Nghị định 181/2013/NĐ-CP hướng dẫn Luật quảng cáo

DECREE

ON ELABORATION OF SOME ARTICLES OF THE LAW ON ADVERTISING

Pursuant to the Law on Government organization dated December 25, 2001;

Pursuant to the Law on Advertising dated June 21, 2012;

At the request of the Minister of Culture, Sports and Tourism,

The Government promulgates a Decree on elaboration of some Article of the Law on Advertising.

Chapter 1.

GENERAL PROVISIONS

Article 1. Scope of regulation

This Decree elaborates some Article of the Law on Advertising about contents of advertisements for special goods and services, advertisements on websites of foreign entities that provide cross-border advertising services and earn revenue from advertising in Vietnam; representative offices of foreign advertising companies, and state management of advertising.

Article 2. Subjects of application 

This Decree is applicable to the Vietnamese and foreign entities that engage in advertising in Vietnam.

Chapter 2.

CONTENTS OF ADVERTISEMENTS FOR SPECIAL GOODS AND SERVICES 

Article 3. Advertisements for medicines

1. The contents of medicine advertisements must be conformable with:

a) The License for free sale in Vietnam;

b) The instructions sheet approved by the Ministry of Health;

c) The treatise about the medicine has been written in the National Pharmacopoeia or a medicine recognized by a competent authority of the country of origin.

2. A medicine advertisement must contain:

a) The medicine names according to the decision on issuance of registration number;

b) Names of active ingredients;

International names of modern medicines shall be used;

Vietnamese names of herbal medicines. The original name together with the Latin name shall be used if no Vietnamese name is available.

c) Indications;

d) Contraindications or recommendations to pregnant women, breastfeeding women, the elderly, children, chronic disease sufferers;

dd) Name and address of the entity in charge of launching the product;

e) The text “Read the instructions correctly before use”.

3. The information mentioned in Points a, b, and e Clause 2 of this Article must be clearly spoken when advertising medicines on audio and video news. If the medicine contains 03 active ingredients or more, only the primary active ingredient or common names of vitamins, minerals and herbal ingredients may be spoken depending on the duration of the advertisement.

4. The advertisements for medicines on means of outdoor advertising must contain the information mentioned in Points a, b, dd, and e Clause 3 of this Article.

5. The following indications are banned from the medicine advertisement:

a) Tuberculosis, leprosy;

b) Sexually transmitted diseases;

c) Chronic insomnia;

d) Sexual stimulation;

d) Cancers, tumors;

e) Diabetes or similar metabolic disorders.

6. The following information and pictures are banned from medicine advertisements:

a) Pictures of patients;

b) Medicine effect diagram that has not been assessed;

c) Pictures or names of physicians.

Article 4. Advertisements for cosmetics

1. The contents of cosmetics advertisements must be conformable with:

a) The announcement of cosmetics prescribed in pharmacy laws;

b) Documents proving the safety and effects of the cosmetics, instructions on announcement of cosmetics effects given by an international association (if any).

2. A cosmetics advertisement must contain:

a) Names of the cosmetics;

b) Effects and uses of the cosmetics;

c) Name and address of the entity in charge of launching the product;

d) The warnings prescribed in international agreements.

3. Do not advertise cosmetics in a way that cause people to confuse them with medicines.

4. The information mentioned in Points a, b, and s Clause 2 of this Article must be clearly spoken when advertising cosmetics on audio and video news.

Article 5. Advertisements for foods and food additives

1. The contents of an advertisement for foods or food additives must be conformable with the Certificate of Declaration of conformity.

2. An advertisement for foods or food additives must contain:

a) Names of foods or food additives;

b) Name and address of the entity in charge of launching the product;

3. Advertisements for foods or food additives comply with Clause 2 of this Article and contain the details below:

a) Primary and secondary effects (if any);

b) The text or announcement “This product is not a medicine and is not a substitute for medicines”.

