Legal Thinking On Identifying The Responsibilities Of Misleading Propaganda In Celebrity Endorsement

Misleading propaganda in celebrity endorsement is a hot topic in recent years, as it causes great controversy in the society. In the disputes of legal affairs, a lot of debates are arisen from identification of the responsibilities for misleading propaganda in celebrity endorsement. The new Law on Protection of the Rights and Interests of Consumers and Regulations of the Supreme People’s Court on Several Issues Concerning Applicable Laws for Hearing Food- and Medicine-related Disputes(hereinafter referred to as Judicial Interpretation of Food and Medicine) have been implemented since March 15 2014, specifying joint liability of the celebrity for misleading propaganda in celebrity endorsement. After the implementation of the new law, its applicability in specific cases is the next problem to be solved. This paper performed legal analysis on qualifications, conducts and doctrine of liability fixation of celebrity in celebrity endorsement with the case of “BY-HEAL TH” endorsed by Yao Ming as the perspective, finding out the practical dilemma of identifying responsibilities for misleading propaganda in celebrity endorsement and proposed suggestions for improvement.This paper was divided into the following three parts:Part 1: review of the case. Mr. Feng Changshun listened to introduction of sales personnel of People’s Sunshine Pharmacy and looked at brochure of BY-HEAL TH which was endorsed by Yao Ming- his favorite star, so that he bought fish oil soft capsule of BY-HEAL TH. But after taking it, no treatment effects were achieved. So, Mr. Feng Changshun proposed litigation at People’s Court of Xicheng District, requiring People’s Sunshine Pharmacy and Yao Ming to undertake liability for damage. After analyzing it, the author summarized the focuses of the case as follows: firstly, whether celebrity who endorsed product is the qualified subject of liability for misleading propaganda; secondly, whether celebrity has the conduct of misleading propaganda in endorsing products; thirdly, whether celebrity has subjective mistake in misleading propaganda while endorsing products.Part 2: legal analysis on controversial focus. This part mainly analyzed controversial focus of the case. After implementing the new law, the responsible subjects for misleading propaganda are extended to celebrity who endorsed products. Yao Ming, who endorsed the product, has violated prohibitive provisions of the Chinese law in propaganda conduct of BY-HEAL TH products, resulting in conducting of misleading propaganda. So, Yao Ming shall undertake the responsibility for civil compensation. New Law on Protection of the Rights and Interests of Consumer specifies celebrity who endorsed products shall undertake joint liability, but it does not specify the principles of attributing responsibilities for misleading propaganda of celebrity endorsement.Part 3: dilemma and suggestions for identifying responsibilities for misleading propaganda in celebrity endorsement. Owing to imperfect laws and absence of guiding cases, it is still very difficult to identify the responsibilities for misleading propaganda in celebrity endorsement. Even if the new law has formulated provisions initially on identifying the responsibility for misleading propaganda in celebrity endorsement, numerous aspects need to be improved still. On the basis of exploring the dilemma of civil liabilities for misleading propaganda, this paper proposed suggestions of improvement in such aspects as internal relation of liability subjects of misleading propaganda, standards of identifying conducts of misleading propaganda and the principles of attributing civil liabilities for misleading propaganda to drive further improvement of celebrity endorsement and protect legal rights and interests of consumers to a greater extent.