Chinese’ food and beverage market is growing fast, and food players from all over the world strive to increase their market share.
While advertising campaigns become more and more tailored on Chinese consumers and aggressive, food companies should be very careful not to trespass the limits imposed on advertising by Chinese regulation.
Regulation of advertising is mainly aimed at both protecting the consumer’s faith and fair competition between operators.
PRC Advertising Law, of 1994, of course provides the main framework; however, PRC Consumer Protection Law of 1993 (amended on 25 October 2013) and PRC Anti-Unfair Competition Law of 1993 also contain relevant provisions.
Advertisements shall not1 (ii) violate national security, (iii) offend public morality, (iv) discriminate by ethnicity, religion or sex, (v) threatening environment.
PRC national symbols (flag, emblem, anthem), or referral to state organs or their officers, cannot be included in advertisements2.
Of course, advertisement shall be true and cannot contain any false or misleading information3, in particular about quality4, composition, performance, use, producer, shelf life, origin, etc5.. Basically, any content shall be objective and able to be supported by evidence.
Advertisements shall be recognizable and cannot be in the format of news report6.
Any data, statistics, survey, quotations used in advertisements shall be true and accurate, and the sources shall always be indicated7. Claims of patents shall be true and include all references (patent type and number) to the patent, and are only allowed for patents already granted – i.e. mere applications still pending cannot be used8.
Although comparative advertising is not clearly and generally forbidden, advertisements cannot belittle or denigrate competitors9.
Superlative expressions such as “national level” (国家级) “highest grade” (最高级) or “the best” (最佳) are expressly forbidden10, as well as referrals to “the newest science” (最新科学), “the most advanced process” (最先进加工工艺), “the most recent technology” (最新技术)11.
Such superlative-list is de facto open, as authorities can evaluate on a time-by-time basis whether advertisements convey messages conflicting with the law.
For instance, the following have been deemed equivalent to the superlative expressions forbidden under article 7 of the Advertising law12:
any mention of market share13 such as “best-sold in the Country” (全国销量第一), “biggest market share” (市场占有率第一), “leader brand on the market” (市场主导品牌) or “consumers’ first choice” (消 费者首选品牌)；
express endorsements such as “brand/product recommended by..” (推荐产品/品牌); “identified by..” (认定); “recognized by..” (×认可)；“shown by..” (展示); “collected by..” (荟萃)； “appointed by..” (指定);
superlatives such as “famous Chinese brand/product” (中国公认名/品牌), “first brand” (第一品牌) or “ultimate” (极品).
SPECIFIC REGULATION FOR FOOD PRODUCTS ADVERTISEMENT
Because of their unique importance for human life, food products are also subject to specific regulations14 – mainly, the PRC Food Safety Law of 2009, as well as various other regulations – in terms of advertising in addition to the abovementioned general provisions.
Food advertisement shall not be false or even just exaggerated15. Endorsements
Advertising cannot include – under any form – recommendations by food safety regulatory agencies or institutions undertaking food inspection and testing, food industry associations, or customer associations16. Food advertising cannot exploit the title or the image (e.g., by showing a person wearing doctor’s white coat) of doctors and medical organizations; moreover, any statements by experts and consumers – as long as their
title or image is stressed – are not allowed.
Implicit endorsement from other entities or individuals (e.g. celebrities) is allowed, although endorsers can also be held liable17 in case those advertisements are declared fake or misleading. In a recent case currently
pending, basketball celebrity Yao Ming appears to have been sued by a consumer in Beijing claiming to have being induced by Yao Ming’s endorsement to purchase some fish-oil pills – which purportedly turned out to be less effective than shown in advertisement.
Avoid confusion with drugs/health food
Food products advertisement shall comply with public health regulations, avoid medical jargon as well as any confusion with pharmaceutical products 18 ; claims (explicit or implicit) of disease prevention or treatment functions are strictly forbidden19.
Ordinary food (i.e. non-health food) can boast nutritional claims (e.g.: no lactose; low sodium; rich in dietary fiber; fat reduced compared with...; Carbohydrate is the major source of energy for human”) but only in strict compliance with the relevant regulation20.
