Advertisement claims: health-related consumer products and services: digital replicas and synthetic performers., the official text

An act to add Section 651.4 to the Business and Professions Code, relating to advertisements.

LEGISLATIVE COUNSEL'S DIGEST

Existing unfair competition laws make various unfair competition practices unlawful, including any unlawful, unfair, or fraudulent business act or practice and unfair, deceptive, untrue, or misleading advertising. Existing law makes it unlawful for any person doing business in California and advertising to consumers in California to make any false or misleading advertising claim. Existing law makes a person who violates specified false advertising provisions liable for a civil penalty, as specified, and provides that a person who violates those false advertising provisions is guilty of a misdemeanor.
Existing law makes it unlawful for healing arts licensees, as specified, to disseminate or cause to be disseminated any form of public communication containing a false, fraudulent, misleading, or deceptive statement, claim, or image in order to induce the provision of services or products in connection with their licensed professional practice or business. Existing law makes a violation of these provisions punishable as a misdemeanor and, in the case of a licensed person, provides that a violation constitutes unprofessional conduct and grounds for suspension or revocation of a license by the relevant board.
This bill would require a person who creates or causes to be created an advertisement that includes a digital replica or synthetic performer depicted as a health care provider to promote the sale of a health-related consumer product or service to include a clear and conspicuous disclosure that the health care provider depicted in the advertisement was generated or substantially altered by artificial intelligence or that no human health care provider is depicted. The bill would also define terms for its purposes.
This bill would provide that a violation of its provisions constitutes a violation of specified unfair competition and false advertising laws. By expanding the scope of a crime, this bill would impose a state-mandated local program. The bill would also authorize a natural person whose digital replica is used in an advertisement to bring a civil action to enforce these provisions. The bill would specify that a violation of the bill does not constitute a misdemeanor under provisions regulating healing arts licensees.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.

The people of the State of California do enact as follows:

SECTION 1.
Section 651.4 is added to the Business and Professions Code, to read:
651.4.
(a) For purposes of this section, the following definitions apply:
(1) “Artificial intelligence” means an engineered or machine-based system that varies in its level of autonomy and that can, for explicit or implicit objectives, infer from the input it receives how to generate outputs that can influence physical or virtual environments.
(2) “Clear and conspicuous disclosure” means a disclosure that is difficult to miss, easily understandable, and presented in a manner that a reasonable consumer would notice, read, and comprehend, taking into account the medium, format, and context in which the advertisement appears.
(3) (A) “Digital replica” means a computer-generated, highly realistic electronic representation that is readily identifiable as the voice or visual likeness of an individual that is embodied in a sound recording, image, audiovisual work, or transmission in which the actual individual either did not actually perform or appear, or the actual individual did perform or appear, but the fundamental character of the performance or appearance has been materially altered.
(B) “Digital replica” does not include the electronic reproduction, use of a sample of one sound recording or audiovisual work into another, remixing, mastering, or digital remastering of a sound recording or audiovisual work authorized by the copyrightholder.
(4) “Generative artificial intelligence” means an artificial intelligence system that can generate derived synthetic content, such as text, images, video, and audio, that emulates the structure and characteristics of the artificial intelligence system’s training data.
(5) “Health-related consumer product or service” means a product or service that is marketed for use primarily for personal, family, or household purposes, and is marketed as having a health benefit. Examples include, but are not limited to, dietary supplements and medical and dental goods and services.
(6) “Health care provider” means a person licensed under this division.
(7) “Synthetic performer” means a digital figure, voice, or representation created in whole or in part using generative artificial intelligence, that creates the realistic impression of an audiovisual or visual performance of a human performer who is not recognizable as any identifiable natural person.
(b) A person who creates or causes to be created an advertisement that includes a digital replica or synthetic performer depicted as a health care provider to promote the sale of a health-related consumer product or service shall include a clear and conspicuous disclosure that the health care provider depicted in the advertisement was generated or substantially altered by artificial intelligence or that no human health care provider is depicted.
(c) This section does not authorize use of a person’s digital replica for commercial purposes without the individual’s consent.
(d) (1) A violation of this section constitutes a violation of Section 17500 and may be enforced pursuant to Chapter 5 (commencing with Section 17200) of Part 2.
(2) A natural person whose digital replica is used in an advertisement that violates subdivision (b) may bring a civil action against the person who created the advertisement and may seek any appropriate remedy, including, but not limited to, injunctive relief.
(3) The remedies provided for under this paragraph are cumulative and shall be in addition to any other remedies provided for by law, including, but not limited to, Section 3344 of the Civil Code.
(4) A violation of this section shall not constitute a misdemeanor for purposes of this article.

SEC. 2.
No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.