Not long ago, there were media reports that the police in Nanning, Guangxi, cracked a "fruit-flavored" e-cigarette case worth more than one million yuan, and seized more than 10,000 fruit-flavored cartridges, smoking utensils, and disposable e-cigarettes. After the introduction and implementation of the "national standard for electronic cigarettes", such illegal and criminal acts involving electronic cigarettes occur from time to time, in this regard, the Office of the State Tobacco Monopoly Administration recently issued a notice that it will carry out a special inspection of the order of the electronic cigarette market for a period of 4 months. So, how do consumers identify illegal e-cigarette products, which e-cigarette production and operation behaviors do not comply with current regulatory requirements, and what penalties will be imposed?
"Proxy" illegal e-cigarette agreements are invalid
At the beginning of the advent of e-cigarette products, because of their diversified flavors, coupled with the misleading propaganda of "help quit smoking" and "harmless to health", they quickly attracted many people, including some teenagers. Cute shapes such as mini "milk tea cups", "cola cans" and "planet cups", coupled with novel flavors such as fruits, coffee, and tea, make people ignore the harm of e-cigarettes. In fact, an e-cigarette is an e-cigarette that atomizes nicotine-containing e-liquid for smoking by means of built-in battery heating to achieve the satisfaction of smoking, which is essentially no different from traditional cigarettes. The "China Smoking Health Hazards Report 2020" released by the National Health Commission also pointed out that there is sufficient evidence that e-cigarettes are unsafe, will cause harm to health, and will also cause adverse consequences to the physical and mental health and growth of adolescents, and will induce teenagers to use cigarettes.
Due to the mixed e-cigarette industry, additive ingredients, nicotine content is not standardized, counterfeit and shoddy products are proliferated, and since 2018, the state has gradually strengthened the supervision of e-cigarettes, and has successively issued a number of management regulations. In 2021, the "Regulations for the Implementation of the Tobacco Monopoly Law of the People's Republic of China" added the content that "new tobacco products such as e-cigarettes shall be implemented with reference to the relevant provisions of these Regulations", which means that e-cigarettes have officially entered the era of "laws to follow" in the mainland. In 2022, the more detailed "Measures for the Administration of Electronic Cigarettes" and the "Mandatory National Standards for Electronic Cigarettes" were released, clarifying that e-cigarettes include cigarette cartridges, smoking devices and products sold in combination with cigarette cartridges and smoking devices, limiting the types of additives and nicotine content, and expressly prohibiting the sale of flavored e-cigarettes other than tobacco flavors and e-cigarettes that can add atomizers by themselves.
However, flavored e-cigarettes such as "milk tea cups" have not completely disappeared. Due to the consumption demand of the previous fruit-flavored e-cigarette audience, and the relevant groups still need time to adapt to the taste of the national standard e-cigarette, many products have been transferred to underground sales, giving illegal traders room to survive. According to media investigations, there are three main sources of non-national standard fruit-flavored e-cigarette products that are still circulating secretly: one is a small amount of inventory produced before the ban; the second is the imitation products produced recently by pasting fake brands and passing off as the inventory before the ban; and the third is the products that have been produced recently and should have been exported but secretly returned to the domestic market. In the face of the ban in the "Measures for the Administration of Electronic Cigarettes" that "e-cigarette products shall not be sold through information networks other than the e-cigarette transaction management platform specified in these Measures", there are still many "agents" who conduct "underground sales" through code words on online platforms such as Moments and Tieba. These prohibited e-cigarettes are in the gray area outside the supervision, do not meet the national mandatory standards, have problems such as the general lack of packaging or the falsification of manufacturers and production dates, and the product composition is unknown, which has certain safety hazards and is likely to affect the health of consumers. At the same time, illegal products also crowd out the market space for legal products.
