Wuxi Binhu District Market Supervision and Administration Bureau
Administrative Penalty Decision
Xibin Municipal Supervision Office Zi [2020] No. 00215
Party: Wuxi Perch E-commerce Co., Ltd
The name of the subject qualification license: the business license is unified
Social credit code (registration number): 91320211MA1YEN5J6U
Residence (address): 1201, Building 1, k-park Center Building, No. 50 Xiuxi Road, Binhu District, Wuxi City
Legal representative (person in charge, operator): Fu Minglong
On June 5, 2020, when our bureau received a report that the "whey protein perch meal" food sold by the parties in the "Perch Flagship Store" online store of Tmall Mall, the brochure of another food mailed to it, "Brown Sugar Rose Perch Meal", contained illegal content and was required to be investigated. The parties' conduct was suspected of violating the relevant provisions of the Advertising Law of the People's Republic of China, and in accordance with the provisions of the Interim Provisions on Administrative Punishment Procedures for Market Supervision and Management, with the approval of the Director General, the case was filed and investigated on June 15, 2020. On October 16, 2020, our bureau also received a report that the food of "whey protein perch meal" sold by the parties in the online store contained "pure natural" content, and because the subjects involved in the case were all parties, they were approved by the director and investigated and handled. In this case, the procedures for the extension of the first and second extensions were handled.
After investigation, the parties concerned are business units mainly engaged in e-commerce and food sales, and have opened an online store named "Perch Flagship Store" in Tmall Mall, which contains "pure natural" content on the advertising page selling "Whey Protein Perch Meal", and the brochure of another food "Brown Sugar Rose Perch Meal" mailed to consumers contains the text content of "promoting wound recovery, accelerating lochi discharge, enhancing metabolism, increasing immunity, reducing gastrointestinal burden, alleviating postpartum constipation, maintaining nutritional supply, and preventing postpartum anemia".
It is now ascertained that the "whey protein perch meal" and "brown sugar rose sea bass meal" involved in the case are ordinary foods, of which "whey protein perch meal" contains non-natural ingredients such as tricalcium phosphate and prickly cloud gel, which are actually not purely natural, involving the "pure natural" advertising content was produced by the parties themselves in December 2019 and published in the Tmall Mall online store; the content of the "brown sugar rose sea bass meal" advertisement cannot provide corresponding basis or proof, and is produced by the production company entrusted by the production company after the parties collect, sort, edit, and design. A total of 200 copies were printed and distributed in March 2020, and 160 copies have been mailed to consumers, and the above advertising costs cannot be calculated.
After the incident, the parties actively cooperated with the investigation, truthfully stated the facts of the violation, took the initiative to provide evidentiary materials, deleted the improper content and took the initiative to destroy the remaining pamphlets.
The above facts are proved by the main evidence such as on-site records, interrogation records, copies of the parties' business licenses, copies of the legal representative's ID cards, printouts of relevant contents of the online store, sales records, and printouts of the correction of the webpage collected by law enforcement personnel in the process of investigation and evidence collection, and a chain of evidence has been formed, which is sufficient to prove the suspected illegal acts of the parties.
On November 18, 2020, the Bureau served the parties with the Notice of Administrative Punishment (Notice of Administrative Punishment) No. 111802 of the Xibin Municipal Supervision Office (2020) Xuelang, and the parties did not submit written statements and defense opinions within the statutory time limit.
The parties used the e-commerce platform to publish advertisements with false content, which is likely to cause misunderstanding by ordinary consumers, violating the provisions of article 28, paragraph 1, and paragraph 2(5) of the Advertising Law of the People's Republic of China, and according to the provisions of article 55, paragraph 1 of the Advertising Law of the People's Republic of China, the parties should bear corresponding legal liabilities.
The party's use of a brochure to publish advertisements using medical terms for ordinary food violates the provisions of Article 17 of the Advertising Law of the People's Republic of China, and according to the provisions of Article 58, Paragraph 1, Item (2) of the Advertising Law of the People's Republic of China, the parties should bear corresponding legal liabilities.
In view of the special impact of the new crown pneumonia epidemic, as well as the fact that after the incident, the parties actively cooperated with the investigation, truthfully stated the facts of the violation, took the initiative to provide evidentiary materials, deleted the improper content and actively destroyed the remaining brochures, thus reducing the harmful consequences of the illegal acts, in line with the first paragraph (1) of article 27 of the Administrative Punishment Law of the People's Republic of China and the Guiding Opinions of the State Administration for Market Regulation on Regulating the Discretionary Power of Administrative Penalties for Market Supervision and Management. Part (7) The mitigating circumstances provided for in article 3(1) of the discretionary circumstances of administrative punishment. For the illegal acts of the parties publishing illegal advertisements, in accordance with the provisions of the first paragraph of article 55 of the Advertising Law of the People's Republic of China and the first paragraph (2) of the first paragraph of article 58 of the Advertising Law of the People's Republic of China, it is recommended to order the publication of advertisements to be stopped, eliminate the impact within the corresponding scope, and reduce the punishment as follows: a fine of 10,000 yuan and handed over to the state treasury.
The parties concerned shall, within 15 days from the date of receipt of this administrative punishment decision, pay the fines and forfeitures to the Bank of Jiangsu. If the fine is not paid when due, in accordance with Article 51 of the Administrative Punishment Law of the People's Republic of China and Article 45 of the Administrative Compulsory Law of the People's Republic of China, the Bureau will impose a fine of 3% of the amount of the fine every day (the amount of the additional fine shall not exceed the amount of the fine), and when it expires, it will apply to the people's court for compulsory enforcement in accordance with law.
If your unit is not satisfied with this administrative punishment decision, you may apply for reconsideration to the Wuxi Binhu District People's Government or the Wuxi Municipal Market Supervision and Administration Bureau within 60 days of receiving this administrative punishment decision; you can also file an administrative lawsuit with the Wuxi Liangxi District People's Court within six months. During the period of applying for administrative reconsideration or initiating an administrative lawsuit, the enforcement of the administrative punishment shall not be stopped.