Monthly Archives: January 2014

Advertising in Thailand – ‘Puff Advertising’ – Thailand’s Legal Regime against False, Misleading or Exaggerated Advertising

THAILAND ADVERTISING

PUFF ADVERTISING

.Thailand’s Legal Regime against False, Misleading or Exaggerated Advertising.

‘Puffing’, in the context of advertising, has been defined as “…an expression or exaggeration made by a salesperson or found in an advertisement that concerns the quality of goods offered for sale. It presents opinions rather than facts and is usually not considered a legally binding promise…” (as opposed to advertising in relation to smoking which may come to mind, subject of which is briefly touched upon below).

It is conceivable that the target audience of advertisements, mostly whom are end consumers of the subjects being advertised are vulnerable to be swayed by loose assurances, inflated representations and unrealistic projections, express or implied, rapt in the advertisement media, having been skillfully implemented by the ever ingenious advertising industry.

Hence, in the name of consumer protection and fair trade / competition, there need be stringent control devices in place to guard against ‘false / misleading advertising’.

National advertisement laws worldwide recognize this need, with national authorities such as the Advertising Standards Authority in the UK, the Federal Trade Commission in the US, and in Asia the State Administration of Radio, Film and Television, General Administration of Press & Publishing & Ministry of Industry and Information Technology in China, the Television and Entertainment Licensing Authority in Hong Kong, Fair Trade Commission in Japan, Advertising Standards Authority of Singapore and so on, as steadfast watchdogs.

One ride on the Bangkok Sky Train may suggest that in this consumer driven market, the questionable almost-miraculous effects of everyday products projected by advertisement media are somehow lacking regulation, so much so to instead appeal to proprietors and investors as a lucrative platform with a ‘free for all’ advertising regime.

This is not the case however, albeit with an apparently low level of enforcement, Thailand has clear, strict rules with regards to advertising, and in particular, rules against false / misleading advertising.

The local watchdog, the Consumer Protection Board a statutory creature of the Consumer Protection Act B.E. 2522 (A.D. 1979) (as amended) is empowered to institute legal proceedings under Section 10(7) of the Act, against inter alia, business operators who have advertisements which “…contain a statement which is unfair to consumers or which may cause adverse effects to the society as whole; that is, notwithstanding such statement concerns with the origin, condition, quality or description of goods or services…” (Section 22) – such statements expressly including statements which are “false or exaggerated” (Sub-section 22(1)). Other than litigious powers, wide powers to veto, and to effect corrective measures are granted to the statutory watchdogs, for instance under Sections 27 & 28 of the Act to require substantiation of claims made in advertisements.

A vague, perhaps contradictory, permissive exception is provided where “A statement used in the advertisement which an ordinary person knows that is not possible to be true is not prohibited for use in the advertisement under (1) [Sub-section 22(1)]”, leaving ample room for “over-exaggeration” or “obvious falsity”, placing the boundaries of “false or exaggerated” as an obscure middle-point and allowing for advertising to effectively stretch its imagination so long as it stretches beyond the reasonable logic of the ordinary person.  This seems to suggest that the more the advertisement exaggerates, or the more indirect the manner of exaggeration – the more likely it is to fall within this exception – as exaggeration is more often than not welcomed by the sales-motivated proprietors / advertising agencies – this exception could be read as an encouragement to ‘push it’, to exaggerate properties of the product to near-impossibility.

Apart from these benchmark provisions, specific legislation govern specific types of products such as foods, drinks, cosmetics, and pharmaceutical products all of which expressly prohibit false, misleading or deceptive advertising.

Advertising of food products are similarly regulated by the Food Act B.E. 2522 (A.D. 1979) (as amended), where Section 40 of the Act prohibits “false or deceptive” advertising of the quality, usefulness or origin of food. Section 41 prescribes that advertisements of food have to be pre-approved before advertising. Section 70 gives that ‘false advertising’ in contravention of the Act may attract imprisonment of not more than 3 years and/or a fine of not more than THB฿ 30,000.

With regards to pharmaceuticals, the Drug Act, B.E. 2510 (A.D. 1967) (as amended) stipulates that advertisements of drugs shall “…not be boastful of its therapeutic properties or of its ingredients…” and shall “…not falsely or exaggeratedly show its therapeutic properties…” as well as that advertisements under the ambit of this Act shall “…contain no certification or laudation of its therapeutic properties by any other person… (Section 88).

