Nghị định 24/2003/NĐ-CP Hướng dẫn Pháp lệnh Quảng cáo

DECREE

DETAILING THE IMPLEMENTATION OF THE ORDINANCE ON ADVERTISEMENT

THE GOVERNMENT

Pursuant to the Law on Organization of the Government of December 25, 2001;
Pursuant to Advertisement Ordinance No. 39/2001/PL-UBTVQH10 of November 16, 2001;
At the proposal of the Minister of Culture and Information,

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1.-

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2. Political information is not subject to the regulation by the Advertisement Ordinance and this Decree.

Article 2.- A number of terms and expressions in the Advertisement Ordinance are construed as follows:

1. Advertisement of profit-making services means advertising economic and social services, aiming to generate profits for service-providing organizations or individuals.

2. Advertisement of non-profit services means advertising services for realizing the social policies and information in form of announcements, messages or classified advertisements.

3. Advertising time volume means the time volume for broadcasting advertisements on radio or television; or advertising time volume in films, video tape or disk, audio tape or disk programs or cultural and sport activity programs.

4. Advertising time volume percentage means the time volume calculated in percentage of the advertisement-broadcasting time on the total time volume for broadcasting programs of a radio or television channel in a day, or of the advertising time volume on the total programmed time of a film, a video tape or disk, audio tape or disk or a cultural or sport activity program.

5. Advertising space means areas for publishing and printing advertisements on printed newspapers; space for displaying advertising products on billboards, signboards or panels; space for drawing and painting advertisements on transport means, illuminating objects, aerial or aquatic objects, other moving objects as all as other similar forms of displaying advertising products.

6. An advertising drive means a period of time for consecutively publishing an advertising product on printed newspapers, or consecutively broadcasting it on radio or television, a time period for continuous advertising on banners, illuminating objects, aerial or aquatic objects and other moving objects.

7. Specialized advertising program means a period of time for continuously broadcasting on radio or television advertising products, which lasts for over 10 minutes.

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Article 3.- A number of acts strictly prohibited in advertising activities prescribed in Article 5 of the Advertisement Ordinance are specified as follows:

1. Making advertisements of national or racial discrimination nature or infringing upon the belief or religious freedom;

2. Making advertisements of violence-inciting or horrifying nature; or using unhealthy words or phrases;

3. Using images of Vietnamese Party and/or State leaders;

4. Making advertisements not true to the actual quality of advertised goods and/or services; with false addresses of production, business or service-providing establishments;

5. Forcing advertisements in any form;

6. Making advertisements which restrict the vision of persons joining in traffic or affect the solemnity at working offices of the State agencies; using sounds which cause noises exceeding the permitted noise level according to the Vietnamese standards;

7. Making advertisements which defame, compare or cause confusions with other production, business or service-providing establishments; using names or images of other organizations and/or individuals for advertisements without their consents;

8. Advertising curative medicines, which are sold only at physicians’ prescriptions; medicines not yet granted registration certificates or with expired registrations and put out of the list of medicines permitted for use; medicines already registered but suspended from circulation; medical instruments and equipment not yet permitted for use, medical services not yet permitted to be provided in Vietnam;

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Chapter II

ADVERTISING ACTIVITIES

Article 4.-

1. Advertising information on business activities must be truthful, accurate and consistent with the already registered business scope and lines.

2. Advertising information on goods and profit-making services must demonstrate in a truthful and accurate manner their actual specifications, quality, utilities, labels, designs, categories, packing, origins, service modes, use, preservation and warranty durations.

3. Advertising information on non-profit services must be truthful and accurate, correctly reflecting service requirements, capabilities and quality.

Article 5.-

1. For advertising products displayed on billboards, signboards, panels, banners or in similar forms, their serial numbers and duration of advertisement permits and names of applicants therefor must be inscribed thereon.

2. For advertising products displayed on posters, the serial numbers of publication permits therefor, names of publication permit applicants, names of printing establishments and numbers of printed copies must be inscribed thereon.

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Article 6.-

1. Specialized advertising pages or supplements of printed press must be permitted by the Ministry of Culture and Information. The number of specialized advertising pages must not exceed that of principal newspapers and shall not be counted into selling prices.

2. Advertisements must not be made on front pages or front covers of dailies, periodicals, magazines, special issues and supplementary issues, except for specialized advertising newspapers.

Article 7.-

1. Advertisements must not be made immediately after musical themes or symbol images of radio and television programs, except for movies, art, sport and entertainment programs.

