On 4 October 2021, the Prime Minister issued Decision No. 1661/QD-TTg approving a plan to reduce and simplify regulations related to business activities under the management of the Ministry of Health, which highlights the procedure for issuing cosmetic advertising content approvals for enterprises. Accordingly, the procedure for issuing and reissuing these approvals will be abolished from 2022 to 2025. In this article, HM&P will highlight some of the shortcomings that enterprises have encountered in the implementation of this procedure, which serve as a basis for the abolition decision by the State Authorities, as well as provide updates on the timeline for the abolition of this procedure.
1. Current regulations on the procedure for issuing Cosmetic Advertising Content Certificates
According to the provisions in Point b, Clause 4, Article 20 of the Law on Advertising 2012, the condition for advertising cosmetics is to have cosmetic products notification template in accordance with the Health Laws. However, since the effective date of Decree No. 181/2013/ND-CP[1]on 01 January 2014 the advertising of certain products, especially cosmetics, can only be conducted after the competent State authority has confirmed the contents[2] of advertisements. In addition, this Decree also specifies the content of cosmetic advertising that businesses must comply with[3].
Subsequently, on 25 May 2015, the Ministry of Health issued Circular No. 09/2015/TT-BYT, which stipulates the approval for contents of advertisements for special products, commodities, and services under the authority of the Ministry of Health (“Circular 05/2019/TT-BYT”). Accordingly, in order to obtain a content approval for cosmetic advertisements, enterprises must submit an application to the Department of Health where the registered office of the company is located, or in the case of the advertising through the conference, seminar or event, to the Department of Health where such event is planned[4].
2. Barriers for enterprises
The purpose of advertising is to introduce the public to the products and goods that companies trade in, thereby increasing sales of those products and goods. Advertising cosmetics serves the same purpose. However, the requirement that businesses can only advertise cosmetics after obtaining advertising content approval from the competent State authority may prevent the advertising activities from being carried out as originally intended by the businesses. Cosmetics are considered fast-moving consumer goods that require businesses to constantly change to meet market demands. According to the provisions in Clause 3, Article 20 of the Circular 05/2019/TT-BYT, the deadline for the competent authority to issue a cosmetic advertising content approval is 10 working days from the date of receiving a complete and valid application based on the receipt stamp of the receiving agency. However, this is the case when the business submits a complete application and obtains approval for the advertising content. If the application is incomplete, the timeline for making changes and additions to the application will be extended. Therefore, if a company’s product of a business is rejected or the issuance of the cosmetic advertising content approval process takes a long time, the company will spend a significant amount of time on cosmetic advertising, missing opportunities and competitive advantages compared to other companies in the market. Furthermore, maintaining the procedure for issuing cosmetic advertising approval procedure involves additional procedures that inconvenience businesses, such as the procedure for reissuing the certificate if the organization's name or address changes and the advertising content remains the same, or if the approval expires, is lost or damaged.
In addition, when applying for content confirmation, enterprises must pay a fee of 1,800,000 VND for each application. While this fee may not be significant when considering a single application, a company may have to advertise many different products during its operation, resulting in a significant increase in operating costs.
Another reason why we believe that the effectiveness of the procedure on cosmetic advertising activities is a prerequisite for the authorities to decide to abolish this procedure.
In practice, the content confirmation procedure does not play a significant role in the control of cosmetic advertising activities. During this procedure, the State authority examines the compatibility of the intended advertising content with the documents in the cosmetic registration dossier, such as the cosmetic product notification template issued by the competent State authority. This procedure cannot control the entire advertising process of companies or ensure that companies strictly adhere to the content confirmed by the State authority. As a result, this procedure not only acts as a barrier for enterprises, but also fails to provide the State authorities with an effective tool to manage cosmetic advertising activities. Moreover, compared to other products and goods that fall under the special category regulated by Decree No. 181/2013/ND-CP, cosmetics can be considered a category with a lower risk of affecting consumers' health compared to drugs or food. Therefore, removing the requirement for content confirmation and instead strengthening inspection and enforcement activities, as well as increasing post-advertising penalties, could be an effective solution for state agencies to pursue to ensure consumers' rights to use safe and quality products in the cosmetics sector.
In summary, the issuance of the Decision No. 1661/QD-TTg, which abolishes the procedure for granting approval for the content of cosmetic advertising, can help to remove barriers faced by companies, increase awareness among companies, and strengthen the initiative and determination of government agencies in managing cosmetic advertising activities.
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3. Actual timeline for removal
The Decision No. 1661/QD-TTg was issued and took effect on 04 October 2021. The Decison outlines the schedule for the abolition of the procedure for issuing cosmetic advertising content approvals to be implemented from 2022 to 2025 with a recommendation to amend the Decree No. 181/2013/ND-CP and the Circular No. 09/2015/TT-BYT.
The Circular No. 09/2015/TT-BYT was issued based on basis of the provisions on the confirmation of the content of cosmetic advertising, as set out in Article 12 of the Decree No. 181/2013/ND-CP. Therefore, it is necessary to first amend Decree No. 181/2013/ND-CP.
According to the provisions in Clause 2, Article 84 of the Law on Promulgation of Legislative Documents 2015, as amended and supplemented in 2020, ministers, ministerial agencies shall, on their own or under the direction of the Government, the Prime Minister, or at the request of other organizations and individuals, prepare the request for the formulation of the Decree in their fields and submit it to the Prime Minister for consideration and approval. In addition, according to the provisions of Clause 2, Article 5 of the Law on Advertising 2012 and Clause 1, Article 26 of the Decree No. 181/2013/ND-CP, the Ministry of Culture, Sports and Tourism is responsible for the State management of advertising activities. Therefore, the Ministry of Culture, Sports and Tourism is responsibile for leading the drafting and development of the Decree amending the Decree 181/2013/ND-CP.
However, currently, after reviewing the information, we have not found any relevant information regarding the draft Decree to amend the Decree No. 181/2013/ND-CP in relation to the amendment of the content confirmation requirements for cosmetic advertising. Simultaneously, based on the content of Official Letter No. 1119/QLD-MP dated 26 September 2022 from the Drug Administration under the Ministry of Health, this agency only mentions the responsibility to lead the drafting of the Decree to amend the Decree No. 181/2013/ND-CP, which falls under the Ministry of Culture, Sports and Tourism, without providing further information regarding the timeline for the amendment of the Decree No. 181/2013/ND-CP and the Circular No. 09/2015/TT-BYT.
It can be seen that although the Prime Minister has approved the Decision No. 1661/QD-TTg to remove the procedure for issuing approval for the content of cosmetic advertising, while there are no specific legal provisions to abolish this procedure, enterprises should still comply with this procedure in practice to avoid legal risks in their advertising activities.
