VietNamNet Bridge - In an imperfectly competitive environment leading to asymmetrical information as today, advertisement is a marketing tactic which plays an important role in the course of existence and development of the majority of enterprises.

Advertisement is a form of communication used to introduce products, goods, or services to the public with or without lucrative purpose. Currently, there are many viewpoints expressing that an advert must guarantee to comprise of the three following factors to be deemed lawful: (i) people conducting the advert are individuals and enterprises permitted by law to carry out promotional activities, (ii) the promoted products are subject by law to advertisement, (iii) the means and forms of advertising must comply with provisions of law.

Enterprises may conduct promotional activities by themselves or hire advertising agencies. However, in regards to foreign individuals and organizations not operating in Vietnam, it is required that Vietnamese advertising agencies be hired in the event those parties wish to advertise their products, goods, services, and/or activities in this country.   

At present, the portfolio of products, goods, and services prohibited from advertising includes:

-    Goods and services banned from trade as prescribed by law;

-    Cigarettes;

-    Wine containing 150 proof alcohol or above;

-    Dairy products being breast milk substitutes for children of under 24 months, dietary supplements for children under 6 months of age; artificial feeding bottles and pacifiers;

-    Prescription medication; non-prescription medication recommended by competent State agencies to use restrictively or under doctor’s supervision;

-    Pornographic products and goods;

-    Shotguns and cartridges, sporting weapons and products that might incite violence;

-    Other products, goods, and services banned from advertising specified by the Government as arise in practice.

Law on Advertising (2012), Law on Competition (2004), and Commercial Law (2005) all mention false advertising aimed at unfair competition, negatively impacting other enterprises and consumers. Notably, the Law on Advertising expressly lists prohibited acts in advertising, typically:   

-    Offending the prestige, honor, and dignity of other organizations and individuals.

-    Using pictures, sayings, or handwritings of other individuals without their consent, unless otherwise permitted by law.

-    Falsely advertising or causing confusion about the business competence and the ability to provide products, goods, and services; about the quantity, quality, price, features, design, package, brand name, origin, category, serving method, and warranty duration of the registered or announced products, goods, and services.

-    Directly comparing with the price, quality, and efficiency of products, goods, and services of other individuals and organizations.

-    Using words such as “best”, “the best”, “only”, “number one” or other words with similar meaning.

-    Advertising using unfair competition contents as stipulated by law provisions on competition.

-    Advertisements that violate law provisions on intellectual property.

-    Advertisements that cause children to think, speak, and act against traditional customs and ethics; negatively affect children’s health, safety, or natural development.

-    Hanging, placing, adhering, or painting advertisements on utility poles, traffic signal poles, and trees in public spaces.

Furthermore, advertising must be conducted via legally permissible promotional means such as: newspapers, websites, billboards, banners, signs, conventions, seminars, conferences, etc.

The voices and words used in advertisements must be Vietnamese, unless otherwise stipulated by law.

The content of a legitimate advertisement must guarantee to be honest, accurate, clear, and unharmful to manufacturers, traders and advertisement recipients. On the other hand, advertisement content for special products, goods, and services shall be prescribed by the Government.

For an advert to be deemed “lawful”, it is necessary for enterprises to have knowledge of other conditions specifically stipulated by laws, which are applied for certain situations, products, and services.

To prevent and treat advertising acts aimed at unfair competition, the Vietnam Government has issued Decree No. 158/2013/NĐ-CP stipulating penalties for administrative violations in regards to culture, sports, tourism, and advertising sectors. In this Decree, detailed fine levels for acts violating provisions on advertising are also clearly stated.

PLF – LAW FIRM