2. Each broadcasting drive for an advertising product on radio or television must not exceed 8 days, except for the following cases:

a/ For sponsored advertisements associated with an activity which continuously takes place for more than 8 days, the duration of such continuous activity shall be regarded as an advertising drive;

b/ For advertisements of non-profit services aiming to materialize the social policies associated with an activity which continuously takes place for more than 8 days, the duration of such continuous activity shall be regarded as an advertising drive;

Article 8.-

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2. Each television movie program must not be interrupted for advertisements more than twice, and each time must not exceed five minutes; each entertainment program on radio or television must not be interrupted for advertisements more than four times, and each time must not exceed five minutes.

3. Advertisements for business activities, goods or services of an advertiser or an advertising service provider must not exceed 50% of the time volume for each advertising time on radio or television.

Article 9.- Heads, editors-in-chief, general directors or directors of press agencies shall be responsible for the contents, presentations, positions, time volumes or spaces of advertisements on their press media.

Article 10.- Agencies, organizations and enterprises dealing in advertising services on computer information networks must be granted licenses therefor by the Ministry of Culture and Information and have certificates of advertising service business registration.

Article 11.-

1. Directors of publishing houses shall be responsible for advertising products and positions of advertisements on their publications, which are published under plans.

2. Advertisements on publications which require publication permits must be permitted by the State management agencies in charge of publication according to the provisions of the Publication Law.

Article 12.- Advertisements on billboards, signboards, panels, screens, banners, illuminating objects, aerial or aquatic objects, other moving objects or in similar forms, which are hung, put up, stuck or installed outdoor or at public places, are prescribed as follows:

1. Not to hide over 10% of the space of an advertising product which has previously been put up and not yet had its duration expired, in front of, at a distance of 200 meters from and/or at a 90o angle with the existing advertisement;

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3. In urban centers, advertisements occupying large outdoor spaces, not in line with the urban planning and affecting social safety, beautiful views and environmental landscapes shall be limited.

Article 13.- Advertising products at festivals, conferences, seminars, art performances, cultural exchanges, physical training and sport competitions must not be hung, put up, stuck or installed at a height equal to or higher than logos or appellations of such programs; and the sizes of letters used on such advertising products must be smaller than those of appellations of such programs.

Article 14.- Advertisements on other advertising media such as parasols, trolleys, cargo boxes, fence roofs, flag ropes and other articles shall require no permits but must comply with the provisions of the advertisement legislation and other relevant provisions of law.

Article 15.-

1. Organizations and individuals that wish to deal in advertising services must have business registration certificates as prescribed by law.

2. Within five working days, organizations and individuals dealing in advertising services, that wish to locate their branches or representative offices in other provinces or cities, shall have to notify the provincial-level business registration sections and Culture and Information Services of the localities where their branches or representative offices are expected to be located of the following contents:

a/ The enterprises’ names and headquarters addresses;

b/ Business lines or trades;

c/ Names and addresses of working offices of branches or representative offices;

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e/ Full names and places of residence of heads of branches or representative offices.

3. Advertising service business registration certificates granted by business registration sections of the district or equivalent level shall be valid for operations within the local provinces or centrally-run cities.

Article 16.- Organizations and individuals that wish to have their non-profit services advertised must produce documents to secure the truthfulness and accuracy of advertising information contents when so requested by the advertising service providers or advertisement distributors.

Article 17.-

1. Organizations and individuals making advertisements for business activities, goods and/or services must have business registration certificates as prescribed by law.

2. Advertisements for products and goods on the list of goods subject to the application and certification of Vietnamese standards must be granted certificates of Vietnamese standard compatibility by competent State agencies.

3. Advertisements for products and goods on the list of goods subject to the application and certification of branch standards or other standards require standard compatibility certificates granted by competent State agencies.

4. Those who make advertisements for medicines and raw materials for medicine production, cosmetics, vaccines, immune bio-products, medical instruments and equipment and foodstuffs must fully notify the contents of advertising products to the Health Ministry or the provincial/municipal Health Services authorized by the Health Ministry. In case of disapproval of advertising products, the Health Ministry or the provincial/municipal Health Services must notify such in writing to advertisers and advertising service dealers.

Within 10 working days after receiving the written notices, if the Health Ministry or the provincial/municipal Health Services make no written reply, the advertisers or advertising service dealers may make advertisements according to the notified contents.

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5. The advertisement of breast milk substitutes must comply with the provisions of law on trading in and use of breast milk substitutes.

