I'll take it! A trade and industry bureau on the "best partner" advertising term is so identified...
Warning: This case is for academic exchange only!
Wuxi Municipal Administration for Industry and Commerce
Administrative review decision
Tin Industrial and Commercial Complex (2017) No. 6
Applicant: Liu Fei, male
Respondent: Wuxi Huishan Market Supervision Authority, residence in Wuxi City Huishan Splendid Road 1.
Legal representative: Gao Yaoxing, Director of the Bureau
The applicant did not accept the non-punishment of the reported matters made by the Huishan Market Supervision Administration of Wuxi CityOn 27 March 2017, an application for administrative reconsideration was made to this Council, which has been accepted by this Council, and a Notice of Administrative Review acceptance of cases was issued to the applicant (Xi Industrial and Commercial Review Letter (2017) No. 4), and a Notice of Administrative Review Response (Xi Industrial and Commercial Review Letter (2017) No. 4) was issued to the respondent, and the respondent submitted an Administrative Review Letter and related materials to this Council within the prescribed time. The case has now been closed.
The applicant requests that the decision of the respondent not to be punished be revoked in accordance with the law and ordered to be reprocessed.
The applicant claims that on September 15, 2016, he complained to the respondent about the use of absolute terms and misleading false propaganda to defraud consumers when selling "PVC transparent crystal plate" by Xin Lechang Trading Co., Ltd. of Wuxi City (hereinafter referred to as Xin Lechang Company). The respondent will inform the applicant of the decision not to punish on 10 February 2017. The applicant considered that the facts of the decision were unclear and the evidence insufficient, and applied for administrative reconsideration.
The respondent argued that the facts of the decision not to punish it were clear, the evidence was sufficient, the applicable law was accurate and the procedure was lawful, and the reconsideration organ was urged to reject the applicant's request for reconsideration.
The reasons for this are:
After receiving the applicant's complaint report letter on 8 November 2016, the respondent conducted an on-site inspection and opened an investigation on 11 November 2016. CheckedThe image of the applicant reporting that "soft glass is the best companion for fabric products" was uploaded by Xin Lechang in September 2016 and corrected on its own initiative the following month。 It was also found that Xin Lechang company on August 18, 2016 on the sale of soft glass table mats involved in the case, as of the date of the case sales totaled 4303.9 yuan. Respondents believe that Xin Lechang company in the sale of "kindergarten PVC transparent crystal plate soft glass student desk cloth matte table mat waterproof oil wash-free table mat" processOnce used "soft glass is the best companion of fabric products" illustration, the advertising term violates the provisions of the Advertising Act.The respondent made the decision not to punish the applicant on February 6, 2017, because Xin Lechang took the initiative to correct the illegal act the next month, the violation was short, and the personal or property rights of consumers, including the applicant, were not infringed.The applicant was noted in writing on February 10, 2017.
The trial found that:
On September 15, 2016, the applicant complained to the respondent that Xin Lechang company was selling "kindergarten PVC transparent crystal plate soft glass student desk cloth matte table mat waterproof table mat wash-free table mat" in Tmall's "Rui Yue Furniture Flagship Store",The use of "soft glass is the best partner of fabric products, the two use together, not only played a decorative effect of fabric products, but also tablecloths are not easy to dirty, more convenient to clean up" advertising termssuspected of violating relevant laws and regulations. On September 18, 2016, the respondent received a letter of complaint from the applicant, in accordance with Article 41, paragraph 1, of the Measures for the Administration of Online Transactions.On September 19, 2016, the respondent transferred the case to the Yuhang District Market Supervision Administration of Hangzhou City (hereinafter referred to as the Yuhang Bureau).
After investigation by Yuhang Bureau, the ads involved in the case were published by the merchants themselves, and the third-party trading platform did not sign an advertising agreement with them, nor did it charge advertising fees.Because the advertiser was in the respondent's jurisdiction, the case was returned to the respondent for processing.On November 8, 2016, the respondent filed a case on November 11, 2016 and conducted on-site verification of Xin Lechang Company after receiving a reply from Yuhang Bureau on the transfer letter on the case leads. On-site inspection did not find that the product involved in the promotional page has the absolute language involved in the report.After investigation, the report involved in the "soft glass is the best partner of fabric products" advertising terms by Xin Lechang company in September 2016 uploaded, and the following month actively modified to "soft glass is the royal nobles of fabric products."
