Fact: The consumer sued the Intermediate People's Court of Wuxi City, Jiangsu Province, for publicizing the efficacy of the disease treatment of "Jinmarui GABA Natto" sold by a health management consulting company in Wuxi.
Opinion: The consumer believes that the enterprise involved in the case high-profile publicity of the food involved in the case is a miracle drug, which has the effect of dissolving thrombosis to eliminate plaque and reverse atherosclerosis, and deliberately conceals that the food involved in the case is a food-grade commodity; the enterprise involved in the case advertises natto kinase, but its hand is ordinary natto food, which is misleading and fraudulent to consumers; ordinary natto food contains ingredients that do not protect human health, and the enterprises involved in the case sell food that does not meet the requirements of personal safety, infringing on the consumer's right to health. A company in Wuxi believes that the food involved in the case is imported from Japan with food, the meaning of the Japanese logo is nattokinase, the certificate issued by the Japanese side contains nattokinase, and its sale is a re-branded food that does not change the name of nattokinase, natto food contains nattokinase ingredients, and there is no counterfeit drug sales, there is no false publicity and misleading to consumers; consumers have no evidence to prove that the food involved in the case caused their losses.
First-instance judgment result: Judgment: A company in Wuxi paid three times the compensation.
Second-instance judgment result: Judgment: The appeal is rejected and the original judgment is upheld.
Intermediate People's Court of Wuxi City, Jiangsu Province
Civil judgments
(2020) Su 02 Min Zhong No. 142
Appellant (plaintiff in the original trial): Yang Mou, male, born in 1938, Han ethnicity, living in Xishan District, Wuxi City.
Entrusted litigation agent: Gu Haifen (wife of Yang Mou), female, born in 1945, Han ethnicity, living in Xishan District, Wuxi City.
Appellee (defendant in the original trial): A health management consulting company in Wuxi, domiciled in Jiefang West Road, Wuxi City, unified social credit code 91320202331291383A.
Legal representative: Guo Yonggang, the general manager of the company.
Entrusted litigation agent: Fu Qiang, lawyer of Jiangsu Qiuben Law Firm.
The appellant, Mr. Yang, appealed to this court against the (2019) Su 0213 Min Chu No. 4986 Civil Judgment of the Liangxi District People's Court of Wuxi City in connection with a dispute over the liability of the product seller of a certain health management consulting company in Wuxi (hereinafter referred to as a certain company in Wuxi). After accepting the case on January 5, 2020, this court formed a collegial panel to hear the case in accordance with law, and the trial has now been concluded.
Yang's appeal request: the original judgment was revoked, and a company in Wuxi was sentenced to increase the compensation price by 11,560 yuan on the basis of three times the compensation price, and at the same time increase the compensation of ten times the price according to the provisions of the Food Safety Law, and a total of 127,160 yuan (11,560 + 11,560×10) should be compensated. Facts and reasons: 1. According to the provisions of article 55 of the Consumer Rights and Interests Protection Law on punitive damages, it may claim to increase the damages suffered, and the amount of the increased compensation is three times the purchase price, but the first instance only ordered a company in Wuxi to compensate three times the continuous price, and did not compensate it for the loss of the price already paid. In this case, a company in Wuxi should also be ordered to compensate its price of 11,560 yuan. 2. Article 148 of the Food Safety Law stipulates that in addition to claiming compensation for losses, consumers may also demand compensation from the producer or seller for compensation ten times the price for the production of food that does not meet food safety standards or the sale of food that is known to be in violation of food safety standards. The evidence provided by the first instance was not objectively reviewed. According to page 23 of the promotional materials of a company in Wuxi, it can be reflected that ordinary natto food contains three substances with side effects: purines, soy isoflavones, vitamin K2, and the harm of these three substances is clear to suitable and unsuitable people. When a company in Wuxi was selling ON brands, it only had a nutrition ingredient list on the product packaging box, deliberately concealed 3 substances with side effects, concealed the harmfulness and the people who were suitable for taking and not suitable for service. His wife took the product for about three months, felt pain in her toes, the hospital checked for increased uric acid, and then took drugs to treat gout, which slowly eased. In addition, his wife's previous physical examination showed bilateral breast hyperplasia, and it should be contraindicated to taking this product. Because a company in Wuxi concealed the people who were contraindicated, it was taken by mistake. 