambling for the purpose of making profits, or participates in gambling with a relatively big amount of money, shall be detained for not more than five days or be fined not more than RMB500; and if the circumstances are serious, he/she shall be detained for not less than 10 days but not more than 15 days and shall, in addition, be fined not less than RMB500 but not more than RMB3,000. There are two charges related to gambling in the Criminal Law, one is the crime of gambling and the other is the crime of running a gambling house. The crime of gambling refers to those who gather people to engage in gambling or make gambling his profession for the purpose of profit. Those convicted of gambling crimes shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and shall also be fined. Those convicted of the crime of running a gambling house shall be sentenced to fixed-term imprisonment of not more than five years, criminal detention or public surveillance, and shall also be fined; if the circumstances are serious, he/she shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years and shall also be fined.
-
Must promotional prize competitions be registered with a state agency or authority? [If so, briefly explain the process, typical time from application to approval, and any costs]
No, registration, filing at, or approval by a state agency or authority are not required for promotional prize competitions organized or conducted, provided that they meet general legal requirements, including but not limited to having explicit rules, prize information and prize-winning conditions, as well as free of fraudulent behavior in the activity.
-
What is the relationship between IP law and advertising law? [For example, can IP law provide an alternative enforcement mechanism in addition or alternatively to advertising-specific law and regulation?]
In China, advertising law belongs to public law, and its main function is to regulate advertising activities, promote the sound development of the advertising industry, and protect the lawful rights and interests of consumers; while IP laws such as trademark law, patent law, and copyright law belong to private law, and their main function is to protect the lawful rights and interests of civil subjects. They have completely different legislative purposes, functions, and scope of adjustment. Given the above reasons, IP law cannot act as an alternative of advertising law. They only overlap in limited scenarios, such as, when the advertising content is suspected of infringement of trademark, copyright, or patent, the advertisement is subject to both advertising law and IP law.
-
What is the relationship between contract law and advertising law? [For example, if an “offer” made in advertising content is accepted by a third party, can this form a binding contract?]
In the legal system, advertising law and contract law are independent from each other but also overlapping. The advertising contracts should comply with both contract law and advertising law. Advertising transactions are subject to and adjusted by both advertising law and contract law.
Advertising is usually identified as an “invitation for offer”. Article 473 of the Civil Code stipulates that “Auction announcements, bidding announcements, stock prospectuses, bond prospectuses, fund prospectuses, commercial advertisements and promotions, and mailed price catalogs, and the like, are invitations to offer. However, if the content of the advertisement is specific, clear, and meets the conditions required for concluding a contract, it constitutes an “offer”, and once a user accepts it and makes a “commitment”, it is binding on the advertiser.
-
What is the relationship between human rights law and advertising law? [For example, can advertisers rely on a right to freedom of speech to justify otherwise prohibited advertising?]
In the Chinese law system, there is no a specific human rights law. Human rights are mainly reflected in Constitution and the Civil Code, among others. Advertising law is independent of such laws, each with their own legislative purposes and functions.
Advertisers, advertising agents, or advertisement publishers shall not publish illegal advertisements based on their right to freedom of speech, otherwise it constitutes an abuse of rights. Article 5 of the Advertising Law stipulates that advertisers, advertising agents, and advertisement publishers shall abide by the laws and regulations, and the principle of honesty, credit worthiness and fair competition in carrying out advertising activities.
-
How are breaches of advertising law and regulation enforced? [Briefly outline the process, including significant stages of the dispute, time to resolution and likely penalties]
The Advertising Law and its supporting regulations provide detailed regulations on breaches of advertising law and regulation. According to the different circumstances of breaches, advertisers who breach advertising law and regulation will be subject to penalties including suspending advertising, eliminating impact, confiscating advertising service fees, fines, suspending advertising publishing business, revoking business license, and revoking advertising publishing registration documents, which depends on the type of breach behavior, the amount of advertising service fees, the impact of breaches, and whether there are other circumstances that require severe punishment.
Generally speaking, breaches of advertising law first face administrative penalties from the local administration for market regulation. The local administration for market regulation department usually first evaluates whether to file the case for any breaches of advertising law detected (mainly from advertising monitoring results or public complaints or reports); once a case is filed, it will initiate an investigation to collect evidence, and notify relevant advertising entities to explain and submit supporting documents regarding suspected breaches. If necessary, law enforcement personnel may visit the scene to inspect or inquire; after the investigation of the case is completed, the competent authority will issue an Administrative Penalty Decision or make a decision not to impose punishment based on the investigation results. The whole process usually takes 1-3 months.
In addition to the administrative penalties, breaches of advertising law may also be subject to civil liability. The ,party whose legitimate rights and interests are infringed upon by breaches, such as trademark owners, copyright owners, patent owners, competitors and consumer protection associations, has the right to file civil lawsuits before court. Such lawsuit is independent from administrative penalties imposed by the administration for market regulation and can go in parallel. If the party finally wins the lawsuit, the infringing party may be ordered to stop the infringing act, issue an apology statement, and/or compensate for the losses.
China: Advertising & Marketing
This country-specific Q&A provides an overview of Advertising & Marketing laws and regulations applicable in China.
-
How is harmful and offensive advertising regulated? [For example, advertising content that may be obscene, blasphemous, offensive to public morals or decency, or offensive to protected minorities or characteristics?]
-
How is unfair and misleading advertising regulated? [Briefly describe the law and regulation applying to unfair and misleading advertising in your jurisdiction. Cover any specific unfair or misleading practices that are prohibited, as well as the general category of misleading advertising]
-
Do any specific rules restrict advertising for the following product sectors? If so, how? a. Alcohol b. Tobacco and related products, such as vapes and nicotine pouches c. Medicines, medical devices and surgical or medical procedures d. High fat, salt and sugar foods e. Gaming and gambling services f. Adult and sex-related services
-
Do any specific rules apply to advertising featuring prices?
-
Do any specific rules apply to the use of testimonials and endorsements in advertising?
-
Do any specific rules apply to environmental or “green” advertising claims?
-
What rules apply to the identification of advertising content – for example, distinguishing advertorial from editorial?
-
How is influencer/brand ambassador advertising regulated?
-
Are any advertising methods prohibited or restricted? [For example, product placement and subliminal advertising]
-
Are there different rules for different advertising media, such as online, broadcast, non-broadcast etc?
-
Are there specific rules for direct marketing such as email, SMS and direct mail?
-
Is advertising to children and young people restricted beyond general law and regulation? If so, how?
-
How is comparative advertising regulated?
-
Are consumer promotions specifically regulated as advertising (as distinct from contract law)? If so, how?
-
Are there specific rules on promotional prize draws and skill competitions? If incorrectly executed, can these be classed as illegal lotteries? If so, what are the possible consequences?
-
Must promotional prize competitions be registered with a state agency or authority? [If so, briefly explain the process, typical time from application to approval, and any costs]
-
What is the relationship between IP law and advertising law? [For example, can IP law provide an alternative enforcement mechanism in addition or alternatively to advertising-specific law and regulation?]
-
What is the relationship between contract law and advertising law? [For example, if an “offer” made in advertising content is accepted by a third party, can this form a binding contract?]
-
What is the relationship between human rights law and advertising law? [For example, can advertisers rely on a right to freedom of speech to justify otherwise prohibited advertising?]
-
How are breaches of advertising law and regulation enforced? [Briefly outline the process, including significant stages of the dispute, time to resolution and likely penalties]