In February 2023, the State Administration of Market Regulations published its final Guidance for the Use of Superlative Adjectives in Advertising(the "Guidance") after seeking public comments since it released the draft in December 2022 (for more details, please see: http://blog.galalaw.com/post/102i339/samr-seeks-public-comments-on-its-guidance-for-the-use-of-superlative-adjectives). The Guidance clearly narrowed down the scope of advertising for legal enforcement purpose , clarified the circumstances that superlative adjectives can be used and listed factors to consider for lighter or no penalties. This provides meaningful guidance for brands to follow. Although the purpose of the Guidance is to provide a reference for market supervision departments to carry out advertising supervision and law enforcement on the use of superlative adjective (also known as absolute language or absolute terms) in advertising, it provides meaningful guidance for brands/companies to follow when using superlative words in their marketing activities.
Background
The use of superlative adjectives in advertising is a common practice in many parts of the world. However, under China’s Advertising Law, such usage is prohibited. The law requires that advertisements be authentic and accurate and prohibits the use of superlative words such as “state-level”, “highest level”, and “best”. In addition to these specific words described in the Advertising Law; law enforcement has tended to interpret this prohibition in a very broad way. This has led to an unofficial long list of prohibited words that have been used within industry screening processes - to avoid legal noncompliance.
This Guidance is particularly relevant for companies that have used superlative words within their company introductions or product introductions online - including on their website, on e-commerce platforms and social media pages - especially those who use versions similar to what they've used elsewhere around the world.
Scope of “superlative adjective”
As it is a legal guidance which cannot override advertising law, it clearly defined the superlative adjective in advertising as those under the article 9 of Advertising Law, including “state-level”, “highest level”, “best”, among others. The Guidance explains “among others” as those words having same or similar meanings to “state-level”, “highest level”, “best”.
Narrowed Down the Scope of Advertising for Legal Enforcement Purpose
Instead the overreaching scope of adverting law enforcement in the past, it clearly mentioned that “If a products/services operator publishes information without promoting its goods (including products and services, same below), such as its name, logo, establishment time and business scope, in its business premise or via its website or other media that it has legal right of use, generally it shall not be deemed as an advertisement.
Circumstances that Superlative Adjectives Can Be Used
According to the Guidance, there are certain circumstances where the use of absolute terms in advertisements does not refer to commodities promoted by commodity operators and therefore provisions on absolute terms do not apply. These circumstances include when absolute terms are only used to express service attitude or business philosophy, corporate culture, and subjective wishes; when they are only used to express pursuit of goals; and other situations where the content pointed to by absolute terms is not directly related to product performance and quality.
Additionally, there are also circumstances where even if absolute terms refer to commodities promoted by commodity operators but do not have objective consequences of misleading consumers or belittling other operators, then provisions on absolute terminology do not apply. These include when absolute terms are only used for self-comparison within a brand or enterprise; when they are only used for consumption reminders such as usage methods and shelf life; when they are included in commodity classification terms determined according to national standards; when product names or trademarks contain absolute terms; when awards and titles evaluated according to state regulations contain absolute terms; and under certain time or geographical conditions to express objective situations such as product sales and market share.
Factors to Consider for Lighter or No Penalties
According to the Guidance, when imposing administrative penalties on absolute terms in advertisements, market supervision departments should consider factors such as content and context of the advertisement, facts and nature of the violation, degree of social harm and subjective fault.
If an absolute term is used in an advertisement for the first time and harmful consequences are minor and corrected in time, then no administrative penalty may be imposed. Additionally, if companies use absolute terms in their business premises or self-established websites for a short period or with a small number of viewers and do not cause harmful consequences then they may not face administrative punishment. If harmful consequences are minor, then punishment may be lightened or mitigated according to law.
However, it’s important to note that there are certain circumstances where violations are generally not considered minor or less harmful under any one of these following circumstances:
(1) Absolute terms related to curative effect, cure rate, and effective rate appear in the advertisements of medical treatment, medical cosmetology, pharmaceuticals, medical equipment, health food, and formula food for special medical purposes;
(2) Absolute terms related to investment rate of return, investment security, etc. appear in advertisements for products with expected return on investment such as investment promotion;
(3) Absolute terms related to education and training institutions or the effects of education and training appear in education and training advertisements.
Takeaway
Although the purpose of the Guidance is to provide a reference for market supervision departments when carrying out advertising supervision and law enforcement on superlative adjective usage in advertising, it also provides meaningful guidance for brands/companies who want to use superlative words in their marketing activities.
- Before applying these exceptions when using superlatives in advertisements, brands need to make sure they are authentic and not misleading - which can be proven.
- If you operate within sensitive industries such as education, investment, medical or health food; it’s advised to be cautious and pay attention to these circumstances listed above - so as to avoid legal issues.
- For those who want to use superlatives within their advertisements, make sure you fall under one of those scenarios where it’s allowed.
- If you’re being investigated for using superlatives, please refer to this article’s section on factors for no penalties or light penalties - then inquire with your local legal adviser based within China.
