Su Bingtian Endorses Pregnancy Cosmetics
In the promotional materials of a pregnancy cosmetic brand "Kangaroo Mommy", Su Bingtian, as the "Brand Strength Witness", called on "For pregnancy skin care, choose Kangaroo Mommy." Su also said that his wife, Lin Yanfang, used Kangaroo Mommy during pregnancy and postpartum because she trusted the brand's professionalism. However, as the actual user of the product, Lin is not on the promotional materials.
Violation of the Advertising Law?
The legitimacy of Su's endorsement was questioned by the legal professional Huang Mengqi from Beijing Zhongwen (Shanghai) Law Firm. 1 According to Article 38 of the Advertising Law, an endorser shall not recommend or certify any product that has not been used or any service that has not been received by the endorser. Similar requirements are also made in the relevant compliance guidelines issued by Shanghai and Zhejiang Administration for Market Regulation.
Standing Committee of the National People's Congress
Article 38 of the Advertising Law of the People's Republic of China
An endorser shall, based on facts, recommend or certify products and services in advertisements in accordance with this Law and the relevant laws and administrative regulations, and shall not recommend or certify any product that has not been used or any service that has not been received by the endorser.
Shanghai Municipal Administration for Market Regulation
An endorser needs to use the products or receive the services before recommending or certifying them.
If the endorser is unable to actually use the products or accept the service due to his own conditions, he/she shall not endorse the product or service.
Zhejiang Administration for Market Regulation
Celebrities should personally experience and use the product or service before endorsement, ensure that the claimed efficacy and other content in the advertisement are consistent with the actual using experience, and preserve evidence related to the experience and use process. Do not recommend or certify any product that has not been used or any service that has not been received by the endorser.
Celebrities shall not symbolically use the product or receive the service to be endorsed, or substitute the actual experience with the experience of others such as relatives and friends.
Based on the above, Huang questioned whether Su's endorsement was legal. Pregnancy cosmetics are skin care products suitable for pregnant women. Su may have used the cosmetics from Kangaroo Mommy, but since he doesn’t belong to the special group of pregnant women, his use experience cannot reflect the original efficacies of pregnancy cosmetics on pregnant women. This means that Su's advertising slogan "For pregnancy skin care, choose Kangaroo Mommy" is recommending and certifying the product that he cannot prove whether it can achieve the claimed efficacy for pregnant women.
Article 38 of the Advertising Law requires the endorser to "use" the product before endorsing it. The understanding of "use" is crucial in law enforcement. Huang believes that the product use of the endorser should be sufficient to reflect the claimed efficacy, and the endorser should be fully conform to the product’s target user. Legal professionals from AllBright Law offices also hold similar views. 2 Their understanding of “use” is:
In general, the product use of the endorser is limited to the endorser’s own use and cannot be substituted by the use of relatives and friends. This means the exclusion of endorsing products exclusively for the opposite sex, that is, men's exclusive products cannot be endorsed by women, and women's exclusive products cannot be endorsed by men;
Even if the endorser can provide proof of purchase to prove that he/she has made a purchase, purchase is not equivalent to use.
Based on the above, Su’s endorsement of Kangaroo Mommy may be deemed to violate Article 38 of the Advertising Law.
Recently, the Chinese actress Jing Tian was fined 7.22 million yuan ($1.08 million) for her endorsement violating the Advertising Law. Advertising endorsement is a recent focus of supervision by the provincial administration for market regulation. If the product is specific to a certain group of people, the brand is recommended to choose an endorser who belongs to this group of people, so as to avoid being identified as an illegal advertising endorsement and damaging the brand image.