6. For advertisements for biological products in service of cultivation, husbandry, livestock feeds, veterinary drugs, plant protection drugs, fertilizers and fertilizer preparations, plant varieties and domestic animal breeds, the contents thereof must be fully notified to the Ministry of Agriculture and Rural Development. In case of disapproval of the notified contents, the Ministry of Agriculture and Rural Development must notify such in writing to the advertisers or advertising service dealers.

Within 10 working days, after receiving written notices, if the Ministry of Agriculture and Rural Development makes no written reply, the advertisers or advertising service dealers may make advertisements according to the notified contents.

7. Advertisements for inventions, utility solutions, industrial designs, trademarks, appellations of origin of goods, geographical indications, trade names, copyrights and relevant rights must ensure the truthfulness of information related to the protection status of such objects according to the law provisions on industrial property and copyright protection.

Article 18.- Organizations and individuals that are engaged in many business lines, produce or trade in many types of products or goods under the same brand (firm appellation), when making advertisements therefor, must clearly state the contents of the business lines or types of products or goods to be advertised.

Article 19.-

1. Advertising products on the computer information networks shall fall under the responsibility of the heads of agencies, organizations or enterprises licensed to provide Internet services. Advertisements on screens installed at public places shall fall under the responsibility of the owners of such screens and comply with the following regulations:

a/ For advertisements on computer information networks, the advertising products must be sent to the Ministry of Culture and Information at least 10 working days before making the advertisements;

b/ For advertisements on screens installed at public places, the advertising products must be sent to the provincial/municipal Services of Culture and Information at least 10 working days before effecting the advertisements.

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2. For advertisements on billboards, signboards, panels and transport means, the advertising duration shall not exceed three years. When such duration expires, any prolongation must be permitted by the provincial/municipal Services of Culture and Information.

In case of changing the advertising positions, sizes or products, the permits of the provincial/municipal Services of Culture and Information are required.

3. Advertisements on banners, illuminating objects, aerial or aquatic objects and other moving objects about activities, which are expected to last for a definite period of time, shall be effected during such period, before such duration for not more than five working days and after such duration for not more than two working days.

In case of advertisements for an activity which is expected to last for an indefinite period of time, the duration of an advertising drive shall not exceed 15 working days. The interval between two advertising drives shall be at least eight working days.

Article 20.- Within 10 working days after receiving complete and valid dossiers, the Ministry of Culture and Information or the provincial/municipal Services of Culture and Information shall have to grant permits for making advertisements. In case of refusal to grant permits, written replies must be made, clearly stating the reasons therefor.

Chapter III

ADVERTISING ACTIVITIES INVOLVING FOREIGN ELEMENTS

Article 21.- Vietnamese organizations or individuals having advertising service business registration certificates granted by the provincial-level business registration sections may enter into investment cooperation with foreign organizations or individuals to deal in advertising services in forms of business cooperation contracts or joint ventures, and shall be allowed to commence their operations only after being granted investment licenses by competent State agencies.

Article 22.-

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2. The Ministry of Culture and Information shall contribute its comments in the evaluation of foreign-invested projects in the advertisement domain.

3. Within 15 working days after receiving complete and valid dossiers, the Ministry of Culture and Information shall have to give its written replies to the State agencies competent to grant investment licenses.

4. Contents of comments to be contributed to the evaluation of foreign-invested projects include:

a/ Degree of the projects’ compatibility with the advertisement planning;

b/ Advertising technical and technological levels of foreign organizations and individuals;

c/ Socio-economic benefits;

d/ Advertising scope and fields;

e/ Other law provisions on advertisement.

Article 23.- Organizations and individuals granted foreign investment licenses, shall, within five working days before commencing their operations, have to notify such in writing to the provincial/municipal Services of Culture and Information of the localities where they are headquartered, enclosed with notarized copies thereof.

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1. Foreign organizations and individuals dealing in advertising services shall be granted permits to establish their representative offices in Vietnam when they have advertising service business registration certificates or similar lawful papers according to the regulations of the countries, of which such organizations and individuals bear the nationalities.

2. The People’s Committees of the provinces or centrally-run cities, where foreign organizations and individuals dealing in advertising services wish to set up their representative offices, shall have to grant, modify, supplement or withdraw permits for establishing representative offices in the advertisement domain.

3. Rights and obligations of representative offices and persons working thereat:

a/ To exercise the rights and perform the obligations according to the legislation on advertisement;

b/ To conduct only operations according specific contents inscribed in their establishing permits;

c/ To be entitled to employ Vietnamese and foreigners to work at their offices. Persons working at representative offices must pay taxes as provided for by Vietnamese laws;

d/ To be entitled to open specialized payment accounts in foreign currencies and specialized payment accounts in Vietnam dong with foreign-currency origin at banks licensed to operate in Vietnam, and to use such accounts only for the representative offices’ operations. The representative offices have their own seals as provided for by the provisions of Vietnamese law;

e/ To make annual reports on the representative offices’ operations to the permit-granting agencies.

