is it "protecting its own child"? four unanswered questions about meicheng mooncakes
2024-09-19
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the "hong kong meicheng mooncakes" promoted by "crazy little brother yang" (zhang qingyang) and the anchors under "three sheep" set off a wave of public opinion during the mid-autumn festival.
on september 17, the hefei hi-tech zone market supervision bureau, where the "three sheep" is located, announced that it had filed a case against three sheep network technology co., ltd. for suspected "misleading consumers" and other behaviors. on the 18th, the local market supervision bureau of the mooncake manufacturer in question announced that the "hong kong meicheng mooncake" trademark was indeed registered in hong kong, but was actually processed and produced by a mainland company.
the two announcements did not eliminate the doubts on the internet. is the announcement by the hefei high-tech zone market supervision bureau only aimed at the meicheng mooncake incident? is it "protecting its own"? is meicheng mooncake a hong kong brand? what does it mean that the "three sheep" misled consumers...
after the official announcement, questions still need to be further clarified.
question 1 to be answered: is the notice issued by the hefei high-tech zone market supervision bureau only aimed at the meicheng mooncake incident?
on september 17, the market supervision bureau of hefei high-tech zone announced that it had filed a case against three sheep network technology co., ltd. for suspected "misleading consumers" and other practices.
the notice immediately attracted great attention online. some netizens noticed that the "caotou meat incident" of preserved vegetable and pork with pork belly and fake beef rolls exposed by "crazy little yang" and "three sheep" did not appear in the notice released by the regulatory authorities.
previously, on september 4, lu wenqing, co-founder of "three sheep", posted a short video on his douyin account saying that "three sheep" had not been punished by any relevant department regarding the "caotou meat incident" of preserved vegetable and pork belly that was exposed at this year's cctv 3.15 gala.
on the 5th, a staff member of the hefei high-tech zone market supervision bureau responded to the media that "three sheep" has not been punished so far. the main reason is that consumers bought preserved vegetables and pork in the "three sheep" live broadcast room, and the recipient was hubei xiaocheng youxuan technology development co., ltd., so hubei xiaocheng youxuan was the seller; the manufacturer anhui donghui food technology co., ltd. exposed by cctv's 3.15 gala was the producer; "three sheep" was just an advertiser. there is no evidence that funds flowed to "three sheep".
as for the fake beef roll incident, the paper previously reported that "crazy little yang" had promoted "xian duo yu australian grain-fed beef roll 4 jin". afterwards, "xian duo yu" was fined 500,000 yuan for falsely advertising synthetic beef and mutton rolls as "original cuts".
on september 11, the qingshan district municipal supervision bureau of wuhan responded to the paper that the punishment had indeed taken place. the hefei municipal supervision bureau said it had taken note of the situation. however, there was still no administrative punishment information for the “three sheep” in the national corporate credit system.
in addition, "crazy little brother yang" and "three sheep" were also involved in disputes over moutai liquor, hair dryers, etc.
is the investigation by the hefei hi-tech zone market supervision bureau only targeting meicheng mooncakes, or does it also include the other matters mentioned above? on september 18, the paper called the hefei hi-tech zone market supervision bureau several times, but no one answered.
question 2 to be answered: what does “misleading consumers” mean?
in this incident, what is the definition of suspected "misleading consumers" as stated in the report of hefei high-tech zone market supervision bureau? does the live streaming room involve false advertising?
xing xin, senior partner and lawyer at hunan jinzhou law firm, told the paper that my country's laws and regulations do not define "misleading consumers", but it appears many times in legal provisions. for example, article 9 of the "regulations for the implementation of the consumer protection law" stipulates that operators should provide consumers with truthful and comprehensive information about goods or services in an easy-to-understand manner. operators shall not engage in false or misleading propaganda, deceive or mislead consumers by fabricating the operator's qualifications, qualifications or honors, fabricating product or service transaction information, business data, tampering with, fabricating, or concealing user reviews, etc.
xing xin pointed out that the so-called "misleading consumers" means, in short, that in the identification of false propaganda and other behaviors, the behaviors of producers, sellers and other entities will mislead consumers into a wrong understanding, and make wrong purchasing decisions based on this wrong understanding. it generally has the following characteristics: falsehood. the information provided does not match the actual situation, or is partially true but deceptive as a whole; misleading. the way the information is expressed or presented is enough to mislead consumers; intentionality. the operator knows that the information is untrue or may mislead consumers, but still promotes it; causal relationship. there is a direct causal relationship between misleading behavior and consumers' purchasing decisions.
xing xin believes that in this incident, the merchants and the anchors who sell goods may have engaged in false advertising and unfair competition, infringed on the legitimate rights and interests of consumers, and are suspected of violating the consumer protection law, the anti-unfair competition law, the advertising law, etc.
specifically, given that meicheng mooncakes are not actually produced and sold in hong kong, if the anchor uses explicit or implicit promotional language such as "meicheng mooncakes are produced in hong kong and have high sales in hong kong" during the live broadcast, which misleads consumers and affects their purchasing decisions, it constitutes false propaganda. if the circumstances are serious, it is suspected of constituting the crime of false advertising.
if merchants or anchors mislead consumers through false advertising and other means, thereby gaining unfair market advantages, it may constitute unfair competition.
