A company released advertisements through public figure endorsements, sponsorship of online variety shows, etc., to promote that a certain type of fruit and vegetable tablets and fruit and vegetable drinks involved in the case had the function of preventing some fats and sugars from being absorbed by the human body. However, the company did not explain the functions of the products it promoted. If you can provide supporting materials to support it, it is false advertising. The market supervision and management department shall, in accordance with the provisions of Article 55, Paragraph 1, of the Advertising Law of the People's Republic of China, order the advertisement to stop publishing, order the advertiser to eliminate the impact within the corresponding scope, and impose a fine of not less than three times but not more than five times the advertising fee. .
Case Review
After Tianhe Market Supervision Bureau received clues that a company was suspected of publishing illegal advertisements, it conducted an investigation and evidence collection through on-site inspections, inquiries and investigations, and collection of relevant written materials. It was found that a company had endorsed public figures and sponsored online variety shows. Advertisements were released through programs and other means to promote the product involved in the case. A certain fruit and vegetable tablet and fruit and vegetable drink have the function of preventing some fats and sugars from being absorbed by the human body. However, a company failed to provide supporting materials to support the function of the product it promoted, and the advertisement involved in the case The product is food with added drugs, and a certain company has not truthfully disclosed the drug ingredients to the public. In addition, an advertisement designed, produced and published by a company was marked with the words "Patent Certificate of the Republic of China".
According to the "Contract" signed between a company and the company of Jing, a well-known domestic film and television actress, the total amount of the advertising contract signed by both parties is 6 million yuan. By the time the case was filed for investigation, the amount of advertising that had been delivered and released was 2.46 million yuan, and the amount of advertising that had not been delivered and released was 3.54 million yuan. Tianhe Market Supervision Bureau determined that 1.515 million yuan of the 2.46 million yuan of advertisements that have been delivered and published is legal advertising, and will be deducted from the illegal advertising amount, while the 3.54 million yuan of advertising that has not yet been delivered and published will not be deducted. , and based on this, it was determined that the illegal advertising cost of the cooperation project was 4.485 million yuan. In addition to the above-mentioned contract,
’s other cooperation projects with well-known domestic female celebrities such as Jin Mou and Zhong Mou were determined to have advertising expenses of 686,400 yuan based on the actual payment amount. That is, the Tianhe Market Supervision Bureau finally determined that the total advertising expenses of this part were 5.1714 million yuan. . Based on the ascertained facts, the Tianhe Market Supervision Bureau comprehensively considered the nature, circumstances and social harm of a company, and after performing the notification procedures, ordered a company to stop and eliminate the illegal behavior of publishing false advertisements, and imposed advertising penalties. A fine of 4.5 times the cost of 5.1714 million yuan, that is, a fine of 23.2713 million yuan; a company was ordered to stop publishing advertisements that harmed the dignity or interests of the country and was fined 800,000 yuan, with a total fine of 24.0713 million yuan. As the reconsideration authority, the Tianhe District Government reviewed a company's reconsideration application in accordance with legal procedures and made the accused administrative review decision, upholding the accused administrative penalty decision made by the Tianhe Market Supervision Bureau. The company was dissatisfied with the above-mentioned administrative penalty and administrative reconsideration decision, so it filed this lawsuit.
Separate investigation found that the products involved in the case, fruit and vegetable tablets and fruit and vegetable drinks, were randomly tested and found to contain "Xinlistat", which is a new type of synthetic drug and belongs to the category of drugs added to food. A company did not truthfully indicate the addition of the above-mentioned drugs on the outer packaging or advertisement of the food.
Results and reasons
Results
The Guangzhou Railway Transport Court ruled to reject a company’s lawsuit. A company was dissatisfied with the original judgment and filed an appeal. The Guangzhou Railway Transport Intermediate Court rejected the appeal and upheld the original judgment.
Reasons for the Judgment
The effective judgment of the second instance court held that:
Article 55, Paragraph 1, of the Advertising Law of the People's Republic of China stipulates: "Whoever violates the provisions of this Law and publishes false advertisements shall be ordered by the market supervision and management department to stop publishing advertisements and order If the advertiser eliminates the impact within the corresponding scope, it will be fined not less than three times but not more than five times the advertising fee. If the advertising fee cannot be calculated or is obviously too low, it will be fined not less than 200,000 yuan but not more than 1 million yuan; if there are more than three times within two years, If there are illegal acts or other serious circumstances, a fine of not less than five times but not more than ten times of the advertising fee will be imposed. If the advertising fee cannot be calculated or is obviously too low, a fine of not less than one million yuan but not more than two million yuan will be imposed, and the business license may be revoked. And the advertising review approval document shall be revoked by the advertising review authority, and its application for advertising review will not be accepted within one year."
