Qingjiangpu District People's Court of Huai'an City
Civil judgments
(2018) Su 0812 Min Chu No. 11276
Plaintiff: **, male, born in 1977, Han ethnicity, living in Qingjiangpu District, Huai'an City.
Defendant: A supermarket (Huai'an) Co., Ltd. Beijing Road store, domicile at No. 88, Beijing North Road, Huai'an City.
Person in charge: Ding Mou, the manager of the company.
Entrusted agent: Zhu Mou, an employee of the company.
Entrusted agent: Li Mou, a lawyer at Jiangsu Kaishiman Law Firm.
In a case in which the plaintiff** and the defendant, a supermarket (Huai'an) Co., Ltd., a seller of products on Beijing Road, were tried in public on December 19, 2018 after the court filed the case on December 3, 2018, the small claims procedure was applied in accordance with the law, and the plaintiff** and the defendant's entrusted agents Zhu X and Li X both attended the court to participate in the litigation. The case is now closed.
The plaintiff ** filed a litigation request with this court: requesting that the defendant be ordered to compensate the plaintiff for losses of 1,011.8 yuan (refund 11.8 yuan, compensation of 1,000 yuan) and bear the litigation costs of the case. Facts and reasons: The plaintiff purchased a bag of "a certain brand of chocolate pie strawberry flavor" at the defendant's place on October 11, 2018, with a unit price of 11.8 yuan, and after checking, it was found that the food illegally added food coloring "Temptation Red", according to the provisions of the "National Standard for Food Safety And Use Standards for Food Additives" (GB2760-2014), Temptation Red is not allowed to be added to cakes, but can only be used for color packaging on cakes. That is to say, the colorful decorations such as mounting flowers on the cake can be added to the temptation red instead of the cake can be added, and eating food that exceeds the range or adds food additives will cause harm to human health. Although the goods involved in the case passed the inspection and quarantine, the defendant did not enjoy the benefits of trust, the obligations that the defendant should bear as a seller were not exempted by the administrative license of the inspection and quarantine agency, and the defendant failed to fulfill the inspection obligation, resulting in the sale of food that exceeded the scope of food additives, and the provisions of article 148 of the Food Safety Law could be fully applied to safeguard the legitimate rights and interests of the plaintiff.
The defendant, a supermarket (Huai'an) Co., Ltd. Beijing Road Store, argued: 1. The plaintiff's subject qualifications in this case are not qualified, it does not belong to the category of consumers, and should not be protected by law, the plaintiff is based on the provisions of Article 148 of the Food Safety Law to claim compensation for the defendant, and the Food Safety Law clearly stipulates that consumers can claim compensation; 2. The defendant in this case has fulfilled a reasonable obligation to check, and the defendant does not meet the standard of knowing and is not applicable to punitive damages. According to Article 1 of the Minutes of discussion of several issues in the Trial of Consumer Rights and Interests Protection Dispute Cases by the Higher People's Court of Jiangsu Province and Articles 136 and 148 of the Food Safety Law, punitive damages apply to the seller's fault liability, that is, the punitive damages system is applied only when it is sold knowing that the product does not meet food safety standards. According to Article 3 of the Law of the People's Republic of China on The Inspection of Import and Export Commodities, the commodity inspection agency or the inspection agency licensed by the State Commodity Inspection Department shall carry out inspection of the import and export commodities in accordance with the law and the import and export commodities listed in the catalogue in Article 5 shall be inspected by the commodity inspection agency, and the preceding paragraph stipulates that the imported commodities shall not be sold or used without inspection, and shall not be exported without inspection, according to the provisions of paragraph 2 of Article 62 of the Food Safety Law, After the imported food should be inspected by the entry-exit inspection and quarantine agency, the customs shall be released on the basis of the certificate issued by the entry-exit inspection and quarantine agency, and the products involved in the case have obtained the legal certificate of the inspection and quarantine agency, so the defendant does not know that the food does not meet the food safety standards; 3. The plaintiff conducted the lawsuit against the same food in this case on the same factual grounds and litigation claims in Huaiyin District, Huai'an City, and the plaintiff's claim was rejected, the goods in this case met the food safety standards, and the goods in this case belonged to pastries. According to the food additive use standard (food safety national standard GB2760-2014) P106 page stipulates, the temptation red can be used to color on the pastry, according to the pastry term GB-T12140-2007P11 page clearly stipulates, the coloring on the pastry is the process of applying food additives or other accessories to the surface or internal organization (including the filling core) of the pastry. However, the plaintiff provided (2018) Su 0812 Min Chu No. 7062 Civil Judgment found that the temptation red was limited to the colored packaging on the pastry and not to the cake itself, and the second half of the sentence, rather than the cake itself, was added by the Qingjiangpu Court itself, which was an error in the application of law. At present, the plaintiff has no evidence to prove that the product in this case does not meet the food safety standards, and its claim has no factual and legal basis, and its litigation claim should be rejected.