4. Do not advertise functional foods in a way that cause people to confuse them with medicines.

5. The information mentioned in Point a Clause 2 and Clause 3 of this Article must be clearly spoken when advertising functional foods on audio and video news.

Article 6. Advertising insecticides and germicides for families and health care

1. The contents of advertisements for insecticides and germicides serving families and health care (hereinafter referred to as insecticides and germicides) must be conformable with the Certificate of registration issued by the Ministry of Health.

2. An advertisement for insecticides or germicides must contain:

a) Names of insecticides or germicides;

b) Effects and uses of insecticides or germicides;

c) Name and address of the entity in charge of launching the product;

d) The text “Read the instructions carefully before use" or “Avoid applying to the items that contain chemicals in the list of chemicals restricted".

3. The information mentioned in Points a, b, and d Clause 2 of this Article must be clearly spoken when advertising insecticides and germicides on audio and video news.

Article 7. Advertisements for medical equipment

1. The contents of advertisements for medical equipment must be conformable for the Certificate of free sale (for medical equipment manufactured in Vietnam) or the import license (for medical equipment imported).

2. An advertisement for medical equipment must contain:

a) Name, category, manufacturer, and country of origin of medical equipment;

b) Features and uses, and preservation method (if any);

c) Name and address of the entity in charge of launching the product.

Article 8. Advertisements for dairy products and dietary supplements for children

1. The contents of an advertisement for dairy products or dietary supplements for children must be conformable with the Certificate of Declaration of conformity.

2. An advertisement for dairy products or dietary supplements for children:

a) Names of the dairy products or dietary supplements for children;

b) Name and address of the entity in charge of launching the product;

Article 9. Advertisements for medical services

1. The contents of advertisements for medical services must be conformable with the license to provide medical services of the medical facility or the practising certificate of the medical practitioner.

2. An advertisement for medical services must contain:

a) Name of the licensed medical facility;

b) The scope of operation written in the operating license or practising certificate issued by a competent authority.

Article 10. Advertisements for pesticides, ingredients of pesticides, plant protection supplies, useful organisms serving plant protection, veterinary medicine, and veterinary supplies

1. Contents of advertisements for pesticides, ingredients of pesticides, plant protection supplies must be conformable of the Certificate of pesticide registration.

2. Contents of advertisements for useful organisms serving plant protection must be conformable with the Certificate of plant quarantine.

3. Contents of advertisements for veterinary medicines and veterinary supplies must be conformable with the License for free sale and the summary of product features.

4. An advertisement for pesticides, ingredients of pesticides, plant protection supplies, useful organisms serving plant protection, veterinary medicine, or veterinary supplies must contain:

a) Names of the pesticides, ingredients of pesticides, plant protection supplies, and useful organisms serving plant protection, veterinary medicine, and veterinary supplies;

b) Features, effects, and recommendations;

c) Name and address of the entity in charge of launching the product.

Article 11. Advertisements for fertilizers and bioproducts for farming, animal feeds, bioproducts for breeding, plant varieties and animal breeds 

1. Contents of advertisements for fertilizers and bioproducts for farming, animal feeds, bioproducts for breeding, plant varieties and animal breeds must be conformable with the product quality certificate or announcement of product quality.

2. An advertisement for fertilizers and bioproducts for farming, animal feeds, bioproducts for breeding, plant varieties or animal breeds must contain:

a) Names of fertilizers and bioproducts for farming, animal feeds, bioproducts for breeding, plant varieties or animal breeds;

b) Origins of ingredients;

c) Name and address of the entity in charge of launching the product.

Article 12. Request for certification of contents of advertisements for special goods and services 

1. Advertisements for the special goods and services mentioned in Articles 3 to 11 of this Decree may only be published after their contents are certified by competent authorities.

2. The Ministry of Health, the Ministry of Agriculture and Rural Development, and the Ministry of Industry and Trade shall certify advertisements for the goods and services under their management.