Article 25.-

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a/ Having advertising service business registration certificates or other similar lawful papers under the regulations of the countries where they are headquartered;

b/ Having operated for five years or more after making business registration and having run their representative offices in Vietnam for 7 years or more as from December 2001 without committing violations of Vietnamese laws.

2. The Ministry of Culture and Information shall grant, modify, supplement or withdraw permits for establishing branches to operate in the advertisement domain.

3. Rights and obligations of branches and persons working thereat:

a/ To operate according to the contents inscribed in their establishing permits;

b/ To be entitled to employ Vietnamese and foreigners. Those who work at branches shall have to pay taxes according to the provisions of Vietnamese law;

c/ To implement the prescribed accounting regime and to be only allowed to apply another common accounting regime according to the provisions of Vietnamese law;

d/ To make annual reports to the permit-granting agencies on their operations, make financial statements with certification by Vietnamese auditing agencies or independent auditing agencies licensed to operate in Vietnam. In case of necessity, at written requests of the competent agencies defined by the Vietnamese law, the branches shall have to report, supply documents or explain matters related to their operations.

Article 26.-

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a/ The application of the foreign organization or individual dealing in advertising services for permit to establish a representative office or branch (according to the form set by the Ministry of Culture and Information);

b/ Copies of the business registration certificate and similar lawful papers according to the regulations of the host country, which are certified by the competent agencies of foreign countries and their Vietnamese translations. Such copies must be notarized by the public notary office of the host country or certified by the foreign-based Vietnamese diplomatic mission or consular office.

2. Foreign organizations and individuals dealing in advertising services shall send dossiers of application for permits to establish representative offices or branches to the permit-granting agencies defined in Articles 24 and 25 of this Decree.

3. Within 15 working days after receiving complete and valid dossiers, the agencies competent to grant permits shall have to grant permits the establishment of representative offices or branches. In cases where dossiers are incomplete or invalid, the permit-granting agencies shall, within three working days after receiving such dossiers, notify such in writing to the foreign organizations and/or individuals dealing in advertising service, so that the latter supplement and complete their dossiers.

4. Operation contents and duration of representative offices and branches are specifically inscribed in their permits.

5. Within 45 working days after being granted permits, the representative offices and branches shall have to commence their operations and notify in writing the permit-granting agencies of the locations thereof, the numbers of Vietnamese and foreigners working at such representative offices or branches.

6. In cases where representative offices or branches of foreign organizations or individuals dealing in advertising services change their names, nationalities, the full names of representatives, the number of foreigners working at such representative offices or branches, the operation contents, the locations of the representative offices or branches, such changes must be notified to the permit-granting agencies.

Article 27.-

1. Permits for the establishment of representative offices or branches shall be withdrawn in the following cases where:

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b/ They operate for wrong purposes or inconsistently with the contents inscribed in their permits;

c/ The representative offices use their names to conduct advertising service business;

d/ They violate the provisions of Vietnamese legislation on advertising activities and relevant law provisions.

2. Representative offices and branches shall terminate their operations in the following cases:

a/ At requests of foreign organizations or individuals dealing in advertising services and having Vietnam-based representative offices or branches;

b/ When the competent State agencies issue decisions on the withdrawal or cancellation of permits according to the provisions of Vietnamese laws.

3. In case of operation termination according to the provisions at Point a, Clause 2 of this Article, foreign organizations and individuals dealing in advertising services shall have to notify in writing the termination of operation of their representative offices or branches to the permit-granting agencies at least 30 working days before the date of operation termination and return their permits to the permit-granting agencies.

Article 28.- Vietnamese organizations and individuals dealing in advertising services are allowed to advertise their business activities, goods and/or services in foreign countries according to the regulations of such countries and the provisions of the Vietnamese legislation on advertisement.

