A pizzeria opening used the "French Concession" as a gimmick, leaving consumers dissatisfied and prompting the industry and commerce authorities to fine the business 47,500 yuan. Lawyers have warned that advertising slogans must not cross legal boundaries when being creative.
News Recap:
According to reports on February 26, a consumer dining at the Yongjia Road branch of Ma Shang Nuo restaurant noticed that the promotional advertisement booklet inside the store had the words "Ma Shang Nuo Pizza Grand Opening in the French Concession." The staff used "French Concession" to promote what they called "bourgeois sentiment" and "elegant integrity," and the restaurant's official website also contained promotional phrases about the "French Concession."
Shanghai’s Industry and Commerce Department investigated the matter, concluding that Ma Shang Nuo Pizza’s advertisements violated relevant provisions of the Advertising Law. By emphasizing the term "French Concession," they used China's history of colonial humiliation as a commercial selling point, evoking feelings of humiliation among the public and going against the mainstream values of socialist society.
On March 2, Shanghai’s Industry and Commerce Department issued a notice of administrative penalty hearing to Ma Shang Nuo Catering (Shanghai) Co., Ltd., proposing an administrative penalty of "ordering the cessation of publication, ordering public correction, and imposing a fine five times the advertising cost (RMB 47,500)."
Why did a single advertising slogan lead to such a high administrative penalty? This article invites professional lawyers to explain related legal issues for readers.
● Lawyer Interpretation
Using the "French Concession" as a selling point severely hurts national sentiments.
Lawyer Liu from the Beijing Daji Law Firm, a member of the Intellectual Property Professional Committee of the All-China Lawyers Association, said that the "French Concession" was a "leased territory" obtained by France through unequal treaties within China during the Opium War era, with administrative autonomy and consular jurisdiction. From its establishment in 1849 until it was reclaimed in 1943, the nearly century-long existence of the French Concession was essentially a historical witness to China's humiliation.
The "Advertising Law of the People's Republic of China" stipulates that advertising content should contribute to the physical and mental health of the people, uphold the dignity and interests of the country, and advertisements must not harm social public interests, violate good social customs, or contain ethnic discrimination.
Lawyer Xu Zhanqin from the Media and News Publishing Legal Professional Committee of the Beijing Lawyers Association said that Ma Shang Nuo Company’s use of the term "French Concession" in its opening advertisement directly evokes memories of the humiliating history endured by the Chinese people. It severely hurts national sentiments and dignity, providing a very unpleasant psychological experience, violating good social customs, harming public interests, and implicitly containing ethnic discrimination.
Therefore, the Shanghai Administration for Industry and Commerce's legal investigation of the merchant has a legal basis.
If an advertisement damages national dignity and the circumstances are serious, criminal responsibility may be pursued.
Liu explained that according to the Advertising Law, if a merchant's promotional advertisement contains content that damages national dignity, hurts national sentiments, violates good social customs, or harms public interests, the advertising supervision authority will order the responsible advertiser to stop publishing and publicly correct the advertisement. Simultaneously, advertising fees will be confiscated, and a fine ranging from one to five times the advertising fee will be imposed.
Lawyers warn that if the situation is severe, it may constitute a crime, resulting not only in fines but also possible criminal liability.
Consumers encountering illegal advertisements can file complaints with the industry and commerce department.
Xu Zhanqin calls on consumers to report such situations to the administrative departments for industry and commerce.
However, Liu also expressed regret that currently, there is no authorization for ordinary citizens to directly sue advertisers, operators, or publishers who violate laws on behalf of the public interest.
● Special Reminder
Advertisements seeking uniqueness should not cross legal boundaries.
Cases similar to Ma Shang Nuo are not uncommon: In 2001, a certain underwear brand used the phrase "perfect woman" in its advertising; a food advertisement even included the word "flirting"; in 2010, the tourism bureau of Yichun City was forced to halt an advertisement using the phrase "Yichun, a city calling for spring."
In June 2005, McDonald's aired an advertisement on a Chengdu TV station showing a customer kneeling down to "beg for discounts," which could be seen as "insulting customers." Under pressure, McDonald's stopped airing the advertisement and later issued an apology statement.
Lawyers stated that these advertisements were either banned or halted due to violations of public order and good morals.
Lawyers remind businesses that when conducting advertising campaigns, they cannot solely pursue sensational effects without considering societal impacts and audience psychology.
If merchants relentlessly pursue novelty without regard for basic social morality and good customs, they risk breaking the law. The consequences range from stopping the publication to being fined, and in more severe cases, criminal liability may be pursued.
By reporter Wang Hong