In addition, some illegal e-cigarette "agents" will continue to develop and supply others through "franchising". However, according to the current regulatory provisions, the e-cigarette retail business should be licensed to operate, such "agents" have not obtained the tobacco monopoly wholesale and retail qualifications, and their development of the next company is also not qualified, and the products sold are illegal products, and the agency agreement between the two is actually invalid. In a dispute arising from the agency of e-cigarettes, Li wanted to open an e-cigarette shop in a shopping mall, and after signing an agency agreement with Zhang for a certain brand of e-cigarettes and paying for the goods, he knew that the other party did not have the qualifications to operate e-cigarettes and could not open a store, so Li sued for a refund of the payment, which was supported by the court.
The sale of e-cigarettes on WeChat without a license is related to the crime of illegal business operation
Tobacco production, wholesale and retail in mainland China implement a monopoly system, and all links must obtain qualifications in accordance with the provisions of the Tobacco Monopoly Law of the People's Republic of China before production and operation. However, at present, the underground business network of illegal e-cigarettes is huge and complex, and there is no legal qualification in all aspects of upstream production and downstream distribution, and if the circumstances are serious, once investigated, it is likely to constitute a crime. Article 1 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Law in Handling Criminal Cases Involving the Illegal Production and Sale of Tobacco Monopoly Products specifies five types of crimes that may be constituted, including the production and sale of counterfeit and shoddy tobacco monopoly products, infringement of intellectual property rights, and illegal operation of tobacco monopoly products.
In accordance with the provisions of the law, in violation of the national laws and regulations on the administration of tobacco monopoly, without the permission of the administrative department for tobacco monopoly, without the license of the tobacco monopoly production enterprise license, the tobacco monopoly wholesale enterprise license, the special tobacco monopoly business enterprise license, the tobacco monopoly retail license and other license certificates, the illegal operation of tobacco monopoly products, the circumstances are serious, in accordance with the provisions of article 252 of the Criminal Law, conviction and punishment as the crime of illegal business operation. When the amount of illegal business in e-cigarettes is more than 50,000 yuan or the amount of illegal gains is more than 20,000 yuan, it generally meets the criteria for the crime of illegal business operation, and will be sentenced to fixed-term imprisonment of not more than five years or short-term detention, and/or a fine of not less than one time but not more than five times the amount of illegal gains, and if the amount of illegal business is more than 250,000 yuan or the amount of illegal gains is more than 100,000 yuan, the circumstances are particularly serious, and they will face fixed-term imprisonment of not less than five years, and a fine of not less than one time but not more than five times the illegal gains or confiscation of property.
In one case, the defendant Jiang purchased a large number of e-cigarettes from the upline without applying for a tobacco monopoly retail license, and then contacted the buyer through WeChat, collected the money by means of WeChat, Alipay, bank transfer, etc., and sold them by express delivery, making a profit of tens of thousands of yuan. His father also constituted an accomplice for helping him contact buyers, receiving and delivering goods, and collecting part of the payment, and both father and son were eventually convicted and sentenced for illegal business operations.
"Top e-cigarettes" have become a new type of drug crime
It should also be noted that in recent years, there have been many cases of "top e-cigarettes", and e-cigarettes have become the "hardest hit area" for new drug crimes. This kind of "top e-cigarette" is generally added with methamphetamine, etomidate, synthetic cannabinoids and other ingredients, all of which are drugs in the legal sense. Because there is no obvious difference in appearance from ordinary e-cigarettes, it is very easy for people to go astray and unknowingly become addicted to drugs.
Not long ago, a woman in Nanchang City felt numb, dizzy, and confused because she was recommended to smoke the so-called "new e-cigarette" at a gathering of friends. In recent years, a number of criminal gangs that produce and sell "top e-cigarettes" have been punished, and e-cigarette consumers should take the initiative to resist "top e-cigarettes", and should be especially careful to be vigilant against the so-called "new products" that are "added" and "enjoyable" handed by others to avoid addiction due to inhalation.
