On November 1, 2021, the State Administration for Market Regulation promulgated the Guidelines for Law Enforcement Regarding Medical Cosmetology Advertisements (the “Guidelines”), which are highlighted below:
I. Definition and scope of application
The Guidelines are primarily intended to remind local market regulators at all levels of the key issues to be focused on in the supervision of medical cosmetology advertisements and provide them guidance in strengthening their supervision work.
Medical cosmetology in the Guidelines refers to the use of surgery, pharmaceuticals, medical devices, and other invasive medical technologies or methods to repair and reshape the appearance and shape of various parts of the human body. Medical cosmetology advertisements refer to commercial advertisements that directly or indirectly introduce medical cosmetology institutions or services through certain media or forms.
Medical cosmetology advertising is a type of medical advertising; the advertiser is required to be a licensed medical institution to publish, or commission the publication of, medical cosmetology advertisement. An advertiser publishing a medical cosmetology advertisement should obtain the Medical Advertisement Examination Certificate, while an advertising agent or publisher that designs, produces, serves as an agent for or distribute medical cosmetology advertisements is required to submit its Medical Advertisement Examination Certificate for review, and the advertisement published shall be strictly limited to the approved contents. However, if a medical cosmetology institution proactively discloses medical cosmetology information pursuant to the Law on the Protection of Consumer Rights and Interests, the E-commerce Law, and any other laws and regulations according to the contents, formats, and channels required by the sanitation and health administrative authority under the State Council, such information shall not be deemed as commercial advertising due to the lack of a commercial purpose.
II. Cleanup the main points of chaos
Market regulators will clean up the current chaos in medical cosmetology advertising step up their efforts to address the most common harmful and often-complained about issues, and concentrate on combating the following circumstances:
(1) Violating good morals of society by creating “appearance anxiety” and improperly associating poor appearance with “incompetence,” “laziness,” “poverty” and other negative factors, or inappropriately linking outstanding appearances with “excellent quality,” “diligence,” “success,” and other positive factors.
(2) Violating laws and regulations concerning pharmaceuticals, medical devices, and advertising by advertising pharmaceuticals or medical devices that have not been approved or recorded by the drug administrative authorities.
(3) Promoting clinical disciplines and service items that have not been approved or recorded by the sanitation and health administrative authorities.
(4) Promoting the efficacy of a treatment or guaranteeing the safety or efficacy of a treatment.
(5) Using the name or image of an industry association or other social associations or organizations as proof [of efficacy], or using the name or image of a patient for providing a before-and-after comparison or proof [of efficacy].
(6) Using an advertisement endorser to recommend or vouch for medical cosmetology. The “recommenders” or “experiencers” who appear in medical cosmetology advertisements to endorse or vouch for medical cosmetology in their own name or image shall be considered as advertisement endorsers.
(7) Publishing a medical cosmetology advertisement in a disguised manner through the introduction of health and health-promotion knowledge, interviews of individuals, news reports or other forms.
(8) Promoting a disease treatment function related to medical cosmetology for foods, health foods, sterilization products, and cosmetics.
(9) Engaging in any other act that violates advertising laws and regulations or seriously undermines the rights and interests of the public.
III. Requirements for medical cosmetology advertisements involving “doctors” or “experts”
If a medical cosmetology advertisement involves “doctors” or “experts,” market regulators should pay attention to the following circumstances.
(1) If the name or image of any health technician, medical education and scientific research institution, and their personnel that appears in a medical cosmetology advertisement are verifiable, the advertisement shall be deemed illegal for retaining a doctor or expert to endorse the medical advertisement.
(2) If individuals who do not possess the qualifications to practice as physicians or hold positions related to medical education or scientific research are being represented as “doctors,” “medical experts,” or other medical professionals in an advertisement to an extent sufficient to mislead the consumers into believing that they are actual doctors or medical professionals, such an advertisement shall be deemed as a false medical cosmetology advertisement. If the relevant personnel are illegally practicing medicine, it shall be reported to the sanitation and health administrative authority of the same level immediately.
(3) If the address or contact method of a related medical cosmetology institution appears in a special interview or report of a health technician or medical education or scientific research institution personnel, the program shall be deemed as a disguised medical cosmetology advertisement in the form of an introduction of health or health-promotion knowledge, interviews of individuals, news reports, etc.
IV. Other supervisory requirements
If the market regulator detects an institution engaging in medical cosmetology activities without a practice license or recordation in the course of medical cosmetology advertising supervision, or that a non-medical institution, such as a beauty institution, engaging in medical cosmetology advertising or promotion, they shall be reported to the sanitation and health administrative authority of the same level immediately.
If the market regulator in the course of medical cosmetology advertising supervision finds a relevant advertiser to be without approval or has published a medical advertisement without following the contents of their Medical Advertisement Examination Certificate, the market regulators shall handle such matters in accordance with the Advertising Law and notify the sanitation and health administrative authority of the same level.
If unlawful conduct detected in the course of medical cosmetology advertising supervision may involve criminal activities, market regulators at all levels shall refer such matters to the public security agencies pursuant to the relevant requirements.
All levels of market regulators are required to guide and cause network platforms to set up a sound internal review mechanism and intercept promotional information from illegal and unlawful medical cosmetology advertisements in the course of their advertisement publishing and providing Internet information services. If a network platform operator fails to perform its responsibilities, the market regulators shall impose strict penalties in accordance with law.
For further information, please contact:
Karl Zhang, Lee Tsai & Partners
lawtec@leetsai.com