Chapter IV

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Article 29.- The Ministry of Culture and Information shall be answerable to the Government for performing the function of State management over advertisement throughout the country, having the following tasks and powers:

1. To elaborate and submit to the Government planning, plans and policies on advertising activities;

2. To elaborate and submit to the Government for promulgation or promulgate according to its own competence legal documents on advertisement;

3. To grant, modify, supplement or withdraw permits for the establishment of branches of foreign organizations and individuals dealing in advertising services; permits for advertisement on computer information networks; permits for publishing additional pages or supplements exclusively for advertisements for printed press; or exclusive advertisement channels or programs on radio or television;

4. To organize and direct the professional or managerial training and fostering of personnel engaged in advertising activities;

5. To inspect and examine the law observance in advertising activities; to settle complaints and denunciations and handle violations of the legislation on advertisement;

6. To organize and guide the enforcement of the provisions of advertisement legislation;

7. To organize and manage the international cooperation in the advertising domain;

8. To contribute opinions to the evaluation of foreign-invested projects in the advertising domain.

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Article 30.-

1. The Ministry of Trade shall, within the ambit of its tasks and powers, have to coordinate with the Ministry of Culture and Information in performing the State management over advertisement of goods and commercial services; draw up and submit to the Government for promulgation the list of goods and commercial services banned from advertisement.

2. The Ministry of Health shall, within the ambit of its tasks and powers, have to coordinate with the Ministry of Culture and Information in performing the State management over advertisement for medicines, raw materials for producing medicines, cosmetics, vaccines, immune bio-products, medical instruments and equipment, medical services and foodstuffs; promulgate the list of medicines already put out of the list of medicines permitted for use and already registered medicines which are suspended from circulation; elaborate and submit to the Government for promulgation the list of medicines banned from advertisement.

3. The Ministry of Agriculture and Rural Development shall, within the ambit of its tasks and powers, have to coordinate with the Ministry of Culture and Information in performing the State management over advertisement for bio-products in service of cultivation, husbandry, livestock feed, veterinary drugs, plant protection drugs, fertilizers, fertilizer preparations, plant varieties and domestic animal breeds.

4. The Ministry of Science and Technology shall, within the ambit of its tasks and powers, have to coordinate with the Ministry of Culture and Information in performing the State management over advertisements related to intellectual property objects.

5. The Ministry of Planning and Investment shall, within the ambit of its tasks and powers, have to evaluate foreign-invested projects in the advertising domain.

6. The ministries, the ministerial-level agencies and the agencies attached to the Government shall, within the ambit of their respective tasks and powers, have to coordinate with the Ministry of Culture and Information in performing the State management over advertisement.

Article 31.- The People’s Committees of the provinces and centrally-run cities shall perform the following tasks:

1. To grant, modify, supplement or withdraw permits for the establishment of representative offices of foreign organizations or individuals dealing in advertising services;

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a/ To work out planning on advertising activities;

b/ To work out planning on areas, streets and places where advertisements are permitted to be installed;

c/ To work out planning in terms of sizes, dimensions and number of advertisements in various forms for each area, thus securing traffic safety, urban beauty and safety in fire prevention and combat as well as construction structure.

d/ To grant permits for making advertisements according to the provisions in Clause 2, Article 16 of the Advertisement Ordinance;

e/ To organize and guide the implementation of the provisions of the advertisement legislation in their localities;

f/ To organize training and fostering courses to raise managerial and professional skills of advertising personnel;

g/ To assume the prime responsibility and coordinate with the local functional agencies in organizing the inspection, examination and settlement of complaints and denunciations and handling of violations according to their respective competence;

h/ To periodically report to the Ministry of Culture and Information on the granting of permits for making advertisements, planning on, inspection and examination of advertising activities in their localities.

Article 32.- The State Inspectorate in charge of culture and information shall perform the function of specialized inspection of advertisements according to the provisions of the inspection legislation, the Advertisement Ordinance and other relevant law provisions.

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Chapter V

IMPLEMENTATION PROVISIONS

Article 34.- Advertising service business registration certificates and advertising permits granted before the effective date of this Decree, which have not expired and are not contrary to the provisions of the Advertisement Ordinance and this Decree, shall still be effective for implementation.

Article 35.-

1. This Decree takes effect 15 days after it is published on the Official Gazette.

2. To annul the Government’s Decree No. 194/CP of December 31, 1994 prescribing advertising activities in the Vietnamese territory; and Chapter III (from Article 11 to Article 25) of the Government’s Decree No. 32/1999/ND-CP of May 5, 1999 on sale promotion, commercial advertisements and trade fairs and exhibitions.

The previous stipulations on advertising activities, which are contrary to the provisions of this Decree, shall all be hereby annulled.

Article 36.- The ministers, the heads of the ministerial-level agencies, the heads of the agencies attached to the Government, the presidents of the People’s Committees of the provinces and centrally-run cities, organizations and individuals engaged in advertising activities shall have to implement this Decree.

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ON BEHALF OF THE GOVERNMENT
PRIME MINISTER




Phan Van Khai