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Wuxi Municipal Administration for Industry and Commerce

Administrative review decision

(2018) Tin Industrial and Commercial Bank No. 7

Applicant: Zheng

Respondent: Jiangyin City Market Supervision Authority, residence for Jiangyin City, Cheng Jiangxi Road 139.

Legal representative: Chen Junhu, Director of the Bureau.

The applicant applied to this Council for reconsideration on May 2, 2018 because he did not accept the applicant's handling of his report on April 3, 2018 (Chengcheng Supervision Notice (2018) No. 03-13), which accepted the applicant's application for reconsideration in accordance with the law, and issued a Notice of Administrative Review to the applicant, and issued a Notice of Administrative Review Response to the respondent within the prescribed time. The case has now been closed.

Applicant request:Revoke the administrative penalty decision in the administrative processing notice of the respondent (Chengcheng Supervision Notice (2018) No. 03-13) and re-deal with it in accordance with the law.

The applicant said: it was found in The xiagang town of Jiangyin City, the supermarket, the side food shop (hereinafter referred to as the side food shop) on the saleImported black ma curry for exaggerated and misleading propaganda, suspected of violating the relevant provisions of the advertising law, and report it to the respondent. The respondent found the illegal facts after being found, but only made a decision on the administrative penalty of 12 yuan. According to Article 55 of the Advertising Law, if the advertising expenses cannot be calculated or are obviously low, a fine of between 200,000 yuan and 1 million yuan shall be imposed. Therefore, the applicant was not convinced and considered that the respondent's administrative penalty decision confused the concept and avoided weight, so he applied for reconsideration.

The respondent replied that the respondent had performed his duties in accordance with the law on the reported matters of the applicant, the procedure was lawful, the administrative penalty decision made was correct and the penalty range was appropriate.

The reason for this is that on March 26, 2018, the respondent received a report from the applicant regarding the food store, and the applicant was informed in writing on March 27, 2018, that the case had been filed through the Notice of Administrative Processing (Cheng City Supervisory Letter (2018) No. 03-012). On March 29, 2018, the respondent made the Decision on Administrative Punishment on the Spot (Cheng City Supervision Office No. 03-001) and on April 3, 2018, the Administrative Processing Notice (Cheng City Supervision Notice No. 03-13) informed the applicant in writing of the administrative penalty.

The carrier of the advertisement involved in the case is a paper billboard designed, plated and printed by the print shop. The billboard is sandwiched in the Akerica seat, the size of 10cm x 15cm, only one was made, the production cost is 3 yuan。The respondent considered that the advertising expenses involved in the case were not improperly calculated in accordance with the actual printing costs of the side food store, the advertising carrier involved in the case was small in size and was set on the shelves, the publicity range was small, the social harm was small, so the administrative penalty of RMB12 was in line with the principle of "over-penalty equivalent".

The trial found that:

On 26 March 2018, the applicant found a paper billboard printed in the shop with:“Health value: increase immunity, improve sleep quality, improve memory, improve sexual function, known as men's power factory, women's beauty salon" and so on。The applicant considered that the above-mentioned publicity was suspected of violating the relevant provisions of the Advertising Law and reported it to the respondent. Upon receiving the report, the respondent filed a case for investigation on March 27, 2018 and informed the applicant in writing of the filing on March 28, 2018 through the Notice of Administrative Processing (ChengCheng City Supervision and Administration No. 03-012). On March 29, 2018, the respondent found that the placement of a paper billboard in the sales area of Ma curry at the place of business violated Article 28(2) of the Advertising Law of the People's Republic of China by placing paper billboards claiming that Ma curry products have the aforementioned health effect. The provisions of sub-paragraph (2) constitute the act of publishing false advertisements, and in accordance with the provisions of Article 55 (1) of the Advertising Law of the People's Republic of China, the "Decision on Administrative Punishment on the Spot" (Chengcheng Municipal Supervision Office (2018) was made on the basis of the provisions of Article 55 (1) of the Advertising Law of the People's Republic of China. 03-001) and a fine of 12 yuan.