3. Within 10 working days from the day on which the complete and valid application for certification of advertisement contents is received, the agency mentioned in Clause 2 of this Article shall issue a written certification of advertisement contents. Written explanation shall be made if the application is rejected,

Chapter 3.

ADVERTISEMENTS ON WEBSITES OF FOREIGN ENTITIES THAT PROVIDE ADVERTISING SERVICES ACROSS THE BORDER AND EARN REVENUE FROM ADVERTISING IN VIETNAM

Article 13. Subjects and requirements of cross-border advertising services 

1. Websites of foreign entities that provide cross-border advertising services and earn revenues from advertising in Vietnam are the websites from overseas services that provide advertising information for users in Vietnam.

2. Vietnamese entities must advertise their goods and services on such websites through advertising service providers that have been registered in Vietnam.

3. Tax on the revenues from advertising in Vietnam of such websites shall be paid in accordance with legislation on taxation.

Article 14. Conditions for advertising on websites of foreign entities that provide cross-border advertising services in Vietnam 

1. Websites of foreign entities that provide cross-border advertising services in Vietnam must comply with Vietnam’s laws on management, provision and use of Internet services and online information.

2. 15 days before advertising, the owner of such website must notify the following information to the Ministry of Culture, Sports and Tourism:

a) The name and address of the Vietnamese advertising service provider that is authorized to provide advertising services;

a) The primary line of business of the authorized advertising service provider.

Article 15. Capacity and responsibilities of advertising service providers

1. When executing contracts to provide advertising services on the website of a foreign entity that provides cross-border advertising services in Vietnam, the advertising service provider must:

a) Be an advertising company that is established and operated within Vietnam’s law;

b) Conclude a contract to provide advertising services with the foreign entity that provides cross-border advertising services.

2. Responsibilities of the advertising service provider when executing contracts to provide advertising services on websites of the foreign entities that provide cross-border advertising services in Vietnam:

a) Take responsibility for the advertisements;

b) Provide support and advertising services on such websites when Vietnam’s regulations on management, provision, use of Internet services and online information are complied with;

c) Send a report every 06 months on the provision of advertising services to the Service of Culture, Sports and Tourism of the province where the head office of the advertising service provider is situated (using the form provided by the Ministry of Culture, Sports and Tourism) or unscheduled reports at the request of competent authorities.

Chapter 4.

OUTDOOR ADVERTISEMENT PLANNING 

Article 16. Requirements outdoor advertisements

1. Outdoor advertisements must not be located within the corridor of traffic safety, dykes, and the national grid.

2. Outdoor advertisements must not spoil urban landscape.

3. Political propagation serving social interests and commercial advertisements must be located in separate areas

Article 17. Outdoor advertisement planning dossier

An outdoor advertisement planning dossier consists of:

1. A written request for approval for the planning;

2. A written request for approval for the planning;

3. A draft scheme for outdoor advertising planning that consists of:

a) Analysis and assessment of natural conditions and socio-economic conditions that affect local outdoor adverting and its impact on national defense and security;

b) Analysis and assessment of local outdoor advertising;

c) Targets of outdoor advertising planning;

d) Estimated area of land for outdoor adverting boards according to the planning;

dd) Plans for space and infrastructure for outdoor advertising in urban areas;

e) Suggestions of formats of outdoor advertising that need priority and resources;

g) 1:25,000 or 1:50,000 map of outdoor advertisements;

h) implementation plan and estimated budget;

i) Opinions and explanation of relevant organizations and individuals.

Article 18. Formulation, assessment, and implementation of outdoor advertisement planning dossier

The People’s Committee of the province shall formulate, assess, and implement the outdoor advertisement planning in the following order:

1. Draft the outdoor advertising planning project;

2. Seek opinions from relevant organizations and individuals;

3. Complete the dossier and approve the outdoor advertising planning;

4. Announce the decision on approval and post the project together with its drawing at the People’s Committees, and make announcement on the local media;

5. Organize the implementation of the planning and invite bides for outdoor advertising locations within the planning.

Article 19. Adjustment to outdoor advertisement planning

1. Outdoor advertising planning shall be adjusted when the local socio-economic development planning is adjusted.

2. Outdoor advertising planning shall be adjusted based on the analysis and assessment of the implementation of the previous planning.

