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This newsletter shall point out new notable provisions of Decree 38 in comparison with provisions of Decree No. 158/2013/ND-CP on penalties for administrative violations pertaining to advertising.

Overall, Decree 38 regulates to increase the level of fines for some particular violations and has entirely new regulations on additional penalties for some violations relating to certain fields as follows:

• Advertisements on means of advertising;
• Advertisements for special goods and services;
• Advertisements on newspapers, print products, electronic devices, terminal devices and other telecommunication devices.

1. Increase level of fines for some particular violations

Fines for almost all violations prescribed in this new Decree have increased. However, this newsletter only shows some kinds of violations for which the fines have remarkably increased:

The new Decree increases level of fines from VND 50.000.000 to VND 70.000.000 instead of from VND 40.000.000 to VND 50.000.000 as in the past, and applies for:

• Advertising tobacco;
• Advertising wine with 15% alcohol concentration and above;
• Advertising milk for babies under 24 months of age as a substitute for breast milk; supplementary food for children under 6 months of age; baby bottles and artificial nipples;
• Advertising prescription drugs or over-the-counter drugs that are recommended by competent authorities to be used limitedly or under the supervision of the physicians; drugs that are no longer valid for circulation registration;
• Advertising other prohibited products, goods or services;
• Fine ranging from VND 20.000.000 to VND 30.000.000 over violations of advertising on sex diagnosis and selection of embryos and fetuses;
• Advertising fertilizers.

Increase level of fines from VND 40.000.000 to VND 60.000.000 instead of from VND 30.000.000 to VND 40.000.000 as in the past over violations of:

(i)  Using advertisements to offend the reputation of another organization or insult another person’s honor and dignity;

(ii) Using advertisements that contain direct comparison between price, quality and effectiveness of a product or service of its own and another entity’s;

(iii) Advertisements containing actions, words, images, sounds, and letters that lead children to unethical thoughts, words or actions or adversely affect the health, safety or normal development of children;

(iv) Advertisements lacking aesthetics, contrary to historical traditions, culture, ethics or customs of Vietnam.

Increase level of fines from VND 80.000.000 to VND 100.000.000 instead of from VND 70.000.000 to VND 90.000.000 as in the past over violations of:

• Using advertisements that badly effect the respectability of the National flag, the National symbol, the National anthem, or the Socialist Party’s anthem, except for the advertisements in the stadium or another place where the event takes place eclipsing the national flag, national emblem, leader’s picture, or instructions board.
• Using advertisements that offend the respectability of national heroes, cultural celebrities, leaders of the nation or the Communist Party;
• Advertising that cause harm to national sovereignty.

2. Complementing the additional penalties

The government has regulated entirely new additional penalties that the old Decree did not have:

• Deprive the use of Receipt of product announcement registration from 05 months to 07 months; deprive the use of Confirmation of advertising content from 22 months to 24 months over advertising violations as follows: (i) using the words “best”, “only”, “number one” or any word with similar meanings without legitimate evidence; (ii) Using advertisements that contain direct comparison between price, quality and effectiveness of a product or service of its own and another entity’s; (iii) using advertisements that cause confusion over business ability, products, good services or supplying ability of organizations/individuals; (iv) advertisements of quantity, quality, price, use, design, packaging, brand, origin, type, service method, warranty method of registered or announced product, goods, services in case violations of advertising health protection food was committed twice or more within 06 months;
• Confiscating the illegal items over violations of advertisements using speakers and similar devices on radio system serving political objectives of the local governmental agencies, advertisements using speakers and similar devices on means of transport, means of mobile in inner cities, inner towns of cities, or towns;
• Deprive the use of Certificate of eligibility to trade in pharmaceutical products, product announcement registration receipt and license for medical examination and treatment from 01 month to 03 months over violations of advertising special products, goods or services without content validation of competent state agencies before advertising – prescribed in case advertising drugs, food, food additives, medical examination and treatment was in violation of law twice or more within 06 months.
• Deprive the use of product announcement registration receipt from 01 month to 03 months over violations of organizing fairs, seminars, conferences or exhibitions that distribute or present printed, audio-recorded, video-recording products, data storage devices introducing food products or food additives without content validation of competent state agencies – prescribed in case of violation of advertising health protection food twice or more within 06 months;
• Deprive the use of product announcement registration receipt from 03 months to 05 months; deprive of use of Confirmation of advertising content from 20 months to 24 months over violations of advertising using images, equipment, costumes, names, correspondence of agencies, medical facilities, doctors, pharmacists, medical staff, thank you letters, thank you notes of patients, articles of doctors, pharmacists or medical staff; advertising misleading functional foods as medicine; advertising food with contents of posting, quoting or comments of patients describing food with therapeutic effects – prescribed in case of violation of advertising health protection food twice or more within 06 months.
• Deprive the use of license for medical examination and treatment from 01 month to 03 months over violations of advertising medical examination and treatment services lacking contents of scope of expertise recognized in the license for medical examination and treatment;
• Deprive the use of license for medical examination and treatment from 03 month to 06 months over violations of advertising on the sex diagnosis and selection of embryos and fetuses; advertising, mediating the donation and receipt of human organs for commercial purposes.

Repeal of some provisions on inappropriate violations:

• Advertising tampons, condoms, medications for skin conditions, anthelmintics, feminine hygiene solutions, and similar products on radio or television during the period from 6 p.m. to 8 p.m. daily;
• Advertisements on electronic devices, terminal devices, and other telecommunication devices.

Above are some updated points of Decree No. 38/2021/ND-CP regulating on penalties for administrative violations pertaining to advertising. The above levels of fines are the levels for individuals. For same violations, the levels of fines for organizations are twice as much as for individuals. Except for violations against regulations on advertisement on electronic journals and websites, advertisement on newspapers and advertisements on audios and radio which are applied to organizations.

Writing date: 16/04/2021

The article is based on the current laws at the time of drafting as noted above and may no longer be appropriate at the time the reader accesses this article due to changes in applicable law and specific cases that the reader wants to apply. Thus, the article is for informational reference only.

Source: plf.vn