At the same time period, another chestnut seller reported the same complaint.
The outer packaging of chestnuts was complained about with words describing the efficacy
The merchant suspected that the complainant's motives were not pure
On October 20, the news hotline of Huashang Daily 029-88880000 received a call from Mr. Xi'an Minren. Mr. Jen said that he was in the wholesale food business and knew many people who ran roast shops. Recently, some roasted food shops in the circle were complained to the market supervision department because the outer packaging bag containing hot chestnuts quoted a record from the "Compendium of Materia Medica", which was suspected of false publicity.
According to the photo provided by Mr. Ren, the back of the outer packaging bag of chestnut is printed with the words "According to the Compendium of Materia Medica, chestnut has the effects of nourishing the stomach and spleen, strengthening the waist and kidneys, invigorating blood and stopping bleeding, invigorating qi and thickening the stomach, nourishing beauty and prolonging life".
Regardless of whether or not there was any suspicion of false advertising, Mr. Jen believed that the complainant's motive was the problem.
"As far as I know, more than one store has been complained, and after the complainant contacted the merchant, he demanded compensation from the merchant on the condition of 'withdrawing the lawsuit', with an amount ranging from 500 to 5,000 yuan. We suspect that the same people are maliciously cracking down on counterfeiting and blackmailing. ”
Through Mr. Ren, a reporter from Huashang Daily Gale News contacted Mr. Wang, who runs a fruit and vegetable supermarket in the north of Xi'an. Just this week, Mr. Wang received a notice from the Tanjia Market Supervision and Administration Office of the Weiyang District Market Supervision and Administration Bureau in his jurisdiction that his store was quoted by a consumer in a chestnut packaging bag with the words "According to the Compendium of Materia Medica· · · · · · · ·" This line is suspected of false propaganda complaints.
The merchant explained to the complainant:
There is no fanfare about the efficacy, and the bag is placed underneath just for chestnuts
According to the phone number provided by the Tan family market supervision and management, Mr. Ren contacted the consumer.
"The other party demanded 1,000 yuan in compensation to reach a settlement. In the end, the communication was reduced from 1,000 yuan to 500 yuan. At this time, we have not yet agreed on a solution. ”
On the afternoon of the 20th, the reporter came to Mr. Wang's store. The stall of fried chestnuts is placed in front of the store, and the plastic sheets and light signs on the periphery only read "Qianxi" and "Fried chestnuts with sugar", and the packaging bags are placed on the side of the chestnut wok. Because of this complaint, Mr. Wang has replaced the old chestnut packaging bags and ordered a new batch of new ones.
In the presence of the reporter, Mr. Wang called the complaining consumer. The other party's number showed that it was from Haikou, Hainan, and it was a man who answered the phone with a distinct southern accent.
The other party said that he complained in accordance with Articles 148 and 73 of the Food Safety Law, and Article 148 states that if a consumer suffers damage due to food that does not meet food safety standards, he can claim compensation from the operator. Article 73 states that the content of food advertisements shall not involve disease prevention and treatment functions.
Mr. Wang said that there was no problem with the chestnuts sold in the shop and that a complaint under section 148 was not substantiated. Moreover, the chestnut packaging bags he used were sold uniformly in the market, and they were not deliberately designed by him. The other party retorted that when he bought it, the store used this bag to hold chestnuts, and he saw it as a consumer, which was false propaganda.
Mr. Wang questioned and asked whether the other party should buy chestnuts or bags first. He didn't advertise the efficacy with much fanfare on the countertop, and the bag was underneath. The other party said that there was nothing to say, and the minimum compensation of 500 yuan could be settled.
same time period
Other merchants reported the same thing
After hanging up the phone, Mr. Wang opened a dried fruit wholesale group from WeChat. On October 15th, a merchant Zeng Aite asked "the villagers who speculated on the goods, whether they have been complained about chestnut bags and then privately made money", he was complained about the day before yesterday, and the market supervision went to the store to verify. He knew that more than a dozen families in Xi'an had been extorted, and he was one of the victims.
"At the same time, in the same routine, I encountered the same thing as this merchant." Mr. Wang said. The reporter tried to contact the merchant through Mr. Wang, but was unable to reach him.
Is the paragraph with the "Compendium of Materia Medica" printed on the chestnut packaging bag suspected of false propaganda? (The reporter checked that the words quoted on the packaging bag are not the original text of the "Compendium of Materia Medica", but should be translated into ancient texts.) Is the complainant behind him, like Mr. Wang and Mr. Ren, who suspect that it is a group of professional counterfeiters for the purpose of extortion? In order to further verify the matter, the reporter then came to the Tanjia Market Supervision and Management Office. However, due to weekends, the office did not go to work. The duty room of the Weiyang District Market Supervision and Administration Bureau provided the reporter with two office phones and the director's phone number of the Tanjia Market Supervision and Administration Office, but none of them were connected.
