Misleading advertising practices in Japan

Misleading advertising

How is editorial content differentiated from advertising?

There are no such requirements to disclose where advertisers have influenced editorial content.

How does your law distinguish between ‘puffery’ and advertising claims that require support?

Advertising claims generally require support in Japan. If claims cannot be supported, they are generally treated as misleading or untruthful advertising. What might be considered puffery in another jurisdiction can potentially be subject to challenge. See question 17.

What are the general rules regarding misleading advertising? Must all material information be disclosed? Are disclaimers and footnotes permissible?

Misleading advertising is considered to occur in the case of any representation:

• by which the quality, standard or any other matter relating to the substance of goods or services are shown to general consumers to be much better than is actually the case or much better than that of other competitors, contrary to the facts, and that thereby tends to unjustly influence customers and impede fair competition;
• by which price or any other trade terms of goods or services will be misunderstood by general consumers as being much more favourable to them than is actually the case or more favourable than those of competitors, and that thereby tends to unjustly influence and impede fair competition; or
• that is likely to cause any matter relating to transactions for goods or services to be misunderstood by general consumers and that is designated by the CAA as being likely to unjustly influence customers and to impede fair competition.

Misleading advertising is prohibited in Japan.

It is not necessary to disclose all material information, and footnotes are permissible. There are no specific rules on disclaimers, but it is rare to use disclaimers in advertising, with the exception of tobacco advertising. In tobacco advertising, disclaimers such as ‘light neither means low tar nor low risk’ or ‘mild does not mean mild effect’ are generally used.

Must an advertiser have proof of the claims it makes in advertising before publishing? Are there recognised standards for the type of proof necessary to substantiate claims?

It is not necessary to have proof of the claims before publishing, and there are no recognised standards for the type of proof in Japan, but it is advisable to have proof of any claims before publishing if you are going to make any claims that might appear to be misleading.

Are there specific requirements for advertising claims based on the results of surveys?

No.

What are the rules for comparisons with competitors? Is it permissible to identify a competitor by name?

Advertising may use comparisons if the comparison is proven objectively, is supported by evidence and presented correctly and appropriately and is fair in methodology. It is permissible to identify a competitor by name, although it is rare in practice.

Do claims suggesting tests and studies prove a product’s superiority require higher or special degrees or types of proof?

There are no specific degrees or types of proof. However, tests and studies must be objective, must be supported by results and facts, and must be fair.

Are there special rules for advertising depicting or demonstrating product performance?

No.

Are there special rules for endorsements or testimonials by third parties, including statements of opinions, belief or experience?

No. Industry codes of practice generally stipulate that a statement of opinions, beliefs and experience must not mislead consumers, and advertisers use notes on statements such as ‘this is an individual experience and not for everyone’. Endorsement by third parties may not be used without their prior consent and must not mislead consumers. Professional comments, for example, by a doctor or a specialist, must be general and not for a specific good or service.

Are there special rules for advertising guarantees?

No.

Are there special rules for claims about a product’s impact on the environment?

No.

Are there special rules for describing something as free or a free trial or for special price or savings claims?

No. However, there is a special guideline on representation of pricing in relation to the AUPMR issued by the Fair Trade Committee (now taken over by the CAA), and, again, any misleading advertising is prohibited.

Are there special rules for claiming a product is new or improved?

No. However, some industry-based fair commission codes only allow the use of ‘new product’ or ‘newly on sale’ for the first six months after a new product is introduced to the market.

Are there special rules for claiming where a product is made (such as country of origin)?

There is a notice on origin of products under the AUPMR. If a representation of the origin of a product is found to be misleading, the Secretary General of the CAA may order the advertiser to cease the misleading representation and to take necessary measures to prevent such misleading representations.

However, there are no specific rules on representation of origin of products excepting geographic indication (GI) on certain agricultural, forestry and fishery products and foodstuffs.

The Act on Protection of the Names of Specific Agricultural, Forestry and Fishery Products and Foodstuffs (Geographical Indication (GI) Act) entered into force in June 2015. The GI Act provides a system whereby the government protects names of such products as intellectual property. Using a geographical indication or similar indication on any other agricultural, forestry and fishery products and foodstuffs not belonging to the classification of specific agricultural, forestry and fishery products and foodstuffs protected under the GI Act is prohibited; and the Minister of Agriculture, Forestry and Fisheries may order a person who violates the GI Act to take necessary measures, remove or erase the geographical indication or an indication similar thereto.