China: SAMR Seeks Public Comments On Its Guidance For The Use Of Superlative Adjectives In Advertising

Background

The China Advertising Law is known for prohibiting the use of superlative adjectives such as "the highest", "the best" or "most powerful". However, this prohibition is controversial, especially when brands feel they have evidence to support their proposed phrasing, such as being a bestseller during certain period, or receiving a superlative designation in a legitimate award. This blanket prohibition is also not consistently enforced, particularly in fast-moving formats such as social media public accounts.

New Guidance

To address these issues, on December 7, 2022, the State Administration of Market Regulations issued draft Guidance for the Use of Superlative Adjectives in Advertising (the "draft Guidance"). If enacted, the draft Guidance updates interpretation of the Advertising Law in two critical ways that will significantly expand the ability of brands to safely use superlative adjectives in their advertising in the PRC.

Key Change 1 – Brand references are OK

First, the draft Guidance clarifies that restrictions on superlative adjectives will not apply if the adjective does not refer to the product being promoted but rather to the service attitude, goals, business principles or company culture of the brand.

Key Change 2 – Specific product references are OK

Second, the draft Guidance further clarifies that even when the superlative adjective directly refers to the product, it can still be allowed, provided that it does not have the objective effect of misleading consumers or disparaging other business operators. The draft Guidance provides examples of when such superlative adjective use could be allowed as follows:

(i) it's used for self-comparison of the same brand or the same enterprise's products, and the content is authentic;

(ii) it's used to provide usage tips, such as the best method, best time or best preservation period for the product;

(iii) the superlative adjective is included in the relevant classification term for the product or services under relevant national standards, industrial standards or local standards;

(iv) the product name or registered trademark contains the superlative adjective, and the use of the product name or registered trademark in the advertisement is intended to distinguish it from other products;

(v) it's used to promote the background / raw materials of the product, and the content is authentic;

(vi) the superlative adjective is included in the award or title granted under relevant national rules or policies;

(vii) where the superlative adjective is used in reference to a specific condition, e.g. a limited time or area, the true situation is expressed, such as the actual sales volume or market share.

Key Change 3 – Lighter penalties

The draft Guidance also indicates that penalties for minor infractions will be reduced. For example, it clarifies that if a brand uses a superlative adjective illegally, but it is the first time it has done so and the harm is both slight and rectified in time, then no administrative penalty will be imposed. Similarly, if a brand uses superlative adjectives in an ad published in its own premises or through its own media, and the harm is slight and of short duration, then the administrative penalty should be light.

However, there are exceptions. For example, the draft Guidance specifies that certain uses of superlative adjectives can never be deemed to have "slight" harms, including (i) the curative effects or cure rate in advertisements for medical treatments, pharmaceuticals, medical devices, health food, and formula for special medical purposes, and (ii) investment returns and safety for financial products.

In Conclusion

Overall, if finalized, the draft Guidance will enable brands to use common superlative adjectives much more widely in their China advertising than they are able to currently. This should give brands significantly more creative flexibility in their campaigns, but the industry will need to wait for the final version of the draft Guidance to be issued sometime after January 23, 2023, which is the end of the public comment period.

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