Specific food products
Some regulations are specific to particular food products. For instance:
baby food advertising cannot show breastfeeding women or infants, nor imply that these products can replace/substitute breast milk21;
alcoholic beverages advertisements 22 shall not (i) show the act of drinking, minors, potential dangerous actions (such as driving cars, boats of planes), (iv) convey implicitly or explicitly the message that those drinks help to release stress, anxiety or increase physical strength, (v) associate personal, business or sport success to their consumption, (vi) declare any prize, positive appraisals/evaluations or awards obtained. Moreover, alcoholic beverages’ advertisements can be published on media (television, radio, newspaper) within specific limits (TV: no more than twice a day between 19-21h and no more than 10 times during normal times; Radio: no more than twice per hour; Newspapers/magazines: no more than twice per issue, and never on first page/cover).
Control on food products advertising has also an impact on import procedures: if specific features - such as awards, certificates, production location, geographical indications, special ingredients – are stressed on the label, it is necessary to provide the authority in charge of label inspection (AQSIQ) with certified supporting
evidence 23 . In case of import dairy products (such as milk, cheese, yoghurt, baby formula) labeled with mention of awards, certifications or prizes, the supporting certificates shall be legalized through diplomatic
HEALTH FOOD, NOVEL FOOD, FOOD FOR SPECIAL DIETARY USE
Health food advertising is subject to a specific regulation25 and procedure, as applicants (i.e. health food companies) need to have all advertising content pre-approved by the local office of the CFDA. Application documents include the certificates and approval for the production or import of the health food, as well as the standards, labels and packaging. The approval lasts for one year.
Functions claims are allowed only26 – on a very strict basis – for those products which have been successfully registered as “Health Food” (保健食品) with the CFDA. It is an extremely long and costly procedure, as it
involves – depending on the specific claim – tests on animals or humans. Even for approved health food, only the specific claims are allowed (same exact wording as provided by the regulations and approved by CFDA). It is strictly forbidden for health food any reference or mention to therapeutic claims/effect. However, according to an official release by CFDA on 7 June 2013, around 90% of health food advertisements on television and newspaper appears to have breached this provision.
Health food advertising shall avoid using the following27:
expressions such as “science or research discovers that ..”, “experiments or data prove that..” and similar, as long as they cannot be confirmed/verifies; claims that the health food product is a traditional method/recipe; referral to “safety”, “no toxic side effects”, “no addictive” etc; claims that the health food products is necessary for a normal life.
It is explicitly forbidden comparative advertising between health food and other health foods or drugs28.
Health products advertising shall always display the notice “this product cannot replace drugs”; on TV advertising, this notice shall appear for the whole duration of the advertising29.
Advertising of health food, novel food and special dietary use food shall display the approval registration number30 for that specific product.
Mistakes or inaccuracies on the label lead – in several cases – can expose to legal liabilities.
Sometimes it can be the wrong translation into Chinese of a food ingredient – such as the famous case of almonds, which have been translated (and labelled) into Chinese as 杏仁 (apricot kernel) until a consumer objected that the correct translation should have been “扁桃仁” or “巴旦木”.
Other times it can be a fake/wrong indication of product’s or ingredient’s origin 31 , as well as promotion campaigns (with prizes or vouchers) omitting to indicate the exact ratio of “winning” products 32 are also considered as commercial fraud to the consumers.
Labels can undergo the scrutiny by PRC authorities even if they are in foreign languages – as long as they are able to mislead potentially Chinese consumers: it is the case for instance of organic food, which can be labelled as “ORGANIC”, “BIO” or equivalent (in Latin alphabet) only if it complies with PRC standards for
organic (“有机”) food and has obtained the relevant PRC certificates in this regard (which are different from
European and American ones). Japanese labels – whose kanji are same or very similar to Chinese non- simplified ideograms – also incur – to a wider extent – in this risk.
Violation of regulations on advertising can trigger several sanctions, depending on the specific case. Advertising Law33 punishes several misconducts of advertisers as well as advetriing agencies/operators – with fines up to five times the amount of the advertising expense.
Food Safety Law – and its famous article 96 – allows consumers to claim from either the producer or the seller
(i.e. the retailer) punitive damages up to ten times the price paid in case of in case of purchase of food product not complying with food safety standards34.
Mis-representation (through advertising or other means) of the quality of own goods or service is also punished by Anti-Unfair Competition Law with fines up to 200,000 RMB35.
The Consumer Protection Law also provides grounds for punishment in some cases – e.g. for non-compliant promotions through prizes/awards, which can be considered as fraud to the customer36.
Finally, the (soon-to-be approved) revision of Food Safety Law37 provides that advertising operators – as well as publishers, designers, producers – involved in false food advertising shall bear joint liabilities together with the advertisers (food producers/traders).