3. The People’s Committees of the provinces shall approve the adjustments to outdoor advertising planning in accordance with Article 17 and Article 18 of this Decree.

Chapter 5.

REPRESENTATIVE OFFICES OF FOREIGN ADVERTISING COMPANIES IN VIETNAM

Article 20. The application, procedure for and the power to issue the license to establish a representative office 

1. The application for the license to establish a representative office consists of:

a) A written request for the license to establish a representative office signed by the representative of the foreign advertising company (using the form provided by the Ministry of Culture, Sports and Tourism);

b) A copy of the Certificate of Business registration or a similar certificate of the foreign advertising company certified by the local authority;

c) An audited financial statement or a similar document proving the existence and operation of the foreign advertising company in the latest fiscal year;

d) The papers mentioned in Point b and Point c of this Clause must be translated into Vietnamese language, certified and consularly legalized by a diplomatic mission or consular office of Vietnam overseas.

2. Procedure for issuing the license to establish a representative office:

a) The foreign advertising company shall submit 01 application for the license to establish a representative office to the People’s Committee of the province where its representative office is situated;

b) Within 10 days from the day on which the complete and valid application is received, the People’s Committee shall consider issuing the license to establish a representative office and send a copy of the license to the Ministry of Culture, Sports and Tourism;

c) If the application is not complete, within 03 working days from the day on which the application is received the People’s Committee of the province shall quest the applicant to complete the application;

d) Within 45 days from the issuance date of the license, the representative office must commence its operation and send the People’s Committee of the province a notification its inauguration date, its location, the number of Vietnamese employees and foreign employees in the representative office, and the operations of the representative office.

Article 21. The cases in which the license to establish a representative office is not issued

1. There is evidence that the establishment of the representative office threatens the national sovereignty, national defense and security, culture, ethical values, fine traditions and customs of Vietnam.

2. The applicant fails to complete the application at the request of the license issuer.

3. Other cases prescribed by law.

Article 22. Amendments to the license to establish a representative office

1. The foreign advertising company must request the permission to amend the license to establish a representative office in the following cases:

a) Its name is change;

b) Its operations are changed;

c) The representative office manager is change;

d) Its location is changed within a province.

2. The application for amendments to the license to establish a representative office consists of:

a) A written request for permission to amend the license to establish a representative office signed by the representative of the foreign advertising company (using the form provided by the Ministry of Culture, Sports and Tourism);

b) A certified true copy of the license to establish a representative office.

3. Within 10 days from the day on which the complete and valid application is received, the People’s Committee shall issue the amended license and send a copy of the license to the Ministry of Culture, Sports and Tourism.

Article 23. Reissuance of the license to establish a representative office

1. The license to establish a representative office shall be reissued in one of the following cases:

a) Its name is changed or the foreign advertising agency is moved to another country;

b) The operations of the foreign advertising company are changed;

c) The license is lost or damaged.

2. Within 07 working days, the foreign advertising company shall complete the procedure for reissuance of the license to establish a representative office.

3. The application for the reissuance of the license to establish a representative office consists of:

a) A written request for the reissuance of license to establish a representative office signed by the representative of the foreign advertising company (using the form provided by the Ministry of Culture, Sports and Tourism);

b) The original license to establish a representative office. If the license is lost, the loss must be certified by the local police station.

4. The procedure for reissuing the license to establish a representative office is similar to that in Clause 2 Article 20 of this Decree.

Article 24. Revocation of the license to establish a representative office; representative office shutdown

1. The license to establish a representative office shall be revoked in the following cases:

a) The representative office is run in contravention of the license;

b) The representative office provides advertising services;

c) The representative office fails to send reports on its operation for 02 consecutive years;

d) The representative office is not inauguration within 06 months from the issuance date of the license to establish a representative office;

dd) No report is sent within 06 months at the request of the competent authority.

