This document discusses issues related to labelling, advertising, lookalike products, and voluntary pension in Vietnam's Fast Moving Consumer Goods (FMCG) industry. It identifies several key issues, including complexity in state management of labelling that results in overlapping regulations from different ministries. It also notes unnecessary requirements for imported goods and chemicals. Regarding lookalike products, it points out narrow intellectual property protections and lengthy trademark application processes. Recommendations are provided to streamline regulations and processes to reduce costs for businesses and foster industry growth.

1. Vietnam – Fast Moving Consumer Goods – 2015
Overview
The growth rate of the Fast Moving Consumer Goods (FMCG) industry in Vietnam has been
slowing down since the end of 2012, after a rapid development over the last ten years. Further
to that, the estimated GDP growth of Vietnam is much lower than other neighbouring
countries such as China, Cambodia, or Laos. These slow developments are the result of a
number of elements, notably the global economic downturn, an inactive local business
environment and an incomplete legal framework. Therefore, improving the legal framework
is one of the most important and significant means to overcome the aforementioned
shortcomings, and to foster the growth of GDP in Vietnam in general and the development of
the FMCG industry in particular. In this chapter, the our FMCG Sector Committee discusses
the most important issues currently faced by the industry from the points of view of
manufacturers and distributors, as well as the gains/concerns for Vietnam arising from these
challenges and their possible evolution. We also make recommendations regarding how these
problems can be addressed and solved.
The chapter focuses on the topics of labelling, advertising, lookalike products, and voluntary
pension. For the purpose of building a strong market with rapid growth, as well as a
transparent and active business environment, we believe that a growing FMCG sectorwill
continue contributing its notable role in the overall development of Vietnam.
Labelling
Relevant Ministries: Ministry of Science and Technology (MOST), Ministry of Health
(MOH), Ministry of Culture, Sport and Tourism (MOCST), Ministry of Agriculture and
Rural Development (MARD), Ministry of Industrial Trade (MOIT)
Despite the fact that Vietnam in general, and Vietnam’s FMCG industry in particular, have
no tably changed throughout the years, the main regulation governing labelling-related
matters, Decree 89/2006/ND-CP dated 30 August 2006 on labelling goods (Decree 89), has
not been amended or supplemented since then. Consequently, many circulars detailing,
guiding and/or regulating labelling matters that are not regulated in Decree 89 have been
issued, making the regulations system governing this subject much more complicated.
Moreover, products with harmonised labels (i.e. one label for several countries), both
imported and domestically manufactured, can be found much more easily on the Vietnamese
market, nowadays, as compared with the time Decree 89 was adopted. In addition, Ordinance
No. 18/1999/PL-UBTVQH10 on quality of goods, on which Decree 89 was based, was
replaced by Law No. 05/2007/QH12 on the quality of goods and products. Hence, many
provisions of Decree 89 and its following circulars have not been updated to echo the change
of the market in general, and the change of FMCG sector in particular.

2. 1. COMPLEXITY AND OVERLAPPING IN STATE MANAGEMENT REGARDING
LABELLING GOODS AND PRODUCTS
Issue description
In general, the MOST is in charge of managing labelling-related matters. However, as
different goods and products are under the management of different Ministries, these
Ministries also issued legal documents to regulate the goods and products under their
management. As a result, the labelling of one product may be under the management of
several Ministries. For example, the MOH is the State authority managing cosmetics.
Consequently, the labelling of these products first has to comply with general labelling
provisions as provided in Decree 89 and its detailing and guiding circulars issued by the
MOST, as well as specific requirements as stipulated in Circular 06/201 1/TT-BYT dated 25
January 2011 regulating the management of cosmetics (Circular 06) issued by the MOH.
Due to the fact that one label is under the management of several different Ministries,
overlapping and conflicts often happen. For example, Circular 06 allows the quantity to be
recorded in metric, or in both metric and imperial units, while Circular 21/2014/TT-BKHCN
dated 15 July 2014 regulating the quantity of pre- packed goods (Circular 21) regulates that
quantities must be recorded using the metric system. Circular 06 also allows enterprises to
label either the manufacturing date or the expiring date, while Decree 89 requires cosmetics
products to feature both. In our opinion, the provisions of Decree 89 and its relevant circulars
relating this matter are too rigid, hence, impractical and redundant in certain circumstances.
Potential gains/concerns for Vietnam
The complexity in State management and administrative procedures creates unnecessary
costs for enterprises, whilst it could easily be avoided if labelling rules were harmonised.
Harmonised regulations would also help enterprises to comply with them easily, rather than
having to keep track of several legal documents issued by several Ministries. Furthermore, it
will avoid conflicting provisions, which put enterprises in uncertainty and confusion.
Recommendations
• To update Decree 89 and harmonise regulations on labelling. Ideally, all labelling
matters should be regulated under one set of rules, which should give more flexibility to
enterprises, similarly to the approach under Circular 06; and
• The MOST should be in charge of all labelling matters, as it is currently in charge of
general matters related to labelling goods and products.
2. UNNECESSARY REQUIREMENTS IN LABELLING IMPORTED GOODS Issue
description
The increasing number of imported goods also brings up a pressing matter for enterprises
importing or distributing these goods, as they need to label them to be in compliance with
Vietnamese laws. As provided in Decree 89, imported goods, besides being subject to