Article 9 (4) stipulates: "Advertisements shall not have the following circumstances:... (4) Damage the dignity or interests of the country , leaking state secrets..."
Article 57 (1) stipulates: "Anyone who commits any of the following acts shall be ordered by the market supervision and management department to stop publishing advertisements, and the advertiser shall be fined more than 200,000 yuan and 1,000 yuan. A fine of less than 10,000 yuan may be imposed. If the circumstances are serious, the business license may be revoked, and the advertising review approval document shall be revoked by the advertising review authority, and the advertising review application shall not be accepted within one year; advertising operators and advertising publishers shall be confiscated by the market supervision and management department. For advertising expenses, a fine of not less than 200,000 yuan but not more than 1 million yuan will be imposed. If the circumstances are serious, the business license and advertising registration certificate may be revoked: (1) Publishing prohibited items as stipulated in Articles 9 and 10 of this Law The situation of advertising..."
Food and drug safety is related to the vital interests of the people, and the Tianhe Market Supervision Bureau has the legal responsibility to strengthen food and drug safety supervision. A company promoted the food involved in the case with added drugs that may cause harm to consumers by publishing false advertisements, and the relevant public opinion clues of the parties have attracted public attention. Therefore, the Tianhe Market Supervision Bureau took into account the above situation to effectively strengthen food and drug safety supervision. Governance, punishing a company involved in publishing false advertisements, should be supported.
The focus of dispute in the second instance of this case is how to determine the amount of a company's expenses for publishing false advertisements involved in the case, and whether the amount of fines imposed by the accused company for the illegal conduct of publishing false advertisements is appropriate?
Regarding the issue of how to determine the amount of false advertising fees involved. Because a company signed an advertising contract involved in selling illegal food containing added drugs, concealed the pharmaceutical ingredients added to the product, and had a subjective intention to deceive consumers. The entire relevant advertising contract signed was illegal and false advertising. There is no case where some of the advertising content delivered for publication is legal advertising. The respondent Tianhe Market Supervision Bureau identified RMB 1.515 million of the RMB 2.46 million in advertising that had been delivered and published as legal advertising, and deducted it from the illegal advertising fee of RMB 6 million, which lacked factual and legal basis. Therefore, the total cost of illegally publishing false advertisements by the appellant company should be correspondingly changed from 5.1714 million yuan to 6.684 million yuan.
Although the total cost of illegally published false advertisements by the appellant company should be changed from 5.1714 million yuan to 6.684 million yuan, 3.54 million yuan of the advertising contract amount involved in the case has not been delivered and published, and the amount of advertising that has not been delivered and published accounts for a large proportion of it. circumstances should be considered as mitigating circumstances.
Considering the above factors, the respondent Tianhe Market Supervision Bureau imposed a total fine of 23,271,300 yuan on the appellant company for publishing false advertisements, which is 3.48 times the illegal advertising fee of 6.684 million yuan. It does not exceed the legal range and is consistent with this case. actual. In addition, the appellant's company was ordered to stop publishing illegal advertisements for publishing advertisements that harmed the country's dignity or interests, and was fined 800,000 yuan. The combined fine totaled 24,071,300 yuan. The penalty result was not inappropriate, and this court still upheld it.
Judge’s Comment
False advertising means that the content of the advertisement is false or easily misleading. One means that the content of the product promotion is inconsistent with the actual quality of the goods or services provided, and the other means that it may make the target of the promotion or Product promotion that causes people affected by propaganda to have wrong associations with the true condition of the product, thus affecting their purchasing decisions. The content of such advertisements is often exaggerated, ambiguous, and misleading.
The identification of false advertising has the following four key points: First, the main subjects of false advertising include advertisers, advertising operators and advertising publishers. Second, false advertising must occur during the commercial promotion of goods or services. Third, false advertising should be deceptive, that is, false and misleading. Fourth, false advertising may not only damage the legitimate rights and interests of consumers, but also infringe on the fair competition rights of other operators and disrupt market order.
In this case, the food and drug regulatory authorities comprehensively strengthened food and drug safety governance and supervision in accordance with General Secretary Xi Jinping’s four strictest standards. This alerts companies to operate with integrity and compliance in accordance with the law and avoid illegal activities such as false propaganda, so that they can develop healthily and sustainably in the fierce market competition.
[Source: Guangzhou Railway Transport Intermediate Court]
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