3. The certificate presented by the manufacturer only proves that there is no purine, soy isoflavones, vitamin K2 in GABA nattokinase, and does not prove that ordinary natto foods do not contain the above three substances with side effects. In addition, the certificate presented by a company in Wuxi in the name of the Japan Institute of Biological Sciences Co., Ltd. was forged evidence. Regarding the evidence provided by a company in Wuxi on customs imports, first of all, a company in Wuxi used natto food produced on September 14, 2018 to prove that the GABA natto food produced on April 12, 2014 was imported legally, of qualified quality, and had no legal basis. Secondly, there is no inspection and quarantine report in the inspection and quarantine data provided by a company in Wuxi, which cannot prove that the product is qualified or have a product certificate. Third, the unit price, total price and tax rate of the goods in the payment of customs duties provided by a company in Wuxi were smeared, and there was no clear price on the food packaging box, reflecting that a company in Wuxi annihilated the evidence and committed price fraud. Finally, on the customs import declaration provided by a company in Wuxi, the same batch of goods and the same weight were put into storage at different customs and at different times, and the relevant evidence of customs entry provided for the second time was only the weight of the goods, and the other documents were exactly the same. In addition, the three certificates involving English provided by a company in Wuxi did not provide translations, and they were not cross-examined at the first instance, and they suspected that the three certificates were also forged. In summary, the evidence provided by a company in Wuxi was illegal and should not be accepted by the court.
A company in Wuxi argued that the original judgment found that the facts were clear and the law was correct, and requested that the appeal be rejected and the original judgment upheld. 1. Regarding the refund of the price of the purchased goods, the first-instance judgment has clearly stated that the product has been taken away by Yang and cannot be returned, so there is no so-called return of the payment. 2. The products it sells comply with China's food safety standards. The products it sells have legal imported food sources, corresponding inspection and quarantine certificates for imported goods, and clear Chinese labels, origins and the names and addresses of domestic agents on the outer packaging. The products it sells do not have the corresponding facts that do not meet China's food safety standards, and there are no relevant administrative penalties related to food safety. Yang's claim that the products he sold violated safety standards was not confirmed by evidence. The products it sells have a formal purchase channel, the source is legal, and it should be determined that there is no safety problem. This case should reject Yang's claim of ten times the compensation issue. 3. The other reasons stated by Yang in the appeal do not exist at all. 4. After the first-instance judgment, he has already paid compensation to Yang according to the amount of compensation in the first-instance judgment.
Mr. Yang filed a litigation request with the court of first instance: requesting that a company in Wuxi be ordered to compensate and fine a total of 201,380 yuan. Later, the litigation claims were changed to compensation and fines totaling 178,400 yuan (11,560 + 11,560×3 = 46,240; 11,560 + 11560×10 = 127,160 yuan; fines of 5,000 yuan, a total of 178,400 yuan for the three parts). Facts and reasons: On November 7, 2017, it spent a total of 11,560 yuan on the purchase of Jinmairui GABA products in a company in Wuxi, and a company in Wuxi high-profile publicized that GABA is a miracle drug, which has the effect of dissolving blood clots to eliminate plaque and reverse atherosclerosis, and deliberately concealed the effect of Jinmairui GABA as a food-grade commodity. In order to prove the role of GABA in thrombolysis and plaque elimination, a company in Wuxi invited experts and professors to give lectures to publicize, two men and two women made false certificates, and organized people who listened to the lectures to conduct color Doppler ultrasound diagnosis for free, proving that GABA had a drug effect. A company in Wuxi advertises nattokinase, which is also nattokinase on the receipt issued by the company, but it is natto food, ordinary natto food is different from natto kinase, and a company in Wuxi has misleading and defrauded consumers, and claims triple compensation according to the "Law of the People's Republic of China on the Protection of Consumer Rights and Interests". Ordinary natto food contains ingredients that do not protect human health, containing purines that cause high uric acid, gout and kidney disease, as well as soybean isoflavones, K2 ingredients, his wife Gu Haifen took natto food for about three months, there was toe pain, high uric acid symptoms, after taking drugs to alleviate, a company in Wuxi sold food that does not meet the requirements of personal safety, infringing on the health rights of consumers, should be in accordance with the "Food Safety Law of the People's Republic of China" to bear ten times the punitive damages. The natto food sold by the company is priced at 963.3 yuan per box and less than 60 yuan in Japan, and the sales product box is not marked, and according to the Price Law of the People's Republic of China, a fine of 5,000 yuan should be imposed, so the lawsuit was filed.
