The “Law Enforcement Guide for Absolute Terms in Advertising” has been implemented on February 25, 2023
The “absolute terms in advertisements” normally refers to the circumstances stipulated in item (3), Article 9 of the “Advertising Law”, including “national level”, “highest level”, “best” and other terms with identical or similar meanings. Because the scope of such items is not specific, and the identification rules regarding such items is not clear, different local authorities have various opinions on the identification of such items, and have made different discretions regarding similar cicumstances in the administrative enforcements. Therefore, the SAMR issued the”Law Enforcement Guide for Absolute Terms in Advertising”( hereinafter referred to as the “Guide”) on February 24, 2023.
Articles 4 to 6 of the “Guide” provide for the regulation of non-absolute terms, which can be interpreted as the “safe zone” of absolute terms and can be divided into three categories:
- 1. The “self-introduction” of commodity business operators
Article 4 of the “Guide” stipultes that, “where a commodity business operator (including a service provider, same hereinafter) releases information on its own name, abbreviation, logo, date of incorporation, scope of business, etc., at its business premises, self-established website or any other medium which it has the legal right to use, without directly or indirectly promoting its commodities (including services, same hereinafter), such information shall generally not be deemed as advertisements.”
To be noted that the second item of Article 4 emphasizes that, “where absolute terms are used in the information, and the commodity business operator is unable to prove the veracity of such terms, which may affect consumers’ right to know or harm the legitimate rights and interests of other business operators, investigation shall be vehicleried out pursuant to other laws and regulations.”
- 2. The absolute terms used in an advertisement which do not point to the commodities promoted by a commodity business operator.
According to Article 5 of the “Guide”, under any of the following circumstances, the provisions on absolute terms in the Advertising Law shall not apply to the absolute terms used in an advertisement which do not point to the commodities promoted by a commodity business operator:
(I) only indicating the service attitude or business philosophy, corporate culture and subjective aspirations of the commodity business operator;
(II) only expressing the goals pursued by the commodity business operator; and
(III) other circumstances where the contents referred to by absolute terms are not directly related to the performance and quality of the commodities promoted in the advertisement and will not mislead consumers.
- Six special circumstances for the absolute terms used in an advertisement which point to the commodities promoted by a commodity business operator.
According to Article 6 of the “Guide”, under any of the following circumstances, the provisions on absolute terms in the Advertising Law shall not apply where the absolute terms used in an advertisement point to the commodities promoted by a commodity business operator, without any objective consequence of misleading consumers or belittling other business operators:
(I) only being used for self-comparison of commodities of the same brand or the same enterprise’s commodities;
(II) use method, use time, preservation period and other consumption tips used only for promotion of commodities;
(III) terms used in classifying the commodities as determined in accordance with the national standards, industry standards and local standards, etc. contain absolute terms and can provide the relevant basis;
(IV) the name, specifications or type, registered trademark or patent of the goods contains absolute wording, or the name, specifications or type, registered trademark or patent of the goods is used in an advertisement to refer to the goods in order to distinguish from other goods;
(V) containing absolute terms in awards and titles assessed in accordance with the relevant provisions of the state;
(VI) expression of objective situations in time and space order or publicity of factual information such as product sales volume, sales amount and market share under the limited conditions such as specific time and territory.