Thailand’s advertising is regulated by the government through:
|➤ The Consumer Protection Board's office, which monitors all forms of advertising and labels for violations of the Consumer Protection Act|
|➤ The Food and Drug Administration, which regulates and approves advertisements for food, medical devices, drugs, and cosmetics|
|➤ The Advertising Association of Thailand's Advertising Ethics Committee, which regulates TV advertisements (this has shifted the control of advertising from the government toward self-regulation by the industries)|
However, if a portion or the entirety of an online advertisement is distorted, forged, or false in a way that is likely to cause harm to another person or the public, the advertiser may be charged with a criminal offense under the Computer-Related Crime Act B.E. 2550 (2007), as amended by the Computer-Related Crime Act (No. 2) B.E. 2560. (2017).
Direct marketing is governed by the Direct Sales and Direct Marketing Act B.E. 2560 (2017) and the Ministerial Regulation on Collateral Requirements for Direct Sales and Direct Marketing Business B.E. 2561 (2018), which impose rules and regulations to protect consumers from direct sales and direct marketing business operators. However, there are no specific advertising regulations in these, and advertising is generally subject to the CPA.
Sales promotions, like advertising, are governed directly or indirectly by a number of statutes, including the:
|➤ Consumer Protection Act of 1979 (as amended in 1998, No. 2; 2013, No. 3; and 2019, No. 4)|
|➤ 2017 Trade Competition Act|
|➤ Other specific laws include: the Food Act of 1979, the Drugs Act of 1967 (as amended in 1975, No. 2; 1979, No. 3; 1984, No. 4; 1987, No. 5; and 2019, No. 6); the Cosmetics Act of 2015, and the Alcoholic Beverages Act of 2008|
Sales promotions are generally permitted for the majority of products, with the exception of some regulated products, such as alcoholic beverages, where the law prohibits giving out free samples or conducting other similar sales promotions to induce individuals to consume alcoholic beverages.
A contract is formed when the offeror receives a notice of acceptance, according to the general rule.
Electronic contracting, electronic signatures, electronic payments, e-commerce service providers, and the execution of security measures are all covered by the Electronic Transaction Act BE 2544 (2001) (as modified).
The Electronic Transactions Commission and the Bank of Thailand have issued many regulations under this act.
In addition, the Act on Computer-Related Offenses BE 2550 (2007) (as modified) establishes a number of computer-related criminal offenses. It provides stringent data retention rules for service providers, as well as obligations for them to cooperate with and aid law authorities.
Those wishing to operate an e-commerce business in Thailand may be needed to register with the Department of Business Development (DBD) and the Office of Consumer Protection Board for commercial registration and direct marketing registration, respectively (OCPB).
Users who utilize online platforms to offer or sell their products or services must register with the Department of Business Development (DBD).
Businesses that sell products or services online must register with the Office of Consumer Protection Board (OCPB) since they fall under the term of “direct marketing” under the Direct Sales and Direct Marketing Act B.E. 2545 (2002).
Ministerial regulation has excluded the following online firms from the phrase “direct marketing”:
|➤ The sale of products or services by an individual who is not a direct marketing business operator and whose annual revenue is less than THB1.8 million and is obtained from the sale of goods or services via e-commerce|
|➤ The sale of goods or services by small and medium-sized firms (SMEs) that are registered under the SMEs statute|
|➤ The sale of goods or services by community enterprises and community enterprise networks that have been registered under the Community Enterprise Promotion Act (B.E. 2548). (2005)|
|➤ The sale of goods or services by co-operatives and farmer's organizations that have been registered under the co-operative statute|
|➤ Consumer rights, as defined by consumer protection legislation, also apply to online transactions|
Although there are no special rules or regulations controlling marketing, distribution, and franchise agreements, they are considered contracts and are subject to the general laws governing contracts and duties.
These forms of agreements can be governed by general legal concepts. There are no specific criteria for marketing agreements in terms of notarization and/or registration.
The Civil and Commercial Code has specific provisions that govern agency agreements. The existence of an agency connection is determined by the parties’ relationship. A “no agency” or “no partnership” provision can be included in a contract, but the court will ultimately decide whether or not such a relationship exists.
Businesses should be aware that commercial agreements with Thai distributors, franchisees, and marketers may be subject to the restrictions of the Unfair Contract Terms Act BE 2540 1997. This is particularly important when the Thai partner’s agreement involves a contract of adhesion.
Furthermore, foreign companies must consider whether their contractual ties with Thai business partners constitute a permanent establishment under Thai tax law, which could expose their commercial operations to the Thai taxation regime inadvertently.