A company in Wuxi argued in the first instance that its company and Yang mou is a normal trading relationship, GABA nattokinase is a qualified product, the price is reasonable, the product is imported from Japan to food, the meaning of the Japanese logo is natto kinase, the certificate issued by the Japanese side contains natto kinase, its sales are re-oem food does not change the name of natto kinase, natto food contains natto kinase ingredients, and there is no counterfeit drug sales, there is no false publicity and misleading for Yang; Yang also has no evidence to prove that the product caused its losses. There is no factual or legal basis for the claim.
The court of first instance found that the facts were as follows: On September 1, 2017, a company in Wuxi obtained the "Power of Attorney for the Sale of Health Food" from Linyi Boli Weijian Technology Co., Ltd., stating: A company in Wuxi is hereby entrusted with the sales and after-sales service of Jinmairui GABA Natto Food in Wuxi City. The entrustment period is from January 1, 2017 to December 31, 2018.
A company in Wuxi has organized many publicity meetings for the sale of products, declaring to Yang and others that its company's products contain nattokinase, nattokinase has an effect on thrombolysis, as a health care care for cardiovascular and cerebrovascular diseases, also said that natto powder and nattokinase have a difference, natto powder contains harmful ingredients such as purines, and the products promoted by its company do not contain harmful ingredients such as purines, have health care effects, and organize Yang's wife Gu Haifen and others to the hospital for Doppler ultrasonography in the name of seeing whether there are plaques in the blood vessels of consumers.
On November 7, 2017, Yang purchased Jinmai Rui natto products from a company in Wuxi, spending a total of 11,560 yuan. A company in Wuxi issued a "receipt", the name of the product marked on the receipt is "nattokinase", the unit price is 12580 yuan, minus the subsidy of 1000 yuan and the box of 20 yuan, a total of 11560 yuan.
The outer packaging Chinese logo of the product sold by a company in Wuxi is marked: the product name "Jinmairui GABA Natto Food", the ingredients are natto (soybean, protease), soybean oil, citric acid fatty acid glycerides, caramel color, modified soybean phospholipids, Y-aminobutyric acid (GABA), the country of origin Japan, China's general distribution Linyi Boli Weijian Technology Co., Ltd., the manufacturer of the Japanese Institute of Biological Sciences, the nutritional components are energy, protein, fat, carbohydrates, sodium. A company in Wuxi provided evidence such as the "Inspection and Quarantine Certificate for Imported Goods", the "Special Payment Letter for Customs Import Tariffs", and the certificate of the Japan Institute of Biological Sciences Co., Ltd. to prove that the imported food is of legal origin and is non-toxic and harmless to the human body.
The first instance also found that in order to publicize its products, a company in Wuxi specially provided a brochure of "Golden Pulse Rui GABA Nattokinase", which said that "the discovery of the miracle drug GABA", GABA has eight major effects such as lowering blood pressure, preventing and treating diabetes, and anti-aging.