3. labelling contents similar to domestic goods, also have to feature additional contents. Despite
the fact that much of the compulsory information is already available on the original label
(i.e. net content, ingredients etc.), importing enterprises are required to keep the original label
and label this information again in sub-label. This requirement, in our opinion, is unnecessary
as normally the original labels follow international standards. Further to that, the more
compulsory content is required, the more it costs to enterprises which consequently affects
the price of the product.
This is a problematic issue in the FMCG sector, due to the fact that most products in the
industry have very limited space for labelling, especially in case of small pack size. With the
increasing number of compulsory contents, it is very difficult for enterprises to feature
everything into the label.
Moreover, many of current the compulsory labelling contents for imported goods are
redundant. For example, Decree 89 requires the label of imported goods to feature both the
origin country and the address of the manufacturer. We believe that the address of the
manufacturer is not necessary, as for imported goods, the liable party is the local
importer/distributor, not the manufacturer. This approach is reflected in Circular 06, in which
the manufacturer’s address is not a compulsory labelling content.
In addition, for food products, many countries require to record the expiry date on the label
only, while Vietnamese laws require recording both the manufacturing date and the expiry
date, underthe day/ month/year format. For products with harmonised labels that are available
in many countries, this brings up a significant cost for enterprises. For example, in relation to
food products distributed in several ASEAN countries such as Vietnam, Thailand, Singapore,
or Malaysia, Vietnam is the only one to require the labelling of both manufacturing and
expiring dates, while other countries only require the labelling of the expiring date. From our
point of view, for food products, the latter is more important and hence, regulations should be
flexible to avoid increasing costs and losing competitiveness for such products in an
increasingly competitive market. A flexible approach such as used in Circular 06 is welcome
and reasonable, in the context of an international integrated market.
Potential gains/concerns for Vietnam
Reducing a number of compulsory contents for imported goods will help importing
enterprises to save a significant redundant cost, and increase the competitiveness of the
products concerned. Furthermore, reducing compulsory contents also leads enterprises to use
harmonised labels, which would be an indication of Vietnam’s commitment towards the
integration with the global market in general, and the ASEAN market in particular. In the
long term, a harmonised label will assist Vietnam’s enterprises to export their goods to
neighbouring countries that share the harmonised label.
Recommendations
• To remove unnecessary compulsory contents for imported goods, including - but not
limited to -the manufacturer’s address, and the manufacturing date for food products.

