Recently, Jing Tian, an actor, was punished by the market supervision and administration department for his illegal act of advertising endorsement.

What she needs to face: In addition to the confiscated illegal income and a fine of 7.22 million yuan, there may also be a three year employment restriction on advertising endorsement stipulated in the Advertising Law.

The employment restriction of not engaging in advertising endorsement within three years was newly added when the Advertising Law was revised in 2015. This clause is far more harmful to stars than Article 61 of the Advertising Law, which stipulates that “if an advertising spokesperson has one of the following circumstances, the market supervision and administration department shall confiscate the illegal income and impose a fine of not less than one time but not more than two times the illegal income”.

The third paragraph of Article 38 of the Advertising Law stipulates that “natural persons, legal persons or other organizations that make recommendations in false advertisements and prove that they have been subject to administrative penalties for less than three years shall not use them as advertising spokespersons”. How to understand and implement this provision?

I. How to calculate the starting time of the three years involved in administrative punishment</ strong>

Generally speaking, an administrative penalty involves several different dates:

First, the date of performance of the administrative penalty recorded in the written decision on administrative penalty;

The second is the date when the administrative penalty is issued;

Third, the date on which the written decision on administrative penalty was delivered to the party to be punished;

Fourth, if the administrative penalty is subject to administrative review and administrative litigation, the date of the administrative review decision and the date of the administrative litigation decision taking effect.

According to the wording of “less than three years since the administrative penalty was imposed” used in this article, the two dates of “the date of making the administrative penalty document recorded in the written decision on administrative penalty” and “the date when the written decision on administrative penalty was delivered to the punished party” are relatively consistent.

It is suggested that the market supervision and administration department should further clarify which date is applicable to facilitate better reference and implementation.

II. Is it retroactive to the stipulation that “no one can use it as an advertising spokesman for less than three years” (hereinafter referred to as “no endorsement for three years”)</ strong>

Since a star usually endorses more than one product, if a star is subject to administrative punishment for false advertising endorsement, how should we deal with the advertising endorsement that the star has completed before?

The author refers to the following three types of advertising endorsements that have been completed before:

1. The photo and video shooting of the advertising endorsement has been completed and the advertising launch has started, but the advertising launch cycle and the advertising endorsement cycle have not yet ended;

2. The photos and videos of advertising endorsements have been taken, and the time and platform for advertising broadcasting have been determined (but not actually broadcast);

3. The shooting of photos and videos of advertising endorsements has not been completed, and the time and platform for advertising broadcasting have not been determined.

If it goes back to the past

In the third case, the relevant impact caused by the ban on playing is relatively small.

In the second case, for the spokesperson, the advertiser and the advertising agent, the matters to be handled and the monetary compensation involved are more complicated.

First, for advertisers, the scope of matters to be handled and possible property losses will be expanded. They will not only stop broadcasting the original ads, but also find new advertising content to fill in, because the advertising platform and advertising time have signed a contract and still have to pay for it, and at the same time, they will eliminate the negative impact on the company and products that may be caused by changing advertising, As for the expenses incurred in the recovery of the original advertisement and the production and broadcasting of new advertisements, they may be far more than the endorsement expenses of the original stars.

If the rule of “no endorsement for three years” is retroactive, it may cause huge economic losses to previous advertisers, which may not be compensated by refunding star endorsement fees.

Lawyer Gan Guolong

Senior Partner of Shanghai Zhonghua Law Firm

Practice field:Real estate, company law

Lawyer Gan Guolong has more than 20 years of practical experience in the real estate industry since he worked in Golden Horse Group in 1995.

Some real estate legal items served are as follows:

The whole process legal service of Shanghai COSCO Liangwan City project, the whole process legal service of housing delivery of the “Sensheng Shiyang International Center” project of Shanghai Shunfeng Hotel Management Co., Ltd., the whole process legal service of housing delivery of the “Tongji Jiayuan” project of Shanghai Tongheng Real Estate Co., Ltd., the equity transfer of Shanghai Lvfu Real Estate Development and Operation Co., Ltd Full process legal services for the Shanghai Silicon Thin Film Solar Cell R&D and Production Project (Phase I) of Suntech Power Holding Co., Ltd., Lianyungang Vancouver Garden Project Financing and Bank Entrusted Loan Legal Services Project, special legal services entrusted by Vanke Shanghai Regional Head Office to inspect the legal risks of sales, investment promotion and delivery of projects developed by Wuxi Vanke Real Estate Co., Ltd Provide full process legal services for the land purchase and investment cooperation between China Network Software Global Holdings in Nanjing and Chengdu, and provide legal services for Suzhou Poly Real Estate Development Co., Ltd.

Lawyer Jiang Xiaohui

Double Degree in Law and Economics

Shanghai Zhonghua Lawyer

Lawyer Jiang Xiaohui has successively served as a lawyer in a number of domestic and foreign funded enterprises and listed enterprises, and is familiar with the company’s various legal affairs such as document handling and litigation disputes, especially in the field of biological medicine industry.