The court of first instance held that, pursuant to Article 20 of the Law of the People's Republic of China on the Protection of Consumer Rights and Interests, business operators providing consumers with information such as the quality, performance, use, and validity period of goods or services should be truthful and comprehensive, and must not make false or misleading publicity. According to the relevant provisions of the Advertising Law, ordinary food must not use medical terms or terms that are easily confused with drugs, but a company in Wuxi deliberately exaggerates that the nattokinase contained in the product has a thrombolytic and plaque-relieving effect, which has an effect on cardiovascular and cerebrovascular and health care, and by organizing consumers to go to the hospital for color Doppler ultrasound examination, so that consumers can form an impression related to the product and drugs, so as to achieve the purpose of misleading consumers. At the same time, a company in Wuxi issued a receipt to consumers with the name of "nattokinase", and the actual product sold was Jinmairui natto food, and whether the product contained nattokinase was not marked in the outsourced assembly materials and nutritional components of the product. Therefore, it can be found that a company in Wuxi made false publicity about the efficacy of the products involved in the case, issued receipts that were inconsistent with the names of the products sold, misled consumers, and constituted fraud against consumers. According to Article 55 of the Law of the People's Republic of China on the Protection of the Rights and Interests of Consumers, where proprietors provide goods or services fraudulently, they shall increase the compensation for the losses they have suffered at the request of the consumer, and the amount of the increased compensation shall be three times the price of the goods purchased by the consumer or the cost of receiving the service; if the amount of additional compensation is less than 500 yuan, it shall be 500 yuan. Therefore, the court upheld Yang's claim that a company in Wuxi pay three times the compensation. The products purchased by Yang from a company in Wuxi no longer exist and cannot be returned, so the payment will not be returned.
Regarding Yang's claim that Natto Food caused his wife Gu Haifen to have toe pain and high uric acid symptoms when taking the product, that a company in Wuxi sold food that did not meet the requirements for ensuring personal safety, infringed on the consumer's right to health, and should bear ten times the punitive damages in accordance with the Food Safety Law of the People's Republic of China, the court held that according to the relevant requirements of the Food Safety Law, the imported food sold by a company in Wuxi had a Chinese label on it, and stated the origin of the food and the name, address and contact information of the domestic agent, Provided the relevant certificates of China's entry-exit inspection and quarantine agencies, and Yang failed to produce evidence to prove that the food did not meet China's food safety standards, at the same time, the litigation request and the above-mentioned litigation claims submitted under the Consumer Rights and Interests Protection Law could not be claimed at the same time, and if the product caused damage to Gu Haifen, the claim that the rights owner system Gu Haifen was not the same legal relationship as this case, so the court did not support Yang's litigation claim. For Yang Mou's claim for a fine of 5,000 yuan, because the fine is an administrative punishment measure of the administrative organ, the non-civil subject's claim for compensation scope is also not supported.
Accordingly, the court of first instance rendered a judgment in accordance with the provisions of Articles 16, 20 and 55, Paragraph 1 of the Law of the People's Republic of China on the Protection of Consumer Rights and Interests, and Article 2 of several Provisions of the Supreme People's Court on Evidence in Civil Proceedings: First, a company in Wuxi paid Yang 34,680 yuan in compensation within 10 days from the effective date of the judgment. 2. Reject Yang's other litigation claims. If the obligation to pay money is not performed within the period specified in the judgment, the interest on the debt during the period of delay shall be doubled in accordance with the provisions of Article 253 of the Civil Procedure Law of the People's Republic of China. The litigation fee was halved and charged a total of 2160 yuan, which was borne by Yang X 1788 yuan, and a company in Wuxi was charged 372 yuan.
The second-instance trial confirms the facts that have been ascertained at the first instance.
The second-instance trial added that a company in Wuxi first provided a Copy of the "Inspection and Quarantine Certificate for Inbound Goods" dated October 22, 2018 in the first instance, showing that the port of entry was Tianjin, the date of entry was October 9, 2018, and the date of production of the goods was September 14, 2018. Because Yang believed that the time of his purchase of the product was November 7, 2017, the certificate could not reflect the situation of the batch of products he purchased, and then a company in Wuxi supplemented and provided a copy of the "Inspection and Quarantine Certificate of Inbound Goods" on June 1, 2017, showing that the port of entry was Tianjin, the entry date was May 5, 2017, and the date of production of the goods was April 12, 2017, and said that the certificate was for the batch of products purchased by Yang. Yang believes that the port of entry tianjin port on the "Inspection and Quarantine Certificate of Inbound Goods", and the import port Xingang Customs stated on the customs declaration of imported goods by the customs, the same product should not be two ports entering China.