4. • To only require labelling contents that are not available on the original label, or which
need to be translated into Vietnamese. The net content and ingredients list are two
examples of the contents that do not need to be labelled twice.
• More flexible requirements for products with harmonised labels, to encourage
enterprises to follow the harmonisation and globalisation trend.
3. LABELLING REQUIREMENTS FOR IMPORTED CHEMICALS FOR
MANUFACTURING PURPOSE
Issue description
The legal document regulating chemicals is Circular 04/2012/TT-BCT dated 13 February
2012 regulating classification and labelling of chemicals (Circular 04).
Both domestically produced and imported chemicals have to comply with Circular 04 in
order to be distributed in Vietnam. However, Article 4.1 of Circular 04 provides that in
general organisations and individuals manufacturing and importing chemicals are responsible
for recording the contents of labels before using or putting such chemicals into circulation.
This means that manufacturers importing raw materials (chemicals) for manufacturing
purposes or for internal use shall also be responsible for labelling them.
While Decree 89 only regulates that chemicals importing and exporting individuals and
organisations have to label chemicals before distributing, Circular 04 has added the
requirements of labelling chemicals before using such chemicals. These requirements
seriously impacted enterprises importing chemicals to manufacture their own products due to
the limitation of domestic supply. Complying with the provisions of Circular 04 has increased
unnecessary costs for enterprises.
The Department of Industry and Trade of Ho Chi Minh City confirmed to us that all
chemicals (hazardous and non-hazardous) imported for manufacturing purposes must be
labelled in accordance with Circular 04. We understand that this aims to ensure users’ safety
and facilitate their use of chemicals. However, we believe that this provision is impractical,
as all imported chemicals already include a chemical safety data sheet containing all
compulsory labelling contents. In addition, in most cases, imported chemicals already comply
with the Global Harmonised System (GHS) of Classification and Labelling of Chemicals. In
addition, putting sub-labels for all imported chemicals is costly and burdensome for
manufacturers.
Potential gains/concerns for Vietnam
Removing the aforementioned impractical requirements will help chemical importers and
users to reduce their costs, and it will lower the safety risk relating to labels falling off during
the manufacturing process. From the regulator’s point of view, it will help lessening the
administrative costs of monitoring the labelling of chemicals in such cases.
Recommendations

5. • Remove the labelling requirements for chemicals imported for manufacturing
purposesdefined in Circular 04.
Look alike Products
Relevant State bodies: Ministry of Science and Technology (MOST), Ministry of Culture,
Sports and Tourism (MOCST), Ministry of Industry and Trade (MOIT), Vietnam
Competition Authority (VCA)
2015 will be the 10th year since Vietnam’s Law on Intellectual Property (IP Law) was
discussed. Despite the fact that the law has been amended and supplemented once in 2009,
and that several complementary decrees have been released since, intellectual property (IP)
still remains a concern for enterprises. Among IP-related issues, the problem of lookalike
products is one of the most difficult issues to deal with, due to the lack of concrete provisions
in the legislation as well as the fact that the regulators tend to consider counterfeiting and
piracy as more prioritised concerns. This is especially troubling in the FMCG sector, due to
the fact that goods and products are usually sold individually and at a low price. Consumers
in the FMCG sector do not often spend much time choosing a product, making it easy to
mistake a similar product with the original one. Considering the large sales volume of FMCG
goods, lookalike products may seriously impact enterprises in the industry.
The main problem for enterprises when dealing with lookalike products is that the scope of
protection of packaging under the IP Law is very narrow, and enforcement procedures take
too much time. According to IP Law, enterprises can use provisions on copyright, trademark,
industrial design, and unfair competition to protect their packaging from lookalike products.
1. IP INFRINGEMENT PROVISIONS
Issue description
Industrial design rights are an effective instrument to prevent lookalike products, as the scope
of protection of the certificate is relatively broad. However, this generally applies to
packaging with distinctive design only , while most of the packaging in the FMCG sector
fails to meet this requirement.
Besides industrial design, enterprises can protect their packaging as copyrighted works.
Copyright provisions do not require registration to enjoy protection, and if the right owner
decides to register their works, the procedures are relatively simple, as compared with
registering a trademark or an industrial design. However, unlike for actions against
counterfeiting and piracy, the burden of proof is on the requesting party in infringement
actions against violations of copyrighted work. Normally, the infringement needs to be
supported by an infringement statement from the Vietnam Copyrights Office (VCO). The
problem is, however, that the VCO usually tends to avoid this kind of conclusion, except in
some obvious and special cases. Therefore, requesting sanction against lookalike products
under copyright provisions is comparatively rare, and not very effective in the FMCG
context.

