Perspective | Legal Research on the Definition and Scope of Application of False Advertising

Article 28 of the Advertising Law

Advertising that deceives or misleads consumers with false or misleading content constitutes false advertising.

The following situations constitute false advertising:

(1) The goods or services do not exist;

(2) Information about the goods' performance, function, origin, use, quality, specifications, components, price, producer, validity period, sales status, honors received, etc., or information about the service's content, provider, form, quality, price, sales status, honors received, etc., and promises related to the goods or services that do not match the actual situation and have a substantial impact on purchasing behavior;

(3) Using fabricated, forged, or unverifiable scientific research results, statistical data, survey results, abstracts, quotations, etc., as proof materials;

(4) Fabricating the effects of using goods or receiving services;

(5) Other situations that deceive or mislead consumers with false or misleading content.

The harmfulness of false advertising is widespread and far-reaching, not only directly harming consumers' rights but also seriously disrupting the market economy order and negatively impacting the social environment.

From the consumer's perspective, the existence of false advertising makes it difficult for consumers to obtain real and accurate product information, leading to incorrect purchasing decisions. For example, a real estate development company in Zhangzhou published false advertising on its promotional board, claiming "luxury all-age continuous education system" and "all-age education support," misleading consumers into believing that the project has complete educational facilities, thus increasing the cost of buying a house. Similarly, an e-commerce company in Quzhou published false or misleading content while live-streaming the sale of cosmetics, deceiving and misleading consumers, making it impossible for them to judge the true situation of the products during the purchasing process, ultimately suffering economic losses. More seriously, false advertising may also lead to personal injury to consumers, such as false medical advertising, which may mislead consumers into using ineffective or even harmful treatment methods. At the same time, false advertising infringes on consumers' rights to know, choose, and fair trade, undermining consumers' trust in the market.

From the perspective of the market economy, false advertising disrupts market order and harms the fair competitive market environment. False advertising often exaggerates product effects and fabricates product characteristics, giving certain products an unfair advantage in the market, thereby harming the interests of other competitors. This unfair competitive behavior not only affects the fair competition environment of the market but also leads to resource waste and inefficient allocation. False advertising can also affect the reputation and development of the industry, leading to a decrease in consumers' overall trust in the industry, which in turn affects the healthy development of the entire industry.

From the perspective of the social environment, the existence of false advertising increases social costs and wastes social resources. Consumers need to spend more time and effort to filter and discern real product information, which invisibly increases social costs. At the same time, false advertising may also trigger a social trust crisis, damaging social credibility. When consumers are repeatedly deceived by false advertising, they will become suspicious of all advertisements in the market and even lose confidence in the entire market. This trust crisis can adversely affect social stability and development, undermining social harmony and stability.

Therefore, we must attach great importance to the harmfulness of false advertising, strengthen advertising supervision, severely crack down on false advertising behavior, protect consumers' legitimate rights and interests, and maintain the stability and development of the market economy order and social environment.

In the domestic legislative system, the regulation of false advertising mainly relies on the Advertising Law, the Consumer Rights Protection Law, the Anti-Unfair Competition Law, and other laws and regulations, scattered in departmental regulations such as the Internet Advertising Management Measures. These laws clearly stipulate that advertising content should be true, legal, and fair, and strictly limit and punish the behavior of publishing false advertisements. However, despite the establishment of a legislative framework, a series of problems still exist in actual implementation.

The legal provisions are relatively vague and difficult to operate specifically. For example, regarding what constitutes "false advertising" and how to determine whether an advertisement "misleads consumers," the law does not provide clear definitions and quantifiable standards. This leads to a significant degree of subjectivity in enforcement, as enforcers often need to execute based on their own understanding and judgment, which can easily lead to disputes and dissatisfaction.

Insufficient enforcement力度 is also an important factor restricting the governance of false advertising. Although the law stipulates punitive measures for false advertising behavior, in practice, due to limited enforcement resources and high enforcement costs, the crackdown on false advertising behavior is often insufficient. Many advertisers and publishers thus take chances and dare to risk publishing false advertisements, exacerbating the proliferation of false advertising.