After trial, this court found the following facts: On October 11, 2018, the plaintiff** purchased a bag of "a certain brand of chocolate pie strawberry flavor" at the Beijing Road store of the defendant supermarket (Huai'an) Co., Ltd. with a unit price of 11.8 yuan, and the defendant issued a shopping receipt on the same day. The outer packaging of the disputed product Chinese label identification: a brand of chocolate (strawberry flavor); country of origin: Malaysia; ingredients: wheat flour, white sugar, edible glucose, refined palm oil, corn starch, milk powder, cocoa powder, edible salt, potassium sorbate, pectin, sodium bicarbonate, ammonium bicarbonate, citric acid, temptation red, flavor, flavor.
Also checked, the "National Standard for Food Safety Food Additive Use Standard" (GB2760-2014) stipulates that the scope of permitted use of lure red and its aluminum lake is: frozen drinks; dried fruits (only dried apples); decorative fruits and vegetables; cooked beans; processed nuts and seeds; cocoa products, chocolate and chocolate products; powder balls; ready-to-eat grains, including milled oats (pieces); colored on pastries; baked food fillings and surface hanging pastes (biscuit fillings only); Western-style ham (smoked, smoked, Steamed ham) class; meat enema; edible animal casings of meat products; flavored syrups; solid compound seasonings; semi-solid compound seasonings; beverages; prepared wine; jelly; collagen casings; puffed foods. The appendix to the standard stipulates that the use of lure red additives is not allowed for baked goods fillings and hanging pastes for surface use (biscuit fillings and cake fillings only) (flavor pie fillings only) (pastry fillings only). The maximum use of lure red additive in baked goods fillings and surface hanging pastes (biscuit fillings only) is 0.1g/kg.
Re-investigation, Shenzhen Entry-Exit Inspection and Quarantine Bureau Food Inspection and Quarantine Technology Center inspection and testing results report shows that on October 11, 2017, October 25, 2017 sent for inspection of "a brand of chocolate pie strawberry flavor" in the temptation red additives of 8.2mg/kg, 15.1mg/kg, detection limit of 0.8mg/kg.
This court held that the plaintiff** purchased a bag of "strawberry flavor of a certain brand of chocolate pie" at the Beijing Road store of the defendant supermarket (Huai'an) Co., Ltd., and the defendant issued a shopping receipt for it, and the two parties formed a sales contract relationship, and did not violate the mandatory provisions of laws and regulations, which was legal and valid.
The outer packaging of the "strawberry flavor of a certain brand of chocolate pie" stated that the food additives included temptation red, and the "National Standard for Food Safety Standards for the Use of Food Additives" (GB2760-2014) stipulated that the permitted use of temptation red was limited to the color packaging on the pastries, and the baked food fillings (only biscuit fillings and cake fillings) (only flavor pie fillings) (only the pastry fillings) The allowable additives did not include temptation red, and the court believed that the products involved in the case belonged to food and should be strictly applied to food safety standards, so for the " The understanding of the scope of use of lure red in the national standard for food safety (GB2760-2014) on the scope of use of lure red should be strictly explained. The standard does not stipulate that baked food fillings (biscuit fillings and cake fillings only) (flavor pie fillings only) (pastry fillings only) are allowed to use temptation red, and the "strawberry flavor of a certain brand of chocolate pie" involved in the case belongs to baked pastry foods, and according to the defendant's statement, temptation red is used in the fillings of the food involved in the case, which is not within the scope of use of temptation red additives according to the "National Standard for Food Safety Standards for the Use of Food Additives". In the case that the food involved in the case does not belong to the classification of food that allows the addition of temptation red, a supermarket (Huai'an) Co., Ltd. Beijing Road Store failed to fulfill the obligation of inspection of the purchase and the corresponding duty of care, and the use of the additive by the food involved in the case did not meet the national standards for food safety, constituting that the business operator as stipulated in Article 148 of the Food Safety Law of the People's Republic of China knew the circumstances and should bear the punitive compensation liability for the food involved in the case. Therefore, the plaintiff's claim that the defendant refund the payment of 11.8 yuan for the "strawberry flavor of a certain brand of chocolate pie" and pay ten times the compensation of 1,000 yuan has a factual and legal basis, and this court supports it. At the same time, the plaintiff shall return the above-mentioned products purchased by the plaintiff to the defendant, and if it cannot be refunded, it shall deduct the corresponding payment for the goods.
In summary, in accordance with the provisions of Article 2, Paragraph 1, Item (6), Article 148, Paragraph 2, Article 150 Paragraph 1,(4), and Articles 142 and 162 of the Civil Procedure Law of the People's Republic of China, the judgment is as follows:
1. The defendant, a supermarket (Huai'an) Co., Ltd.'s Beijing Road store, returned the plaintiff's ** purchase price of 11.8 yuan within ten days after this judgment took effect, and the plaintiff** returned a bag of "a certain brand of chocolate pie strawberry flavor" from the Beijing Road store of the defendant supermarket (Huai'an) Co., Ltd. If it cannot be refunded at that time, the payment of 11.8 yuan will be deducted.