6. Another common way used by enterprises to prevent lookalike products is to register the
packaging, or its main elements, as trademarks. Once they get the trademark certificate, it is
much easier to request actions from the authorities.
In theory, the procedure from filing for a trademark until the issuing of the trademark at the
National Office of Intellectual Property of Vietnam (NOIP) takes 11 months. However, due
to the overload at NOIP, this process takes 14 to 20 months in practice, or even longer in
some cases. In the context of the FMCG industry, this really is a lengthy process, as the life
cycle of a product packaging in this industry is comparatively short. In addition to time-
consuming procedures, many characteristics of the packaging are deemed descriptive and
indistinctive, and cannot be protected separately as trademark. This is a critical concern, as
enterprises producing lookalike product tends to use these unprotected elements on their
product and label, to create a visually confusingly similar packaging to the original one.
Therefore, the scope of protection in challenging lookalike products is quite narrow in such
cases.
In order to request sanctions in trademark infringements, the enterprises can turn to the
Vietnam IP Research Institute (VIPRI). Nevertheless, in our opinion, VIPRI's approach is
somehow rigid, as they only compare the classes of the products and the marks themselves,
and do not consider other important factors, such as popularity, scope of distribution, length
of usage, whether the mark is used in bad faith etc. Hence, the decision is only in favour of
the original manufacturer if the infringement is obvious.
Potential gains/concerns for Vietnam
In our opinion, reducing the time needed for trademark and design applications, as well as
increasing the scope of protection of IP infringement provisions will help enterprises to
protect their ideas and innovations better, instead of a constant concern that their property
will be a target for lookalike products.
Recommendations
• The VCO should take a more active role in helping enterprises fighting against
lookalike products;
• Shorten the times for issuing industrial design and trademark certificates;
• VIPRI should have a broader consideration when deciding on trademark
infringement, such as popularity, scope of distribution, length of usage, whether the mark is
used in bad faith.
2. UNFAIR COMPETITION PROVISIONS
Issue description
A common characteristic that can be found in many lookalike products is that they do not
completely copy the elements from the original, but only to a certain extent as to create a
confusingly similar overall impression.

7. In these cases, unfair competition provisions will be the most relevant and useful provisions
for challenging lookalike products. Article 130 of the IP Law provides a list of activities that
are deemed as unfair competition activities, while Law No. 27/2004/QH11 on Competition
dated 3 December 2004 (Law on Competition), the main law regulating competition matters,
additionally defines 'misleading indications' as an unfair competition activity.
Linder Decree No. 99/2013/ND-CP dated 29 August 2013 regulating administrative sanction
in industrial property sector (Decree 99), the Vietnam Competition Authority (VCA) is not
one of the competent regulators to sanction violations of the IP Law 181. Meanwhile, in
Decree No. 71/2014-/ ND-CP dated 21 July 2014 guiding the Law on Competition in relation
to administrative sanction in competition, VCA is the only organisation authorised to apply
administrative sanctions for competition law in fringements.
Potential gains/concerns for Vietnam
As a consequence, it happens that unfair competition in industrial property may not be
sanctioned, due to the reason that under Law on Competition, the VCA is the only competent
regulator to sanction this matter. A clear guidance on this matter will be welcome, as it will
help both regulators and enterprises to resolve this matter effectively, and to keep a healthy
competition in the market.
Recommendations
• To harmonise the sanctioning authority in the two abovementioned regulations; and
• To designate the VCA as a competent authority to sanction unfair competition.
Advertising of Specific Products
Relevant Ministries: Ministry of Health (MOH), Ministry of Culture, Sports and Tourism
(MOCST), Ministry of Industry and Trade (MOIT), Ministry of Agriculture and Rural
Development (MARD)
Issue description
Law No. 16/2012/QH13 dated 21 June 2012 on Advertising (Law on Advertising) and
Decree 181/2013/ ND-CP dated 14 November 2013 detailing a number of articles of Law on
Advertising (Decree 181) define compulsory advertising contents for categories of products
such as pharmaceutical products, cosmetics and food. However, each Ministry also has its
own regulation for products which are under its management. Although these were
promulgated before the issuance of Decree 181 and have a number of articles that no longer
comply with Decree 181, they remain applicable and create confusion on the following
subjects.
• Time period for certification of advertising contents: Decree 181 requires 10 working
days while it is 15 working days under Circular 40 and 20 working days under Circular 75.

