On May 28, 2022, # Jingtian claimed in the advertisement in its own name and image that the endorsement commodity had the effect of “preventing the absorption of oil and sugar” because it should know that the laws and regulations stipulated that ordinary food should not be publicized according to law for the efficacy of treatment and health care, and without verifying the relevant efficacy of the endorsement commodity through effective ways, and was subject to administrative punishment by the market supervision department of Guangzhou, Guangdong Province according to law, with a total penalty of 7.2212 million yuan.

According to Article 2 of the Advertising Law, an advertising spokesman refers to a natural person, legal person or other organization other than the advertiser who recommends and certifies goods and services in his own name or image in an advertisement; It should be noted that in the live broadcast activities, if the live broadcast content constitutes a commercial advertisement, participating in the live broadcast and recommending and proving goods and services in their own name or image should fulfill the legal responsibilities and obligations of the advertising spokesperson.

What risks should be avoided in celebrity endorsement

I. Areas that cannot be touched by advertising endorsements

1. Article 15 of the Advertising Law clearly stipulates that narcotics, psychotropic substances, toxic drugs for medical use, radioactive drugs and other characteristic drugs, pharmaceutical precursor chemicals, as well as drugs, medical devices and treatment methods for drug rehabilitation treatment, shall not be advertised. Advertising is not allowed, so endorsement is not allowed naturally.

2. The categories of special goods, such as medical treatment, drugs, medical devices and health food, specified in Articles 16 and 18 of the Advertising Law shall not be recommended or certified by advertising spokesmen. There is no room for adaptation.

3. Article 22 of the Advertising Law stipulates that it is prohibited to publish tobacco advertisements in mass media or in public places, public transportation vehicles, or outdoors. It is prohibited to send tobacco advertisements in any form to minors. It is prohibited to use advertisements of other goods or services, public service advertisements, or to publicize the names, trademarks, packages, decorations, and similar contents of tobacco products. Smoking is harmful to health. Stars should pay more attention to avoid entering soft tobacco advertisements by mistake.

4. Article 38 of the Advertising Law stipulates that advertising spokesmen shall not recommend or certify goods they have not used or services they have not received. An artist surnamed Li, who spoke for women’s underwear, violated this provision and should learn from it.

5. Article 38 of the Advertising Law stipulates that minors under the age of 10 shall not be used as advertising spokespersons. This has sounded an alarm for many stars’ parents. Although it is necessary to become famous early, we should still abide by the law.

6. Article 39 of the Advertising Law stipulates that advertising activities shall not be carried out in primary and secondary schools and kindergartens, and advertisements shall not be published or disguised by using textbooks, teaching aids, exercise books, stationery, teaching aids, school uniforms, school buses, etc. of primary and secondary students and children, except for public service advertisements.

Second, strengthen the background investigation of the endorsement products and their companies

After receiving an invitation to advertise a product or service, the star suggests that a professional be entrusted to carry out a background investigation on the products and brand companies he endorses, whether the products have relevant qualified production qualifications, whether they contain unsafe raw materials, and whether there are records of complaints. Whether the brand company has been subject to administrative punishment, and what is its political position, the brand company is required to issue relevant qualification certificates, including business license, trademark certificate, patent certificate, product qualification certificate or qualification certificates required by special industries.

III. Experience the products or services to be endorsed personally and guard against falsehood

1. Article 28 of the Advertising Law stipulates that an advertisement that deceives or misleads consumers with false or misleading content constitutes a false advertisement.

2. Article 38 of the Advertising Law stipulates that advertising spokesmen shall not recommend or certify goods they have not used or services they have not received.

3. In order to avoid being identified as endorsement of false advertisements and prohibiting endorsement for three years, stars should personally experience the goods and services they represent, and strictly compare the advertising words with the actual effect and quality of the goods. It shall adopt the habits and methods of ordinary consumers to use commodities or receive services, keep written records of using commodities or receiving services, and fulfill its own obligation of examination.

IV. The terms of the endorsement contract should be detailed, the scope of responsibility should be clarified, and the initiative to terminate the contract should be mastered

1. The rights and obligations agreed in the endorsement contract should be detailed as much as possible, such as the advertising mode, channel, platform, region, and time period of the endorsement product;

2. If the reputation of the brand company is damaged, the star has the right to unilaterally terminate the endorsement contract in advance, and the brand company should also bear a certain amount of compensation liability; If the behavior of the brand company and its affiliated companies and senior executives involves political sensitive issues, or the brand company is in a crisis of public opinion, the star has the right to immediately unilaterally terminate the endorsement contract in advance, and the brand company should immediately remove all advertisements being released and require the brand company to bear the responsibility for breach of contract. At the same time, the brand company is required to sign a letter of commitment to ensure that the advertising copy provided to the stars does not infringe the intellectual property rights of a third party.

3. For advertising endorsements involving goods and services related to life, health and property safety, stars should conduct necessary risk assessment and speak cautiously to avoid falling into criminal disputes such as illegal fund-raising or fraud.

V. Definition of the Identity of Advertising Spokesperson

1. In order to avoid the identity of the spokesperson, some stars recommend and prove with the so-called “experience officer”, “experience ambassador” and other titles. However, because these stars have a high degree of identity recognition, they still recommend and prove with their own image and use their own independent personality, which still conforms to the identity characteristics of the advertising spokesperson.

2. In the online live broadcast with goods activity, if the live broadcast content constitutes a commercial advertisement, and if a star makes recommendations and testimonials to goods and services in his own name or image, he or she is also recognized as an advertising spokesman, and shall fulfill the legal responsibilities and obligations of the spokesman.

3. In the performance of commercial variety shows, if there is a commercial advertising link, the stars participating in the performance, if they have recommended and certified the implanted goods and services in their own name, are also recognized as advertising spokespersons, and should fulfill the legal responsibilities and obligations of the spokespersons.

To sum up, stars cannot break through the legal boundaries and strictly abide by the moral bottom line when advertising endorsement. They strictly regulate the rights and obligations of both parties through endorsement contracts to promote good products and services to consumers safely and legally.

Lawyer Cui Dongming

Partner of Shanghai Zhonghua Law Firm

Master of Law, East China University of Science and Technology

Tel.: 13817584749

Cui Dongming is good at company, business, contract, advertisement, family affairs, labor and dispute resolution.

In the business field of the Company, Lawyer Cui provides perennial legal counsel and special legal services for enterprises, drafts and reviews legal documents, and has in-depth research and accumulated rich experience in the optimization of the Company’s internal governance structure, the prevention and control of internal and external legal risks, and the improvement of management systems. He is good at handling disputes related to the company (including equity transfer, shareholders’ right to know, liability for damaging the company’s interests, etc.), as well as new media promotion, litigation and arbitration in the field of marriage and family work.