The respondent considered that the advertising term "soft glass is the best companion for fabric products" violated the provisions of Article 9 (3) of the Advertising Law, but in view of Xin Lechang's timely and proactive correction, the release time was shorter, the total sales amount was small, and did not cause harmful consequences,The decision not to punish was made on 6 February 2017 and the applicant was informed in writing on 10 February 2017.
The above facts include complaint report, screenshot of Tmall shopping order, screenshot of product page promotion of Tmall store involved in the case, case transfer letter (Huishan City Supervisor's Case Transfer Word (2016) No. 0096), "Response Opinion on case lead transfer letter", on-site inspection transcript, inquiry pen The decision on non-administrative punishment (Huishan City Supervisor's Non-penalty Letter (2017) No. 0006), the Administrative Processing Notice (Huishan City Supervision Notice (2017) No. 0024) and the corresponding service vouchers are supported in the volume.
This Council is of the view that:
1. The Interim Measures for the Administration of Internet Advertising will come into effect on September 1, 2016. In accordance with the provisions of Article 18, paragraph 2, of the Measures, "The administrative department for industry and commerce where the advertiser is located or the place where the advertising operator is located may also exercise jurisdiction if it first discovers the illegal clues or receives a complaint or report", the respondent shall have jurisdiction over the case upon receiving the applicant's complaint report on September 18, 2016. Although Article 41 of the Measures for the Administration of Internet Transactions stipulates that "the illegal acts of online commodity transactions and related services shall be under the jurisdiction of the administrative department for industry and commerce at or above the county level where the operator's domicile where the illegal acts have occurred." For the operators in which they carry out business activities through a third-party trading platform, the illegal acts shall be under the jurisdiction of the administrative department for industry and commerce at or above the county level where the third-party trading platform operator is located",However, the matters reported in this case are Internet advertising, and the Interim Measures for the Administration of Internet Advertising shall be applied as a matter of priority. As a result, it was illegal for the respondent to transfer the case to the Yuhang Bureau on September 19, 2017 after receiving a complaint.
2. With regard to the provisions of the Advertising Law on the prohibition of absolute language,Can not be mechanically understood literally, but should be combined with advertising content, specific context of comprehensive judgment is an absolute term.In this case, Xin Lechang company in the sale of "kindergarten PVC transparent crystal board soft glass student desk cloth matte table mat waterproof table mat wash-free table mat", the use of "soft glass is the best partner of fabric products" advertising terms.First of all, the word "soft glass" is a noun, and does not directly point to the products sold by Xin Lechang, and its products are not related. Secondly, "soft glass is the best companion of fabric products" expression, not the product quality or use of the effect of the specific description, combined with its following "the use of the two, not only played a decorative effect of fabric products, but also tablecloth is not easy to dirty, more convenient to clean up" the expression, should be identified as an objective description of household goods matching. Therefore, "soft glass is the best companion of fabric products" advertising terms do not constitute absolute terms.
In summary, the respondent will report the transfer to the Yuhang Bureau for processing of illegal conduct procedures, it found that "soft glass is the best partner of fabric products" advertising terms in violation of article 9 (3) of the Advertising Law, and based on the decision not to administrative punishment is not clear In accordance with the provisions of Article 28 (1) (3) of the Administrative Review Law of the People's Republic of China, Items 1, 3 and Article 45 of the Regulations on the Implementation of the Administrative Review Law of the People's Republic of China, the decision on reconsideration is as follows:
1, confirm that the respondent Wuxi Huishan Market Supervision Authority made the case transfer procedure is illegal;
2. Revoke its decision not to administrative punishment (Huishan City Supervision No. 2017 No. 0006).
If the applicant does not accept this reconsideration decision, he may, within 15 days from the date of receipt of this reconsideration decision, bring an administrative action with the Binhu District People's Court of Wuxi City.
Wuxi Municipal Administration for Industry and Commerce
May 12, 2017
(Source: Wuxi Municipal Administration for Industry and Commerce website)
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