8. • Compulsory information for cosmetics advertising: Decree 181 requires the following
information: name of product, function, benefit; name of manufacturer responsible for the
circulation of product on the market and warnings in accordance with international treaties.
Furthermore, Decree 181 provides that in case of advertising on video and audio, it is
requested to read out loud three elements: name of product, function, benefit and warnings in
accordance with international treaties. At the same time, Circular 06 requests another three
elements (name of the product, name and address of the manufacturer being responsible for
the circulation of the product on the market and cautions (if any). Circular 06, however, is
more flexible than Decree 181 by allowing enterprises to choose between reading out loudly
and displaying the content clearly in writing on screen.
Potential gains/concerns for Vietnam
Relevant regulations should be consistent and there must be a unified guidance for
advertising of special products so that enterprises, FMCG enterprises in particular, can easily
comply with the applicable laws as well as simplify administrative procedures in order to
save costs and time.
Recommendations
• To build a unified guidance for the advertising of specific products.
Voluntary Payments
Relevant Ministries: Ministry of Finance (MOF) and Ministry of Labour, Invalids and Social
Affairs (MOLISA)
Issue description
We believe that some tax issues have been recently addressed by the Vietnamese
Government and that positive changes have been achieved. For example, Decree No.
92/2013/ND-CP dated 13 August 2013 guiding the amended Corporate Income Tax (CIT)
Law and the amended Value Added Tax provides various CIT rates of 20%, 10% and 5%
that are applied to enterprises whose business conditions and operating fields are different.
In our opinion, this is a positive movement against the current economic background. Besides
such positive changes, however, many issues remain, such as regarding Voluntary Payments
made by the employer in favour of the employee, which should be added to the expenses that
are deductible from the CIT. In accordance with the CIT Law as amended on 19 June 2013
and Decree No. 218/2013/ND-CP dated 26 December 2013 detailing and guiding the
implementation of a number of articles of the CIT Law, the deductible expenses include
Voluntary Payment for employees that do not exceed 1 million VND per employee per
month. This is the first time that Voluntary Payments are being clearly recognised in
Vietnam. However, this provision seems inapplicable to the FMCG sector, as a number of
companies use the company benefit at a rate of around 5-10% of the enterprise’s wage fund
to pay for such payments.

9. Potential gains/concerns for Vietnam
A lot of countries now recognise the existence of Voluntary Payments set up by employers,
and implement favourable tax conditions for the fund’s operation. Such additional fund shall
be paid by the company until the employee reaches the age of 70 inclusively, which helps to
significantly improve the living standards of the employee after retirement. In case of
premature death, the cumulative benefits from such retirement fund shall be transferred to the
employee’s family.
On 20 January 2014, Prime Minister Nguyen Tan Dung promulgated Decision No. 144/QD-
TTg approving the establishment and development scheme of voluntary pension programmes
in Vietnam, which comprises several notable provisions, such as provisions encouraging
employers and employees to participate in voluntary pension programmes, forming new tax
regulations detailing tax incentives for voluntary pension, etc. Nevertheless, we have not seen
any specific regulation in relation to Voluntary Payments being issued so far. In the current
context, we believe that Vietnamese employees have the rights and deserve the best interests
offered by their employers in particular and by the society in general for their valuable
contributions and we recommend that the guiding regulations will be issued at the soonest.
The lack of regulations on specific incentives for the establishment and maintenance of
Voluntary Payments creates a loophole for employers offering additional benefits to their
employees and limits Vietnamese employees’ possibility to enjoy more benefits. Moreover,
we also believe that having these regulations shall encourage more enterprises to establish
Voluntary Payments funds, which will bring enormous benefits to the employees in all
sectors, not only in FMCG industry.
Recommendations
We recommend specific/detailed regulations guiding the establishment and operation of
Voluntary Payments shall be promulgated at the soonest time reasonably possible. We further
recommend the fund spending for the payments to be a minimum of 10% of the enterprise’s
actual wage fund.
Please contact Oliver Massmann under Uomassmann@duanemorris.comU if you have any
questions.