Lawyer's Statement:
The "Compendium of Materia Medica" is quoted on the chestnut packaging bag to prove that the divine effect violates the "Advertising Law"
However, the professional anti-counterfeiter demanded compensation before the case could be withdrawn, revealing that his motives were impure and suspected of extortion
Zhao Liangshan, a senior partner of Shaanxi Hengda Law Firm and a well-known public interest lawyer, said:
Strictly speaking, in violation of Article 28 of the Advertising Law, the use of fictitious, forged or unverifiable scientific research results, statistical data, survey results, abstracts, quotations and other information as supporting materials constitutes false advertising.
Zhao Liangshan said that although the "Interpretation on Several Issues Concerning the Application of Law in the Trial of Food and Drug Punitive Damages Dispute Cases", which came into effect on August 22, 2024, clearly stipulates the code of conduct for professional anti-counterfeiters. If a professional anti-counterfeiter knows that the food does not meet safety standards, makes multiple purchases in a short period of time and sues for compensation multiple times, the court will support his claim. To a certain extent, the Interpretation affirms the anti-counterfeiting behavior of professional anti-counterfeiters, and even encourages professional anti-counterfeiters to crack down on counterfeiting, but the premise is that the compensation claims of professional anti-counterfeiters are within a reasonable range. What's more, the "Interpretation" also makes it clear that if it is maliciously creating a false image, seeking compensation by means of complaints, lawsuits, etc., and is suspected of extortion, it will be transferred to the public security organs for handling. In other words, if a professional counterfeiter crosses the boundary or bottom line, he is suspected of extortion.
Zhao Liangshan pointed out that specifically to this incident, the counterfeiter grabbed the record of quoting the "Compendium of Materia Medica" on the packaging bag, complained to the Municipal Supervision Bureau, and asked the merchant to compensate 500 yuan before withdrawing the case, which exposed the impure motive of the counterfeiter, and the real purpose was not to fight counterfeiting, but to make profits, and the "anti-counterfeiting" changed its taste. In reply to the NPC deputies' proposal on guiding and regulating professional anti-counterfeiters, the Supreme People's Court pointed out that some professional anti-counterfeiting behaviors seriously violate the principle of good faith, ignore judicial authority, and waste judicial resources. Therefore, if the person involved in this incident wears the cloak of anti-counterfeiting and achieves the purpose of demanding money through coercion methods such as reporting, complaining, and not withdrawing the lawsuit, he is suspected of extortion, and in combination with the provisions of the "Judicial Interpretations of the Supreme People's Court and the Supreme People's Court on Handling Criminal Cases of Extortion" and the "Implementation Rules" of the Shaanxi Provincial High Court, extorting more than 3,000 yuan constitutes the crime of extortion. If it is less than 3,000 yuan, the person involved in the case may be administratively detained or fined in accordance with article 49 of the "Public Security Administration Punishment Law".
Zhao Liangshan reminded that in order to uphold justice and prevent businesses from infringing on the public interest, the anti-counterfeiters did not hesitate to bravely fight against counterfeiting, which is worthy of recognition and advocacy. However, if the anti-counterfeiters use the anti-counterfeiting as a gimmick to cover up their illegal purposes for the sake of selfish desires and profits, then the "good deeds" will change their flavor and evolve into illegal crimes, and they will be brought to justice if they take the blame for themselves.
Lawyer Huang Jingzhi, senior partner of Beijing Jingshi (Xi'an) Law Firm, analyzed:
From the perspective of the legality of food packaging and promotion, it is indeed inappropriate for food to be advertised as having medicinal or disease treatment functions. Paragraph 1 of Article 73 of the Food Safety Law clearly stipulates that the content of food advertisements shall be true and legal, shall not contain false content, and shall not involve disease prevention and treatment functions. As a common food, chestnut may mislead consumers into believing that the food has medicinal and therapeutic effects if the record of the "Compendium of Materia Medica" is quoted on the packaging bag.
From the perspective of the legality of the complainant's motives and behavior, if the complainant is complaining as a consumer, then his behavior is lawful and compliant. However, if the complainant uses the complaint as a means to require the merchant to pay a "settlement fee" to withdraw the lawsuit, and uses this as a means of making profits, then this kind of behavior no longer has the legitimate purpose of protecting personal rights and property rights, and objectively will also lead to a serious waste of administrative public resources.
From a legislative perspective, the Interim Rules for the Publicity of Complaint Information for Market Regulation, the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Food and Drug Punitive Damages Dispute Cases, and the Regulations for the Implementation of the People's Republic of China Consumer Rights and Interests Protection Law have been regulated accordingly on the abuse of the right to complain and the pursuit of improper benefits by professional anti-counterfeiters. If the complainant is indeed engaged in malicious extortion in the name of cracking down on counterfeiting, the merchant may provide relevant evidence to the market supervision and administration department and request that it be investigated and handled.
Huashang Daily Gale News Reporter Chang Pengduo / Wen Deng Xiaowei / Picture
Source: Huashang Net-Huashang Daily