2. The defendant, a supermarket (Huai'an) Co., Ltd., Beijing Road Store, paid a lump sum of 1,000 yuan in damages to the plaintiff within 10 days after this judgment came into effect.
If the obligation to pay money is not performed within the period specified in this judgment, the interest on the debt during the period of delayed performance shall be doubled in accordance with the provisions of Article 253 of the Civil Procedure Law of the People's Republic of China.
The case acceptance fee of 25 yuan (which has been halved) was borne by the defendant, a supermarket (Huai'an) Co., Ltd. Beijing Road store.
This judgment is final.
Where, after this judgment takes effect in accordance with law, if one party refuses to perform the obligations set forth in this judgment on time, the other party may apply to this court for enforcement in accordance with articles 224, 236 and 239 of the Civil Procedure Law of the People's Republic of China, and the period for applying for enforcement shall be two years, calculated from the last day of the performance period provided for in the legal documents; Where the legal instrument provides for performance in installments, it shall be calculated from the last day of each performance period stipulated; Where a legal document does not provide for a period of performance, it shall be counted from the date on which the legal instrument takes effect. Application for suspension or interruption of the limitation period shall be subject to the provisions of applicable law on the suspension or interruption of the limitation period of action.
Judge Bai Ling
February 26, 2019
Judge's assistant Zhang Xiping
Clerk Wu Lin
Attached: Relevant legal provisions:
Food Safety Law of the People's Republic of China
Article 2: The following activities within the territory of the People's Republic of China shall comply with this Law:
(1) food production and processing (hereinafter referred to as food production), food circulation and catering services (hereinafter referred to as food business);
(2) production and operation of food additives;
(3) The production and operation of packaging materials, containers, detergents, disinfectants, and tools and equipment used in food production and operation (hereinafter referred to as "food-related products");
(4) Food producers and traders using food additives and food-related products;
(5) storage and transportation of food;
(6) Safety management of food, food additives and food-related products.
The quality and safety management of primary products derived from agriculture (hereinafter referred to as edible agricultural products) for consumption shall comply with the provisions of the Law of the People's Republic of China on the Quality and Safety of Agricultural Products. However, where the market sale of edible agricultural products, the formulation of relevant quality and safety standards, the publication of relevant safety information, and the provisions of this Law on agricultural inputs are made, the provisions of this Law shall be observed.
In the second paragraph of Article 148, if a consumer produces food that does not meet food safety standards or deals in food that he knows that it does not meet food safety standards, in addition to claiming compensation for losses, may also request from the producer or business operator to pay compensation of ten times the price or three times the loss; if the amount of additional compensation is less than 1,000 yuan, it shall be 1,000 yuan. However, except for the existence of defects in the labels and instructions of food that do not affect food safety and do not mislead consumers.
Article 150:The meaning of the following terms in this Law:
Food refers to all kinds of finished products and raw materials for human consumption or drinking, as well as articles that are both food and Chinese medicinal materials according to tradition, but do not include articles for therapeutic purposes.
Food safety means that food is non-toxic, harmless, meets the nutritional requirements that should be there, and does not cause any acute, subacute or chronic harm to human health.
Prepackaged food refers to food that is pre-packaged or made in packaging materials or containers.
Food additives refer to synthetic or natural substances, including nutritional enhancers, added to food to improve food quality and color, aroma, taste and for the needs of preservative, freshness and processing technology.
Packaging materials and containers used for food refer to paper, bamboo, wood, metal, enamel, ceramics, plastics, rubber, natural fibers, chemical fibers, glass and other products used for packaging and holding food or food additives, and coatings that directly contact food or food additives.
Tools and equipment used in food production and operation refer to machinery, pipes, conveyor belts, containers, utensils, tableware, etc. that directly contact food or food additives during the production, sale and use of food or food additives.
Detergents and disinfectants used in food refer to substances directly used to wash or disinfect food, tableware, drinking utensils, and tools, equipment or food packaging materials and containers that directly contact food.
Food shelf life refers to the period of time that food maintains quality under the specified storage conditions. 、
Foodborne diseases refer to infectious, toxic and other diseases caused by pathogenic factors entering the human body in food, including food poisoning.
Food safety accidents refer to accidents that originate from food such as foodborne diseases and food contamination and are harmful to human health or may be harmful.
Civil Procedure Law of the People's Republic of China
Article 142:When courtroom debates are concluded, a judgment shall be rendered in accordance with law. Where mediation is possible before a judgment, mediation may also be conducted, and where mediation fails, a timely and timely judgment shall be made.
Article 162:Where basic level people's courts and the courts they dispatch hear simple civil cases provided for in the first paragraph of article 157 of this Law, and the subject amount is less than 30 percent of the average annual salary of employed persons in each province, autonomous region, or municipality directly under the Central Government in the previous year, a final trial of first instance shall be carried out.
Source: Food Safety Weathervane
![The 5 hottest chocolate pie in Beijing, which is the best to eat[fig]](data:image/gif;base64,R0lGODlhAQABAIAAAP///wAAACwAAAAAAQABAAACAkQBADs=)