The State Administration for Market Regulation released the "Enforcement Guidelines on Absolute Terms in Advertising"
Absolute wording in advertisements generally refers to the situation stipulated in Article 9, Paragraph 3 of the Advertising Law, including terms such as "national level," "highest level," and "best," as well as other terms with the same or similar meanings.
To further standardize the enforcement of absolute wording in advertisements, protect the legitimate rights and interests of natural persons, legal persons, and other organizations, and maintain order in the advertising market, the State Administration for Market Regulation recently issued the "Enforcement Guidelines for Absolute Wording in Advertisements" (hereinafter referred to as the "Guidelines") to provide guidance for market regulation departments in carrying out supervision and enforcement of absolute wording in advertisements.
Absolute wording in advertisements generally refers to the situation stipulated in Article 9, Paragraph 3 of the Advertising Law, including terms such as "national level," "highest level," and "best," as well as other terms with the same or similar meanings. The Guidelines respond to the difficulties and hot issues related to the enforcement of absolute wording in advertisements, based on the practice of advertising supervision and enforcement. Firstly, it further clarifies the boundaries of legal application. Combining the legislative intent of the Advertising Law and the practice of supervision and enforcement, the Guidelines further specifies the situations where absolute wording in advertisements does not apply to Article 9, Paragraph 3 of the Advertising Law, avoiding mechanical "one-size-fits-all" enforcement. Secondly, it further clarifies the general principles of enforcement and supervision. The Guidelines require that all levels of market regulation departments, in the enforcement of absolute wording in advertisements, should combine the content of the advertisement and the specific context for overall understanding and judgment, achieving the unity of political, social, and legal effects. Thirdly, it further standardizes discretionary power. Based on laws, regulations, rules, and relevant provisions such as the Guiding Opinions of the State Administration for Market Regulation on Standardizing the Discretionary Power of Administrative Penalties in Market Supervision and Management, the Guidelines further specifies the situations where penalties may be waived, reduced, mitigated, or aggravated, so that advertising supervision and enforcement are both forceful and humane.
The Guidelines explain the regulatory concepts, enforcement considerations, and penalty scales of market regulation departments to the public. This is a practical measure to accurately grasp the spirit of the rule of law and optimize the business environment. It is conducive to protecting the legitimate rights and interests of a wide range of business entities, especially individual industrial and commercial households and small and micro enterprises, and further stimulating market vitality; it is also conducive to standardizing and strengthening advertising supervision and enforcement work and improving the efficiency of administrative resource operation.
Recently, the State Administration for Market Regulation released the "Enforcement Guidelines for Absolute Wording in Advertisements" (hereinafter referred to as the "Guidelines") on its official website. On March 20, relevant responsible comrades from the Advertising Supervision Department of the State Administration for Market Regulation answered reporters' questions on the Guidelines.
Answer: Article 9, Paragraph 3 of the Advertising Law prohibits the use of absolute wording such as "national level," "highest level," and "best" in advertisements. The legislative intent is to prevent advertisers from exaggerating their claims, misleading consumers, or denigrating other operators. However, some local market regulation departments have shown a tendency towards a "one-size-fits-all" and "simplistic" approach in the supervision and enforcement of absolute wording in advertisements, resulting in some advertising administrative penalty cases exhibiting the phenomenon of "inappropriate penalties."
In order to further strengthen and standardize the enforcement of absolute wording in advertisements, unify local enforcement standards, better protect the legitimate rights and interests of small and medium-sized enterprises, and create a good business environment, based on previous work and local enforcement practices, the State Administration for Market Regulation has formulated the Guidelines in accordance with the Advertising Law, the Administrative Penalty Law, and other laws and regulations. The issuance of the Guidelines clarifies the regulatory concepts, enforcement considerations, and penalty scales of market regulation departments to the public. This is a practical measure to accurately grasp the spirit of the rule of law and optimize the business environment. It is conducive to protecting the legitimate rights and interests of a wide range of business entities, especially individual industrial and commercial households and small and micro enterprises, and further stimulating market vitality; it is also conducive to improving the efficiency of administrative resource operation and standardizing and strengthening advertising supervision and enforcement work.
