In November, it was reported that L'oreal (China) Co., Ltd. was fined RMB 200,000 for a printed advertisement posted in a shopping mall. The ad included content such as "Biotherm Life Plankton Essence, to have new skin regardless of age and skin condition", and "all skin problems have be resolved", "68,800 people have witnessed the miracle"1.
With this ad, L'oreal fell afoul of Article 28 of the Advertising Law of the People's Republic of China, which defines a false advertisement as one that deceives or misleads consumers with false or confusing content or that falls within any of the following categories:
- the underlying products or services do not exist;
(a) the information on the products or services is untrue in terms of performance, function, place of origin, purpose, quality, specification, ingredients, price, producer, usable period of the product, sales, awards of the products or the content, provider, form, quality, price, sales and awards of the services, or in terms of any guarantee relating to the products or services, and (b) such inconsistency has a substantial influence on the purchase;
- the advertisement cites scientific achievements, statistics, research results, abstracts, quotations or other information that is false or cannot be verified;
- the advertisement claims false effects from the use of the products or services.
Cosmetics advertisements often exaggerate the efficacy of products or spin data to attract consumers, and thus are easily considered to be a false advertisement under sections 2 and 3 above. In order to reduce such risk, the following points should be kept in mind when advertising cosmetics in the PRC.
1. Data and statistics in the advertisement should be authentic and accurate, with the source indicated.
In a case similar to that of L'oreal, the famous Chinese essential oil brand Afu was fined RMB 160,000 in 2014 for advertisements that claimed "Number 1 sales on the internet" without any supporting data and "materials originated from Europe" without any evidence.
To avoid such risk, any data and statistics used in the advertisement should be double-checked for authenticity and accuracy, and clearly marked with the data's source. Especially for data that comes from self-conducted experiments, it is suggested to explain the sample experiment and add a disclaimer at the advertisement that the results may vary from person-to-person.
2. Certain words can ONLY be used after obtaining the Special Purpose Cosmetic Certificate.
In April 2018, Hefei Guimi Medicine Technology Co., Ltd. was fined RMB 200,000 for using the words "whitening and removing melanin (美白去黑色素)" and "fading melanin (淡化黑色素)" without procuring the Special Purpose Cosmetics certificate.
According to the Regulations on the Hygienic Supervision of Cosmetics (化妆品卫生监督条例) issued by the State Council on March 2, 2019, the manufacture of "Special Purposes Cosmetics" must be approved by the cosmetics regulatory department under the State Council before production.
"Special Purpose Cosmetics" refer to cosmetics used for hair restoration (生发), hair color（染发）, hair perm（烫发）, hair removal（脱毛）, breast enhancement（美乳）, bodybuilding（健美）, deodorant（除臭）, spot fading (祛斑)）and sunblock（防晒）.
Therefore, cosmetics are not allowed to be advertised with any claims about their effectiveness in these categories unless the brand first obtains the Special Purpose Cosmetics certificate, otherwise such promotion could be deemed a false advertisement.
3. Do NOT mix cosmetics and medicines- It is illegal to claim to be a "cosmeceutical" or "medical skin care" product
In 2019, Guangxi Acceleration Biotechnology Co., Ltd. was fined RMB 100,000 for stating that its products have the effect of "activating blood circulation". Similarly, Shenzhen Yifucao Biotechnology Co. Ltd was fined RMB 200,000 for misleading consumers by promising to "cure eczema and allergies and the other skin inflammations"2.
Article 17 of the Advertising Law stipulates that only advertisements for pharmaceuticals, medical devices, and medical treatment may refer to disease treatment, or use medical language or words that can easily confuse consumers into thinking that the products are medical. Further, products registered or filed as cosmetics cannot be legally promoted as "cosmeceutical" or "medical skincare" products3.
Therefore, cosmetic advertisements must not claim any medical effects, nor use medical terms, including anti-inflammatory, activating blood circulation, detoxification, anti-allergy, removing blood stasis, etc.
Because of this requirement, many "cosmeceutical" products (including from VICHY, La Roche-Posay, CeraVe, SkinCeuticals) have had to revise their advertisements.
4. Do NOT use "state-level", "the highest-grade", "the best" or similar hyperbole
Section 3 of Article 9 of the Advertising Law stipulates that absolute terms like "national level", "highest level" and "best", are prohibited in advertisements.
This prohibition is not a special requirement for cosmetics. However, in practice, cosmetics advertisements often use terms like "top", "latest technology", "no side-effects" or claim that the product does not have any side effects and will not negatively impact the skin. These words are likely to confuse consumers and fall within the prohibitions of the Advertising Law.
5. Be Careful with the Chinese Translations
Finally, do not let an advertisement's meaning be lost or changed during translation. China's cosmetic industry is rapidly developing and many famous international brands find China to be an important market. However, given the language differences, foreign brands may find it difficult to select the right words to describe their product's function properly and legally in Chinese. Thus, finding a local advertising agency and experienced lawyers can be helpful.
Conclusion: The enforcement on false advertisements has become stricter in recent years Cosmetics enterprises should attach increased importance to the compliance issues, striving to balance the relationship between advertising creativity, brand benefits and legal compliance. If there is any uncertainty, advertisers should seek professional review of its advertisements prior to publication to avoid the legal and reputational risks.
1 According to the "10 typical cases of illegal advertisements in 2019" released by Chongqing Administration for Market Regulation in November, 2019.
2 The list of 25 typical cases of false and illegal advertisements in 2019 released by the State Administration for Market Regulation on August 26, 2019.
3 FAQ for Supervision and Management of Cosmetics issued by Cosmetics Department of the National Medical Products Administration, published on January 10, 2019.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances./p>