It was also found that the carrier of the advertising campaign involved was a paper billboard designed, printed and printed by the print shop. The billboard was clamped in the Akerica seat and placed in the lower left corner of the window of the Maka sales area, a total of one, the specifications of 10cm x 15cm, printing costs 3 yuan.

The above facts have the case source registration form, complaint report letter, case approval form, on-the-spot administrative punishment decision, on-site inspection transcripts and photos, investigation and inquiry transcripts, "on the approval of ma curry powder as a new resource food announcement", administrative processing notice and the corresponding delivery of evidence and other materials in the volume.

This Council is of the view that:

First, the side food shop used paper billboards to promote its sales of ma curry, claiming to have "increased immunity, improve sleep quality, improve memory, improve sexual function, known as men's power factory, women's beauty salon" and other health value. However, there is no factual basis to prove the above effect. In accordance with the provisions of Article 28 (2) (2) of the Advertising Law of the People's Republic of China, the respondent determines that the act constitutes a false or misleading advertisement about the performance, function and use of the goods, and makes a decision on administrative punishment in accordance with the provisions of Article 55, paragraph 1, of the Advertising Law of the People's Republic of China. The applicant also did not object to the application for administrative reconsideration of the application for the application for the application of the law in the case.In the view of this Council, the respondent's decision on the administrative penalty in the case was clearly found to be clear and the applicable law was correct.

Second, on the issue of advertising costs. Whether the advertising fee cannot be calculated or is obviously low shall be combined with the actual trading situation, the judgment of the local general operator, the price department of the place where the transaction was traded at the time of the transaction shall guide the price or the market transaction price, and shall be confirmed by taking into account the relevant factors. In this case, the paper-based billboards involved are self-designed typography by the side food store, and a total of 1 sheet was printed through the print shop, with a specification of 10cm x 15cm and a production cost of 3 yuan. Combined with the carrier's form, specifications, printing costs, market-like advertising costs,In the view of this Council, it is not inappropriate for the respondent to consider the advertising fee involved to be $3.

Third, the paper billboards involved in the case were sandwiched in the seat of AkericaPlaced in the lower left corner of the sales area window, only customers who shop to see, and the size of the small size, social harm is not great。 The side food shop removed the billboard immediately after it was investigated. The respondent shall, in accordance with the facts, circumstances, nature and social harm of the offence, exercise his discretion to issue a warning and a fine of 12 yuan for the administrative penalty decision. In the view of this Council, there are no obvious cases of impropriety in the above-mentioned treatment and the penalties are appropriate. In addition,The object of administrative punishment imposed by the applicant is the "deputy food shop", the corresponding penalty money is handed over to the state treasury, there is no corresponding laws and regulations to give the applicant the right to request an increase in the administrative punishment of third parties, so the applicant's request for a fine of more than 200,000 yuan and less than one million yuan is not supported by the law.

4. After receiving the report on March 26, 2018, the respondent filed a case the next day to conduct an investigation and inform the applicant in writing that a decision on administrative penalties was made on March 29, 2018, and that the results of the processing would be communicated to the applicant in writing on April 3, 2018. The above-mentioned treatment complies with the relevant procedural requirements of Article 53(1) of the Advertising Law of the People's Republic of China and the Regulations on Administrative Punishment Procedures of the Administrative Administration for Industry and Commerce. This Council considers that the respondent's handling of the matter is lawful.

To sum up, the respondent's handling of the matter reported by the applicant is clear, the evidence is conclusive, the application is correct, the procedure is legal and the content is appropriate.There is no case of confusing concepts and avoiding weight,In accordance with the provisions of Article 28 (1) (1) of the Administrative Review Law of the People's Republic of China and Article 43 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:

To uphold the administrative penalty decision in the case of the administrative processing notice made by the respondent (Chengcheng Supervision Notice (2018) No. 03-13) (Chengcheng Supervision Office No. 03-001).

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

June 28, 2018

(Source: Wuxi Municipal Administration for Industry and Commerce website)

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