Case Description

Article 9 (3) of the Advertising Law stipulates that advertisements shall not use terms such as "national level", "highest level", "best", etc. Terms that are the same or similar to the above terms, such as "world top", "global first", "unique in China", and "unique", are collectively referred to as absolute advertising terms. At present, at the legislative level, the Advertising Law has made prohibitive provisions on the absolute use of advertising language. At the law enforcement level, the law enforcement agencies' enforcement of absolute use of advertising language is too simple and rough, and operators are fined for any carelessness, resulting in operators turning pale when talking about "the most".

Lawyer Analysis

On February 25, 2023, the State Administration for Market Regulation issued a notice on the "Guidelines for the Enforcement of Absolute Terms in Advertising" (hereinafter referred to as "Announcement 6"). The "Announcement 6" clarifies the regulatory philosophy, enforcement considerations, and punishment standards of the market supervision department to the society. Among them, Articles 5 and 6 detail the situations where Article 9 (3) of the Advertising Law is not applicable in the enforcement of absolute terms in advertising by listing, as follows:

1. Absolute language that does not point to the promoted product. For example, "customer first" and "striving for perfect quality" only indicate the service attitude, business attitude, and pursuit goals of the commodity operator.

2. Absolute language that refers to the products being promoted, but does not have the objective consequences of misleading consumers or belittling other operators. (1) Used only for self comparison of products from the same brand or enterprise, such as promoting a certain floor of the same property to the public with the best lighting and highest cost-effectiveness compared to other floors; (2) Only used to promote consumption tips such as the usage method, usage time, and storage period of the product, such as the best tasting date and best shooting angle; (3) According to national standards, industry standards, local standards, and other recognized product grading terms, there are absolute terms that can explain the basis, such as "highest level" or "highest level" for specific "high-quality" Anji white tea advertisements; (4) The use of absolute terms in product names, specifications, registered trademarks, or patents, and the use of product names, specifications, registered trademarks, or patents in advertisements to refer to goods to distinguish them from other goods; (5) Awards and titles evaluated in accordance with relevant national regulations that contain absolute terms, such as the "national level" title; (6) Expressing objective temporal and spatial order or promoting factual information such as product sales, sales revenue, market share, etc. under specific time and geographical conditions.

In summary, it can be seen that the "Announcement 6" only restricts the use of absolute advertising language, rather than being broad and boundless. When publishing advertisements, operators should still carefully examine whether the advertisements they publish have semantic similarity, semantic relevance, and contextual exclusivity with absolute language. At the same time, they should be able to provide sufficient evidence to prove the authenticity of the advertising content, in order to avoid being recognized as using advertising language and being subject to administrative penalties.