Answer: The adjustment scope of the Guidelines is Article 9, Paragraph 3 of the Advertising Law, which includes terms such as "national level," "highest level," and "best," as well as other terms with the same or similar meanings. The Guidelines require that the enforcement of absolute wording in advertisements should adhere to the principles of commensurate penalties, fairness and justice, combining punishment and education, and comprehensive discretion. In specific supervision and enforcement activities, market regulation departments should combine the content of the advertisement, the specific context, and the facts, nature, circumstances, degree of social harm, and the subjective fault of the parties involved to make an overall grasp and judgment of the absolute wording, accurately grasp the enforcement scale, reasonably exercise the discretionary power of administrative penalties, and achieve the organic unity of political, social, and legal effects.
Answer: Combining the legislative intent of the Advertising Law and the practice of advertising supervision and enforcement, the Guidelines, using a list approach, further specifies the situations where absolute wording in advertisements does not apply to Article 9, Paragraph 3 of the Advertising Law, to guide local market regulation departments in standardized enforcement. For example, the Guidelines clearly stipulate the situations where administrative penalties may be waived. It should be pointed out that exemption from penalties does not mean exemption from liability; exemption from penalties only means that administrative penalties are not imposed, and the responsibilities of the business entities that are exempted from penalties, such as correcting illegal acts and eliminating the impact, still exist. Ultimately, the Guidelines reflect the trust of administrative law enforcement departments in the desire of business entities to operate legally and in compliance with regulations, and are intended to better encourage a wide range of business entities to learn the law, abide by the law, and be self-disciplined.
At the same time, in order to protect the vital interests and safety of the general public, the Guidelines, with regard to key areas such as education and training, medical care, medical beauty, pharmaceuticals, health foods, and financial management, clearly stipulate that the use of absolute wording in these advertisements does not constitute a situation of minor illegal acts or relatively minor social harm, effectively preventing the absolute wording in advertisements from shifting from "simple and mechanical" to "excessively lenient," ensuring that the effects of advertising enforcement are balanced, legally sound, and flexible.
It should be noted that the Guidelines also clarify that advertisers should be responsible for the authenticity of the content of their advertisements. Even if the wording used in the advertisement does not violate the provisions of the Advertising Law concerning absolute wording, if the advertiser cannot prove its authenticity, it should still be investigated and dealt with in accordance with the relevant provisions of the Advertising Law.
Answer: In response to the confusion of some business entities, and even some grassroots market regulation departments, regarding the scope of application of the Advertising Law, the Guidelines provide a positive response, clearly pointing out that when business entities publish non-marketing information at their business premises, on their own websites, or on other media they have the right to use, it is generally not considered advertising. The purpose is to legally protect consumers' right to know and choose. However, this does not mean laissez-faire. We should see that honesty and credit, and fair competition are basic requirements for business entities. If the relevant business entities cannot prove the authenticity of the above information, and it may affect consumers' right to know or harm the legitimate rights and interests of other business entities, they can still be investigated and dealt with in accordance with other laws and regulations.
Answer: Accurately understanding the spirit of the law, precisely grasping the enforcement standards, and reasonably exercising the discretionary power of administrative penalties require the joint efforts of the entire market supervision system. The release of the "Guide" is of great significance to the market supervision departments in effectively fulfilling the responsibilities entrusted by the "Advertising Law," regulating advertising activities, and ensuring that advertising law enforcement is both forceful and humane. The State Administration for Market Regulation will thoroughly study and implement the spirit of the 20th National Congress of the Communist Party of China, take the release of the "Guide" as an opportunity, conduct extensive publicity, provide attentive guidance, and vigorously carry out training for law enforcement personnel, so that the entire system can quickly understand and grasp the main spirit of the "Guide," promote the continuous improvement of the legal literacy of grassroots advertising law enforcement personnel, enable them to skillfully use legal thinking and legal means to solve problems, continuously improve the efficiency and level of law-based administration, and contribute to the high-quality development of the advertising industry.