The lack of industry self-discipline mechanisms is also an important reason for the persistent problem of false advertising. Currently, there is no complete advertising industry self-discipline mechanism established domestically, and advertisers and publishers lack the motivation for self-restraint and supervision. Driven by the pursuit of maximum profit, some advertisers and publishers often ignore the truthfulness and legality of advertisements, violating regulations to publish false advertisements, severely harming consumers' legitimate rights and interests.

The Advertising Law clearly stipulates the applicable subjects and objects of advertising, including advertisers, advertising operators, advertising spokespersons, and consumers. Advertisers, as the main disseminators of advertisements, bear the primary responsibility for the truthfulness of advertisements. Whether in traditional media such as television, radio, newspapers, and magazines, or in new media platforms such as websites and social media, they must strictly comply with the Advertising Law of the People's Republic of China and other relevant regulations to ensure that the published advertising content is true, legal, and compliant. For example, on August 23, 2024, the Quzhou Market Supervision Administration imposed a penalty of 32,500 yuan on a certain e-commerce limited liability company in Quzhou for publishing illegal advertisements. This penalty serves as a warning against the company's behavior of publishing false advertisements and deceiving and misleading consumers.

Advertisers, as the designers, producers, and agents of advertisements, also need to take responsibility for the authenticity of advertisements. They must ensure the truthfulness of the advertisement content and must not publish false advertisements in pursuit of economic benefits. When designing and producing advertisements, advertisers should follow the relevant laws and regulations to ensure the authenticity and compliance of the advertisement content.

Advertising spokespersons are also an important guarantee of advertisement authenticity. Celebrities, experts, and ordinary consumers, as advertising spokespersons, must ensure that the advertisement content they endorse is true and legal. They cannot endorse false advertisements for personal gain, harming consumers' interests. When endorsing advertisements, advertising spokespersons should fully understand the product's performance, efficacy, and safety to ensure the authenticity and credibility of the advertisement content.

Consumers, as the recipients of advertisements, should also have the ability to discern the truthfulness of advertisements. When encountering false advertisements, consumers should report and protect their rights in a timely manner to safeguard their legitimate rights and interests. At the same time, consumers should also enhance their self-protection awareness, not blindly believe in the promotional effects of advertisements, and consume rationally.

In the advertising market, false advertising, misleading consumers, concealing important information, fabricating evidence, and other false advertising behaviors are common illegal activities. To effectively combat these behaviors and protect consumer rights, it is necessary to accurately identify and severely punish these behaviors.

False advertising is a chronic problem in the advertising market. This behavior usually manifests as exaggerating product performance, functions, and effects, fabricating product sources, qualifications, and other information. In the cosmetics field, this false advertising behavior is particularly prominent. For example, some cosmetic advertisements claim that their products have miraculous beauty effects, but the actual effects are vastly different. This behavior not only misleads consumers but also damages the overall reputation of the industry. To identify false advertising behavior, we need to carefully compare the advertisement content with the actual product performance, functions, effects, etc., to see if there are obvious discrepancies. Once confirmed, measures should be taken promptly to combat it.

Misleading consumer behavior is also worthy of attention. This behavior usually misleads consumers about products or services through vague language, ambiguous statements, etc. For example, a cosmetic advertisement claims that its product can "quickly improve skin quality," but in reality, it only temporarily covers up skin issues. This misleading promotion can lead consumers to have incorrect perceptions, resulting in the purchase of products that do not meet their needs. To identify misleading consumer behavior, we need to carefully examine the expression methods of the advertisement content to see if there are ambiguities or vagueness. If so, measures should be taken promptly to correct it.

Concealing important information is also a common illegal behavior in the advertising market. This behavior usually manifests as deliberately concealing important information about products or services in advertisements, such as hiding product defects, risk warnings, etc. For example, a cosmetic advertisement promotes its beauty effects without mentioning potential allergic reactions or skin irritation that the product may cause. This behavior not only violates relevant advertising laws but may also harm consumers' health. To identify the concealment of important information, we need to carefully check whether the advertisement content is missing important information and whether this information could harm consumers.

