Use of Generative AI in Advertising

The use of various types of AI-generated content is increasingly noticeable in Japanese advertising. Japan’s Copyright Act is very lenient on AI learning, allowing the use of others’ copyrighted works for AI training purposes without gaining the permission of the creator and/or owner of said works.

According to the Copyright Act, a work may be used for AI training if it falls within the necessary limits specified in the guidelines below. This also applies in any instances where the use is not intended for personal enjoyment or to share the thoughts or emotions expressed in the work.

• When used for testing in the development or practical application of technologies related to the recording, filming, or other use of works.
• When used for information analysis.

In situations not included in the categories mentioned above, when a work is utilised in processes involving electronic data processing by computers or in any other applications that do not acknowledge or recognise the expression of the work through human perception (except for the execution of a work that is a computer program).

However, this exception does not apply if it unfairly harms the copyright holder’s interests, taking into account the type and purpose of the work and its intended usage.

Due to cultural influences from robot characters like Astro Boy and Doraemon, the Japanese people seem generally more accepting of the use of AI in advertising.

A major Japanese beverage company, Ito En, deployed an AI-generated persona, referred to as an “AI Actor,” in television advertisements for their Oi Ocha Katekin Ryokucha green tea. The company believes using an AI model will enhance its branding and promotional efforts.

According to the company, the AI personality appearing in the TV commercials is a persona everyone, regardless of gender, will find “healthy/active/progressive/strong-willed”. The designer and creator selected a number of AI-generated face outputs and then manually fine-tuned the images. This commercial effectively uses AI talent to emphasise the importance of paying attention to one’s health by comparing the present and future selves. It is generally viewed positively by consumers.

In contrast, AI personalities are not always widely accepted. Depending on how they are used, the application of AI models can face criticism.

For example, McDonald’s AI-generated advertisement of discounted french fries, which targeted users of a social media platform “X” (formerly known as Twitter), sparked significant public backlash from consumers and media alike. Despite the promotional video crediting its creator and being clearly labelled as AI-generated content — thereby meeting the practical requirements for fair use — it faced criticism for its aesthetics. Common complaints included the food’s unappealing design and the characters’ unnatural appearance, such as having an inaccurate number of fingers.

There is no regulation on the use of AI for advertising in Japan, but the following are advisable for advertisers.

• Clearly indicate the use of AI.
• Confirm whether the used form of expression is appropriate for the advertised product or service.
• Confirm that AI-generated images do not infringe on anyone’s image rights or copyrights.
• Confirm that the content does not include anything that might be offensive to the target audience.

In Japan, while AI learning is widely accepted, care must be taken because if AI-generated works infringe on someone’s portrait rights or copyright, they could constitute a tort or copyright infringement.

Possible Strengthening of Regulations on Functional Labelling of Food Products

In March 2024, a critical incident emerged in Japan involving supplements produced and distributed by Kobayashi Pharmaceutical Co., Ltd. Established in 1919, Kobayashi specialises in manufacturing and selling pharmaceuticals, quasi-drugs, fragrances, and sanitary materials. It extensively markets over-the-counter medications, health food products, and home care goods through effective advertising.

One of their supplement products, which included red mould, was marketed as a functional food claiming to lower cholesterol levels. However, it was discovered to contain harmful substances that led to reports of serious health issues, including kidney failure. As a result, a product recall was initiated in accordance with food hygiene laws.

Initially, five deaths were reported in connection with the consumption of this supplement. However, in June 2024, the Ministry of Health, Labour and Welfare announced that an additional 76 deaths had been investigated as suspected cases related to the supplement.

This event has significantly impacted health-related food products and could lead to stricter restrictions on functional food labelling, which had previously allowed more discretion for businesses.

“Health foods,” as they are referred to in Japan, do not have a legal definition – rather, the term generally refers to foods ingested orally, other than pharmaceuticals, that are marketed or consumed with the expectation of maintaining or improving health. For this category, the government implemented a system known as the “health function food system” that oversees foods that meet the government-set standards for safety and efficacy. The system allows for the labelling of foods that can be expected to serve specific health purposes and be beneficial for health maintenance and enhancement (ie, “regulating stomach condition” or “moderating fat absorption”, etc). Additionally, the system permits the display of the function of specific nutrients that meet the standards defined by the government.

Japan recognises three types of health function foods: “foods for specified health uses”, “nutrition function foods” and “foods with function claims.”

The “foods with function claims system” in Japan allows businesses to label the functionality of food products based on scientific evidence of safety and effectiveness. This must be reported to the Commissioner of the Consumer Affairs Agency before the product is sold. Unlike “foods for specified health uses” (Tokuho), the government does not review these claims, so the businesses must ensure their claims are scientifically valid and accurately presented. Much of this responsibility is defined as a duty of effort.

The root of the above-mentioned Kobayashi incident lies in the issues with the system for foods with function claims. This system was established to verify whether products provide specific health benefits and allows businesses to label those products accordingly based on scientific studies that serve as evidence for safety and functionality. The responsibility for proving the inclusion of functional ingredients lies with the businesses themselves; however, since it is primarily based on self-declaration from the companies, there are cases where the evidence of effectiveness and safety is not 100% trustworthy and/or accurate. The problems associated with red mould-contaminated products have highlighted a systemic flaw in the reliance on data submitted solely by manufacturers.

In response to this situation, the Consumer Affairs Agency (CAA) is considering a review of all food products that are currently labelled under the functional claims system, aiming to ensure safety and enhance the system’s credibility.

In relation to food labelling, changes are expected to be made in the near future.

Businesses that manufacture or distribute products labelled as functional foods – indicating that their active ingredients may help maintain or improve health for specific purposes – are required to collect information on any reported health issues. This includes information regardless of how the products were used, whether they were taken repeatedly, continuously, or even for one-time use. If businesses receive such information, which should be limited to diagnoses made by doctors, they must promptly report it to the Commissioner of the CAA and the prefectural governors, even if a clear causal relationship with the food product has not been established. This obligation will be outlined under the Food Labelling Standards, which are Cabinet Office orders based on the Food Labelling Act. Specific rules regarding the severity of reported issues will determine the deadlines for providing this information.

By setting compliance requirements in the Food Labelling Standards, administrative actions can be taken against businesses in the food or food-related sectors. These actions will instruct them not to make functional claims unless they adhere to the provisions outlined in the Food Labelling Act.