In the second-instance trial, the two parties unanimously confirmed that a company in Wuxi had paid Yang the compensation and litigation costs payable in the first-instance judgment after the first-instance judgment.
The above facts are supported by the "Inspection and Quarantine Certificate for Imported Goods" and the statements of the parties in the first and second instance case files.
The Court considers that:
Paragraph 2 of Article 148 of the Food Safety Law of the People's Republic of China stipulates that if a consumer produces food that does not meet food safety standards or deals in food that he knows does not meet food safety standards, in addition to claiming compensation for losses, he 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. At the same time, Article 91 of the Law stipulates that the state entry-exit inspection and quarantine department shall supervise and manage the safety of import and export food. In this case, the outer packaging of the products sold by a company in Wuxi had a Chinese label showing that the product name was "Jinmai rui GABA natto food", and indicating the origin of the food and the name and address of the domestic agent, etc. A company in Wuxi also provided relevant certificates from China's entry-exit inspection and quarantine agencies. After review, there is no contradiction between the "Inspection and Quarantine Certificate of Inbound Goods" provided by a company in Wuxi and the import port in the customs declaration form for imported goods, and there is also a Xingang Customs in Tianjin, so there is no contradiction between the import port Xingang Customs stated on the customs declaration for imported goods and the port of entry shown in the "Inspection and Quarantine Certificate for Inbound Goods" being Tianjin. In the case that the product has passed the quarantine supervision and management of the national entry-exit inspection and quarantine department and approved for import, Yang Mou now claims that the product does not meet food safety standards should be further proved. At present, Yang Mou only claims that the product does not meet food safety standards based on the fact that the ordinary natto food reflected in the promotional materials contains three substances with side effects, namely purine, soybean isoflavones and vitamin K2. First of all, the authority of the publicity materials is difficult to confirm; secondly, it has not provided evidence to prove that the natto food involved in the case contains the above three substances; finally, China has not prohibited the use of natto as food, even if ordinary natto food contains the above substances, whether it must not meet the food safety standards should be further proved by Yang. Therefore, the evidence provided by Yang at present is not enough to prove that a company in Wuxi is operating food that it knows does not meet food safety standards, and it is not improper for the first instance to not support its request for ten times compensation.
Paragraph 1 of Article 55 of the Law of the People's Republic of China on the Protection of the Rights and Interests of Consumers stipulates that "where a business operator provides goods or services fraudulently, it shall increase the compensation for the losses suffered by the consumer in accordance with the requirements of the consumer, and the amount of the increased compensation shall be three times the price of the goods purchased by the consumer or the cost of receiving the service; if the amount of additional compensation is less than 500 yuan, it shall be 500 yuan." Where the law provides otherwise, follow those provisions". In accordance with these provisions, the court of first instance in this case has ordered a company in Wuxi to compensate Yang for three times the purchase price of the goods, that is, 34,680 yuan. Yang claimed that the first instance did not compensate him for the loss of the price already paid, because the product purchased by Yang from a company in Wuxi no longer existed and could not be returned, and the first instance did not order a company in Wuxi to return the 11,560 yuan paid by Yang. Yang's request to add 11,560 yuan to the compensation price on the basis of three times the price of compensation lacks legal basis, and this court does not support it.
In summary, Yang's appeal request cannot be established and should be rejected. The first instance found that the facts were clear, the law was applied correctly, and the judgment made was not improper, and should be upheld in accordance with law. In accordance with the provisions of subparagraph (1) of the first paragraph of article 170 of the Civil Procedure Law of the People's Republic of China, the judgment is as follows:
The appeal was dismissed and the original judgment was upheld.
The acceptance fee of the second-instance case is 2843 yuan, which is borne by the appellant Yang Mou.
This judgment is final.
Chief Judge Wang Jingjing
Judge Pan Xiaofeng
Judge Cang Yong
April 1, 2020
Clerk Jiang Yi
Source: Food Safety Weathervane
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