Fabricating evidence is an even more serious illegal behavior. This behavior usually manifests as fabricating false proof documents, qualification certificates, etc., in advertisements. For example, a cosmetic advertisement claims that its product has been certified by an authoritative organization, but in reality, it has not. This behavior not only deceives consumers but also damages the credibility of the industry. To identify fabricated evidence, we need to carefully verify whether the proof documents, qualification certificates, etc., in the advertisement are authentic and valid. Once fabricated behavior is discovered, measures should be taken promptly to combat it.

In addition to the above behaviors, there are other false advertising behaviors that also need our attention. These behaviors may manifest in various forms, but they all share the common characteristic of violating advertising laws by publishing false advertisements. To identify these behaviors, we need to judge based on specific circumstances and in conjunction with relevant advertising laws. Once these behaviors are discovered, measures should be taken promptly to combat them to maintain the order of the advertising market and protect consumers' legitimate rights and interests.

In optimizing civil liability accountability channels, we first focus on expanding consumer rights protection channels. To ensure that consumers can more conveniently safeguard their legitimate rights and interests, a diversified consumer rights protection channel should be established. Among these, the establishment of online complaint platforms is particularly crucial. With the power of modern information technology, consumers can file complaints online anytime and anywhere, which not only avoids the cumbersome traditional complaint methods but also quickly feeds back consumers' complaint information to relevant departments, thus achieving timely problem resolution. At the same time, consumer associations also play an irreplaceable role in the rights protection process. By strengthening the construction of consumer associations, their ability and efficiency in rights protection can be further enhanced, providing consumers with more professional assistance.

In clarifying the standards for damage compensation, we need to establish specific compensation standards to address the losses caused to consumers by false advertising. The formulation of this standard should fully consider the actual losses of consumers and refine it according to the severity of the false advertising. For example, for property losses caused by false advertising, compensation should be based on actual losses; for mental losses, reasonable assessments should be made based on specific circumstances. Through such compensation standards, we can ensure that consumers can receive timely and reasonable compensation when harmed by false advertising, thus safeguarding their legitimate rights and interests.

Simplifying civil litigation procedures is also an important part of optimizing civil liability accountability channels. By optimizing civil litigation procedures, we can reduce consumers' litigation costs and improve litigation efficiency, thereby encouraging consumers to pursue civil liability for false advertising through judicial means. This includes simplifying the filing process, speeding up the trial process, and improving trial quality, among other aspects. Only by allowing consumers to feel the fairness and efficiency of the judiciary in the rights protection process can we truly stimulate their enthusiasm for rights protection, thereby promoting the in-depth development of false advertising governance.

Strengthening administrative supervision is an important means to ensure the order of the advertising market and prevent false advertising behavior. In light of the current situation of advertising market supervision, it is necessary to take a multi-faceted approach to comprehensively enhance supervisory effectiveness.

Collaboration and cooperation among regulatory departments are crucial. When combating illegal false advertising behaviors, it is necessary for various departments to strengthen communication and cooperation to form a joint force. For example, the case where the Quzhou Market Supervision Administration imposed administrative penalties on a certain e-commerce limited liability company for publishing illegal advertisements based on the "Advertising Law of the People's Republic of China" and the "Zhejiang Province Advertising Management Regulations" reflects the collaborative efforts among regulatory departments. Through information sharing and joint law enforcement, regulatory efficiency can be effectively improved, and illegal advertising behaviors can be discovered and dealt with in a timely manner.

Innovating and improving regulatory measures is also an important aspect. With the diversification of advertising forms and the broadening of dissemination channels, traditional regulatory methods have become difficult to adapt to the new market environment. Therefore, it is necessary to innovate regulatory measures, such as establishing a big data platform for advertising supervision, using big data, artificial intelligence, and other technological means to monitor and provide early warnings for advertisements in real-time. This can not only improve the accuracy and efficiency of supervision but also timely identify potential risk points to prevent problems before they occur. Increasing administrative penalties is an effective means to combat illegal false advertising behaviors. By raising the cost of violations, advertisers and publishers will be deterred from easily crossing legal red lines. The penalties imposed by the Quzhou Market Supervision Administration on a certain e-commerce limited liability company serve as a typical case, where strict penalties have had a deterrent effect and reminded other advertising entities to comply with laws and regulations and operate with integrity.