The applicable law for false publicity

? Wu Hedi

For false publicity, the Anti-Unfair Competition Law, Advertising Law and Food The Security Law and other laws have corresponding provisions. To correctly punish false propaganda, accurate application of the law is the key.

1. Legal application of false advertising of food

1. The act of using advertising to falsely promote food. Such behavior shall be punished in accordance with the provisions of the Advertising Law. This is because Article 140, Paragraph 1, of the Food Safety Law stipulates: “Violating the provisions of this Law, making false propaganda about food in advertisements to deceive consumers, or publishing unapproved documents, advertising content and approval documents Those who make inconsistent health food advertisements will be punished in accordance with the "Advertising Law of the People's Republic of China"

2. Use of meetings, lectures, health consultations, etc. to falsely promote food. . Such behavior shall be punished in accordance with the provisions of the Anti-Unfair Competition Law and the Implementation Regulations of the Food Safety Law. This is because on April 1, 2020, the General Office of the State Administration for Market Regulation clearly stated in the "Reply Letter on Issues Concerning the Application of Laws in Cases of False Publicity of Food" (Municipal Supervision Competition Letter (2020) No. 463): "Use meetings and lectures to If the performance, function, quality, etc. of food are false or misleading through various means such as , health consultation, etc., to deceive or mislead consumers, Article 20 of the Anti-Unfair Competition Law and other provisions shall apply. The supervision and inspection department shall order the illegal conduct to cease and impose a fine of not less than 200,000 yuan but not more than 1 million yuan; if the circumstances are serious, the person shall be fined not less than 1 million yuan but not more than 2 million yuan, and the business license may be revoked. If false promotion of food is carried out through methods such as lectures, health consultations, etc., the market supervision department will not only impose penalties in accordance with Article 20 of the Anti-Unfair Competition Law, but may also, depending on the circumstances, in accordance with Article 73 of the Implementation Regulations of the Food Safety Law. If there are any illegal gains, the illegal gains shall be confiscated; if the violation belongs to the unit, the legal representative, principal person in charge, directly responsible person in charge and other directly responsible personnel of the unit shall be punished in accordance with the provisions of Article 75 of the "Food Safety Law Implementation Regulations" Penalty shall be imposed."

2. The legal application of the "Anti-Unfair Competition Law" and the "Advertising Law" on false propaganda

Article 4 of the "Advertising Law" stipulates: "Advertising It must not contain false or misleading content, and must not deceive or mislead consumers. "Article 8 of the "Anti-Unfair Competition Law" stipulates: "Operators shall not disclose the performance, function, quality, sales status, user reviews, etc. of their products. Operators who have received honors and other information for making false or misleading commercial publicity shall not deceive or mislead consumers by organizing false transactions or other means to help other operators conduct false or misleading commercial publicity.” There are legal conflicts between the two laws regarding false propaganda. The general principles of legal application are as follows:

1. Judgment based on the method of publicity. It depends on whether it is promoted through advertising or other methods. If false publicity is carried out by means of advertising, the punishment shall be in accordance with the "Advertising Law of the People's Republic of China"; if false publicity is carried out by means other than advertising, the "Anti-Unfair Competition Law" shall be applied. "Penalty stipulated in the Act. As for whether false propaganda is advertising, it must be judged based on the definition of "advertising" in the Advertising Law. If the false publicity behavior constitutes false advertising, it shall be punished in accordance with the provisions of the Advertising Law.

Because Paragraph 2 of Article 20 of the Anti-Unfair Competition Law stipulates: “If an operator violates the provisions of Article 8 of this Law and publishes false advertisements, he shall be punished in accordance with the provisions of the Advertising Law of the People’s Republic of China. ”

2. Judge based on the content of the promotion. Looking at the content of false propaganda, generally speaking, false propaganda about enterprises based on basic information tends to be characterized as unfair competition. It is one of the corporate marketing strategies to properly promote the company's business reputation, operating status, and image in order to take the lead in market competition. However, exaggerating and fabricating facts for publicity is a typical act of unfair competition. It violates the market competition rules of good faith and destroys the fair and just market competition order. Therefore, it is inclined to apply the Anti-Unfair Competition Law.

3. Judge from the carrier of publicity. Looking at the carrier of false propaganda information, if the carrier of false propaganda is a media owned by a third party other than the operator such as newspapers, periodicals, magazines, television, movies, etc., the Advertising Law will generally apply first; if the false propaganda is The operator uses the media or channels under its own control to conduct it independently without interference from external forces, that is, the entire false propaganda behavior is carried out under the sole control of the operator, and others other than the operator do not have independent design, operation and other activities, then Tends to apply the Anti-Unfair Competition Law. For example, operators conduct false propaganda on their own websites, WeChat public accounts and other self-media.

4. Judge based on the object of the violation. Looking at the main objects of infringement by false advertising, if the false advertising only infringes on the legitimate rights and interests of other operators and undermines the market order of fair competition, or if the false advertising not only infringes on the legitimate rights and interests of consumers, but also infringes on other operators If the company has legitimate rights and interests, the Anti-Unfair Competition Law shall be applied first.

3. The application of law when there is both false publicity and violations of other laws and regulations

In practice, false publicity is usually intertwined with other illegal activities . When an operator violates several laws and regulations while making false propaganda, the key is to see whether the operator's behavior is one act or several acts. If it is essentially an act, qualitative punishment will be carried out in accordance with the laws and regulations with heavy penalties in accordance with the principles of the act of purpose absorbing the act of means, the act of focusing on the act of absorbing the act of light. If there are essentially several behaviors, then the several behaviors should be handled separately. The main situations are as follows.

Situation 1: When other behaviors that exist at the same time except false propaganda are independent, the false propaganda is not a means to achieve another illegal act, and each act has independent illegal act constituent elements , it should be determined that the party concerned has committed several illegal acts. For example, if an operator makes false publicity in the process of selling a product and at the same time engages in commercial bribery and false sales with prizes to promote the product, commercial bribery, false sales with prizes and false publicity are not the same act. Each act is independent of each other and constitutes several illegal acts, which should be characterized separately and punished together.

Scenario 2: When the false propaganda act is a means to commit other illegal acts and is inseparable from other acts, and the false publicity act cannot exist independently without other illegal acts, the false publicity act and other acts should be determined to be In implicated behavior, the party involved actually committed an illegal act. For example, if an operator makes false publicity in order to sell its products during the implementation of pyramid schemes, then the implementation of MLM activities is its purpose behavior, and the false publicity behavior is its means behavior, then the pyramid selling behavior and the false publicity behavior are essentially an illegal act , should be punished qualitatively according to illegal pyramid schemes.

Scenario 3: When false propaganda violates other laws and regulations at the same time, it constitutes a conflict of laws or an act of imaginary conflict and should be deemed an illegal act. For example, if an operator falsely advertises that its products have been patented, it also violates the Patent Law and the Anti-Unfair Competition Law. In this case, the provisions of the Patent Law on counterfeit patents should be applied first.

This is because the provisions of the Patent Law on counterfeiting patents are special laws compared to the Anti-Unfair Competition Law, and the provisions of the Patent Law on counterfeiting patents should take precedence. For another example, operators use product labels to falsely promote the ingredients, performance, functions, etc. of products. At the same time, this behavior violates the Product Quality Law, Trademark Law, Standardization Law, Certification and Accreditation Regulations, Food Safety Law, etc. When the provisions on product labels and related commodity labeling contents constitute situations of conflicting or imaginary conflicting laws, such cases should be dealt with qualitatively in accordance with the principle that special laws are superior to common laws or by selecting legal provisions with heavy penalties.