2. The license to establish a representative office shall be shut down in the following cases:

a) The shutdown is requested by the foreign advertising company, and this request is granted by the license issuer;

b) The license to establish a representative office is revoked as prescribed in Clause 1 of this Article;

c) The foreign advertising company is shut down in accordance with the law of its country.

3. In the cases mentioned in Point a and Point c Clause 2 of this Article, the foreign advertising company must send a written notification of the shutdown to the People’s Committee of the province where the representative office is situated at least 30 days before the shutdown, and return the license the license issuer.

Article 25. Fees for issuance, reissuance, and amendment of the license to establish a representative office 

1. Fees shall be paid when the foreign advertising company applies for the issuance, reissuance, and amendment of the license to establish a representative office.

2. The Ministry of Finance shall specify the fees, the management and use of the fees mentioned in Clause 1 of this Article.

Chapter 6.

STATE MANAGEMENT OF ADVERTISING

Article 26. Responsibilities of the Ministry of Culture, Sports and Tourism

The Ministry of Culture, Sports and Tourism is responsible to the Government for the state management of advertising nationwide, and has the following tasks and entitlements:

1. Formulate the policies and regulations on advertisements and request competent authorities to promulgate them;

2. Provide instructions and supervise the formulation of local outdoor advertising planning;

3. Establish councils to assess advertisements;

4. Provide training in advertising management;

5. Carry out inspections and impose penalties for violations pertaining to advertising as prescribed by law;

6. Seek international cooperation in advertising;

7. Other tasks prescribed by law.

Article 27. Responsibilities of relevant Ministries

1. The Ministry of Information and Communications are obliged to:

a) Perform the tasks in management of advertisements on newspapers, online, on print products, on products, postal and telecommunications services, IT services as prescribed by law;

b) Issue, amend, and revoke licenses to produce advertising channels on audio and video news;

c) Establish procedures for notifying adverting supplements of newspapers;

d) Inspect the adherence to legislation on advertising on newspapers, online, on print products, on products, postal and telecommunications services, IT services as prescribed by law.

2. The Ministry of Health, the Ministry of Agriculture and Rural Development, the Ministry of Industry and Trade are obliged to:

a) Cooperate with the Ministry of Culture, Sports and Tourism; manage the contents of advertisements for special goods and services under their management;

b) Organize the implementation of legislative documents on advertisements for special goods and services under their management;

c) Inspect the adherence to legislation on advertisements for the goods and services under their management.

3. Ministers, ministerial agencies, Governmental agencies, within the area of their competence, carry out management of advertising.

Article 28. Responsibilities of the People’s Committees of provinces

The People’s Committees of provinces are obliged to:

1. Issue, reissue, amend, and revoke licenses to establish representative offices of foreign advertising companies;

2. Organize the formulation, assessment, and implementation of local outdoor advertising planning;

3. Organize and provide guidance on the implementation of advertising laws locally;

4. Provide training in advertising management locally;

5. Carry out inspections and impose penalties for violations pertaining to advertising;

6. Send annual reports on local advertising activities to the Ministry of Culture, Sports and Tourism before December 31, and unscheduled reports at the request of competent authorities;

7. Other tasks prescribed by law.

Chapter 7.

IMPLEMENTATION 

Article 29. Effect

1. This Decree takes effect on January 01, 2014.

2. The Government's Decree No. 24/2003/ND-CP dated March 13, 2003 elaborating the implementation of the Ordinance on Advertising is abrogated from the effective day of this Decree.

Article 30. Responsibility for implementation

Ministers, Heads of ministerial agencies, Heads of Governmental agencies, Presidents of the People’s Committees of central-affiliated cities and provinces, relevant organizations and individuals are responsible for the implementation of this Decree.