In addition, Section 89 bars ‘impolite advertising’ of drugs “…no sale of drugs shall be advertised impolitely, or by means of singing and dancing, or by showing the distress or suffering of a patient…”. Breach of these advertising regulations may attract penalties in the form of imprisonment of not more than 6 months and/or a fine of not more than THB฿ 10,000 (Section 124).

In relation to cosmetic products, Section 37 of the Cosmetic Act B.E. 2535 (A.D. 1992) (as amended) adopts consumer protection law in relation to advertising, mutatis mutandis, to the advertisement of cosmetics.

Advertising of medical instruments, governed by the Medical Device Act B.E. 2531 (A.D 1988) (as amended) explicitly prohibits false, misleading, exaggerated or deceptive advertising under Section 59 which stipulates that advertisements of medical devices shall “…not falsely or fraudulently…” promote the “…benefits, quality, quantity, standard, component or origin of the medical device…” and further may not contain any statement that may cause confusion or misunderstanding as to a material part related to the medical device. In addition, advertisements of medical devices have to be prior licensed.

Over & above the aforementioned –

An overarching criminal sanction is enshrined in Section 271 of the Thai Penal Code which criminalizes the employment of “…fraudulent or deceitful… means, in “…selling goods so as to deceive a buyer as to the source of origin, nature, quality or quantity of such goods…”, and may attract imprisonment of up to 3 years and/or a fine of not more than THB฿  6,000.

Apart from “Puff Advertising”, there is a rigid regulatory framework in place for the advertisement of tobacco & alcoholic products –

The Tobacco Product Controls Act B.E. 2535 (A.D. 1992) (as amended) and the Ministry of Public Health Notice Volume 15 B.E. 2554 (A.D. 2011) issued thereunder, in line with the Framework Convention on Tobacco Control (“FCTC”) explicitly bans the advertising of tobacco products whether via broadcast, newspaper, magazine or other “printed matter”. Notwithstanding, there exists a contentious exemption, contra to the FCTC, where the prohibition of tobacco advertising does not apply to ‘live broadcast from abroad radio or television’ or ‘printed matters printed outside’ Thailand.

The advertising of alcoholic beverages is also heavily restricted, regulated by the Alcoholic Beverage Control Committee. Section 32 of the Alcoholic Beverage Control Act B.E. 2551 (A.D. 2008) provided that alcoholic beverages “…may not be advertised in any manner that directly or indirectly claims benefits or promotes its consumption and may not show the product or its packaging…”. Advertisements must also be accompanied by 1 of 5 prescribed warning messages which is required to be displayed for at least 2 seconds for video advertisements and to occupy at least 25% of the advertisement area for print media.

It remains the case however, that the thresholds of ‘exaggerated’ or the ambit of ‘false’ lacks definitive boundaries, effectively empowering the relevant regulatory bodies with considerable discretion. The apparent idleness and inaction of the Consumer Protection Board to prosecute false or misleading advertisements has also come under criticism, necessarily linking back to the lack of legal provision to compel such prosecution. The law regulating false / misleading advertising remains wanting in its obscurity despite these cornerstone provisions clearly set in place, without much light shed on the subject whether by Court decisions, definitive directives or regulations issued under primary legislation or guidelines by the respective authorities, a shortcoming that could be read as a call for exploitation and a lack of effective consumer protection in this respect.

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For more information on the foregoing, please contact the author JOEL LOO SEAN EE, the Bangkok-based Senior Regional Counsel at Kelvin Chia Thailand and a member of Kelvin Chia Partnership’s Regional Practice Group at Joel.Loo@KCPartnership.com.

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This article is published to provide general information only and is not offered as specific advice on any particular matter – This information is to be taken subject to proper consultation with a lawyer.

All written material on BANGKOK LEGAL BLOG (BLB) including this post are the Copyright of Joel Loo Sean Ee. Any attempt to plagiarize or reproduce these materials in whole or in part, in verbatim or in paraphrase, or in any other form that it can be conceivable that such attempt is being made is an offense in law and will be an invitation by offenders to face charges and prosecution in a Court of Law.
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