question 3 to be answered: if the trademark is only registered in hong kong, can it be called a hong kong brand?
the live broadcast replay video shows that the anchors under "crazy little yang ge" and "three sheep" emphasized in the live broadcast room that meicheng mooncakes are a "high-end brand in hong kong" and a "big brand in hong kong", and that the mooncakes contain black truffles, which are prepared by michelin chefs.
the guangzhou huadu district market supervision bureau mentioned in a notice released on september 18 that the hong kong meicheng food group has registered trademarks such as "meicheng", "hong kong meicheng mooncakes" and "meisun" in hong kong, which are approved for use on mooncake products. it has authorized the trademarks to guangzhou meicheng food company for use, and guangzhou meicheng food company has commissioned guangzhou meicheng technology company to process "hong kong meicheng mooncakes" products.
"there are no prohibitive or mandatory regulations for such situations in the laws of mainland my country and hong kong. from a legal perspective, it is a company's freedom to decide whether to promote itself as a 'hong kong brand'. however, if false content such as fabricating facts and concealing the truth occurs during the promotion process, it is suspected of violating relevant laws and regulations." xing xin told the paper that from a legal principle perspective, "what is not authorized by law cannot be done, and what is not prohibited by law is freedom." the former is a constraint on law enforcement entities, and the latter means that as long as citizens do not violate prohibitive regulations in the public law field and mandatory regulations in the private law field, they enjoy broad freedom.
chen yinjiang, deputy secretary-general of the consumer protection law research institute of the chinese law society, also pointed out that according to the latest notice, the behavior of the mooncake manufacturer involved did not violate existing laws and regulations. "the core issue is whether this sales behavior has caused certain misleading to consumers."
"for example, a product claims to be a high-end brand or a big brand in hong kong in its publicity, but in fact it is only registered in hong kong and is not produced and sold in hong kong, nor is it recognized by consumers. this is inconsistent with consumers' understanding of 'hong kong high-end brands' and 'hong kong big brands'." chen yinjiang said that operators repeatedly emphasize "hong kong brands" and "hong kong mooncakes" during live broadcasts or sales without fully and truthfully disclosing the production and brand information of mooncakes, which will cause consumers to mistakenly believe that the product is a mature mooncake brand in hong kong, or a well-known brand recognized by the market in hong kong, and thus make purchasing behaviors that are not true expressions of intention. therefore, such behavior is suspected of misleading consumers and infringing on consumers' right to know and right to choose.
regarding the brand or producer of meicheng mooncakes, chen yinjiang also believes that if the labeling information on the product packaging deliberately highlights the "hong kong brand" without truly and comprehensively disclosing product information, it is also suspected of misleading consumers and infringing on consumers' right to know and right to choose.
question 4 to be answered: how should consumers protect their rights?
after the "meicheng mooncake incident" attracted attention, luo yonghao said in the live broadcast room that (under its) small vertical live broadcast rooms had also sold the products involved. if consumers have bought meicheng mooncakes in a live broadcast room of "make friends", they can get a refund of one and get three times the compensation.
according to media reports, some consumers said they bought meicheng mooncakes in the live broadcast room of "three sheep". they contacted the online store customer service but failed to return the goods. they also contacted the official merchant and they clearly stated that they would not return the goods. "they replied that mooncakes are special seasonal products and do not meet the 7-day no-reason return requirement."
how can consumers protect their rights? is refunding one and paying three times as much reasonable?
chen yinjiang believes that if consumers’ rights and interests are infringed in live broadcast rooms, if the live broadcast room clearly indicates the real sales merchant’s name and other information, consumers can seek rights protection from the seller. if the live broadcast room does not clearly indicate the real sales merchant’s information, consumers can seek rights protection from the live broadcast room operator. the platform and the live broadcast room have an obligation to assist consumers in protecting their rights. if the platform knows or should know that the merchants on the platform have violated laws and regulations or infringed on the legitimate rights and interests of consumers and does not take timely measures, it shall bear joint and several liability.
xing xin believes that according to the relevant provisions of the consumer protection law, if the business operator provides goods or services with fraudulent behavior, consumers can request additional compensation, and the amount of additional 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. the "fraudulent behavior" here is different from the false propaganda mentioned above, and false propaganda does not necessarily constitute fraudulent behavior. the determination of fraudulent behavior is based on whether the business operator deliberately informs false information or deliberately conceals the truth to induce consumers to make wrong purchasing decisions. in practice, it is necessary to analyze the specific situation in combination with the situation. in the meicheng mooncake incident, the promotion of the anchor with goods was suspected of false propaganda and may even constitute fraud.
what kind of punishment might the companies involved face? xing xin said that according to the relevant provisions of the anti-unfair competition law and the advertising law, the punishments may include ordering the companies involved to stop illegal activities, confiscating illegal goods, imposing fines, revoking business licenses, etc. the companies may also be subject to civil compensation and need to compensate consumers for their losses, including returns and refunds and possible triple compensation.
in addition, according to article 26 of the anti-unfair competition law, if an operator violates the regulations and engages in unfair competition and is subject to administrative penalties, the supervisory and inspection department shall record it in the credit record and make it public in accordance with the relevant laws and administrative regulations.
(source: the paper)