In addition to this, illegal e-cigarettes can also be involved in smuggling crimes. Some e-cigarette consumers prefer foreign brands, but the mainland has always strictly supervised the import and export of e-cigarettes. According to the Regulations on the Implementation of the Tobacco Monopoly Law of the People's Republic of China and the Measures for the Administration of Electronic Cigarettes, imported e-cigarettes shall apply for a tobacco monopoly wholesale enterprise license, and the import and export plan must be submitted for approval and strictly implemented in accordance with the approved plan. At the same time, imported e-cigarette products sold in China shall pass the technical review and use the trademark approved for registration in China. Under such strict conditions, many criminals are unable to import foreign e-cigarettes from formal channels, so they can only choose to smuggle them at risk.
In one case, in order to seek illegal benefits, Zhang and Wang repeatedly ordered foreign brand cigarettes and e-cigarette cartridges from Japanese suppliers, and then used the duty-free quota of the crew of several ocean-going ships to transport the cigarettes and e-cigarette cartridges involved in the case into the country with the ship, and then Zhang and Wang smuggled the cigarettes and e-cigarette cartridges involved in the case into the country without declaring them by means of boat connection and truck transportation, evading millions of yuan in taxes payable. Zhang and Wang were sentenced to 10 years, three months and 10 years in prison, respectively, and fined 800,000 yuan and 600,000 yuan.
E-cigarettes should not step on the red line according to tobacco supervision
In practice, there are several types of administrative violations involving e-cigarettes that need to be focused on to avoid mistakenly stepping on the red line by ignoring regulatory requirements.
Article 22 of the "Measures for the Administration of Electronic Cigarettes" stipulates that it is prohibited to sell e-cigarette products to minors, and e-cigarette operators shall set up signs in a conspicuous position that do not sell e-cigarettes to minors, and shall require them to show their identity documents if it is difficult to determine whether they are minors. However, in life, there are still some e-cigarette operators who disregard the health of minors, and there are even offline physical stores that secretly sell e-cigarettes to students. Such operators either do not have a tobacco monopoly license, or they have a tobacco monopoly license but still ignore regulatory requirements. For example, according to the administrative penalty decision published by the Tobacco Monopoly Bureau in Shandong, a licensed e-cigarette sales store sold e-cigarette oil to minors and was fined 1,000 yuan; Where the amount involved in such illegal acts is relatively small, it does not constitute a crime and is generally subject to administrative punishment, but if the illegal gains are relatively high and the circumstances are serious, they will be transferred to the judicial organs for criminal responsibility.
For e-cigarette operators, advertising violations also occur from time to time, and attention should be paid to in store operations. China's advertising law prohibits the publication of tobacco advertisements in mass media or public places, public transportation, and outdoors, and offenders face penalties such as fines and revocation of business licenses. In an administrative violation case, the operator of an e-cigarette shop made two billboards using pictures and text he downloaded from the Internet, one of which displayed "real-time power control, upgrade the maze to prevent leakage, and the taste is soft and smooth", and the other displayed "E-cigarette, taste my moment", both advertisements contained pictures of e-cigarettes, and the store was finally fined 10,000 yuan.
For e-cigarette enthusiasts, it is important to know that although e-cigarettes can be brought on planes, high-speed trains and other means of transportation, they are prohibited from smoking like traditional cigarettes. EMU trains and aircraft are equipped with smoke alarm devices, once the electronic smoke smoke triggers the smoke detection system to automatically alarm, it will seriously affect the operation of trains and aircraft. According to relevant regulations, smoking on EMU trains and planes will face administrative penalties such as fines and detention, and may also be included in the credit management system, affecting future travel. Previously, a passenger smoked e-cigarettes in the cabin, causing the flight to be delayed for more than 70 minutes, and the passenger was finally given a penalty of five days of administrative detention. In addition, there are corresponding rules and quantity requirements for carrying and consigning e-cigarette smoking sets, cartridges, batteries, e-liquids, etc. by air, and the customs also has corresponding restrictions on the number of duty-free e-cigarette products that can be carried by passengers entering the country and traveling to and from Hong Kong, Macao and Taiwan.
This article was published in the 10th edition of Beijing Daily on April 17, 2024
Contributed by Beijing No. 4 Intermediate People's Court
Editor: Yuan Tianhe, Guo Jin
Review: Zhang Lei