Today we will talk about the "health care products" around us.
Case study:
Mr. Wang in the company purchased "pilose antler blood (select)" four box of a total of 5032.1 yuan, after Mr Wang don't think the antler involved with usage and dosage and the matters needing attention, belong to product of 3 without complain to eat food, eat food and drug administration report issued by the registration form back, set forth the antler listed in the "Chinese pharmacopoeia" 2015 version of the directory, and does not belong to a drug homologous items, The reported velvet pieces did not violate the provisions of the Food Safety Law of the People's Republic of China, and the report responded to the request for refund and compensation, reward and other contents. Mr. Wang was not satisfied with the F.D.A. 's response and insisted that velvet was a food.
Therefore, the court required a company to compensate Mr. Wang 10 times the price of goods and bear the litigation costs in accordance with the Food Safety Law.
In the above cases, the court held that the nature of deer antler was non-edible Chinese herbal medicine, and it was sold separately. The product in question was a medicine, not a food, and was not suitable for the Food Safety Law of the People's Republic of China. Therefore, the court ruled to reject Mr. Wang's claim.
How to distinguish food, medicine and health care products?
Seeing this, many consumers may be confused, the above case of deer antler has a tonic effect, should not belong to health care products? Now we have a look at relevant laws and regulations and national standards to food, medicine, health care to taste how to set?
01 What is food?
"Food Safety Law of the People's Republic of China" Article 150: Food refers to all kinds of finished products and raw materials for people to eat or drink, as well as articles that are traditionally both food and traditional Chinese medicine, but does not include articles for the purpose of treatment.
02 What is medicine?
Paragraph 1 of Article 100 of the Drug Administration Law of the People's Republic of China: Drugs, it is to point to to prevention, treatment and diagnosis of diseases, purposefully regulate physiological function and regulation have indications or functions of indications, usage and dosage of the material, including traditional Chinese medicine, Chinese medicine yinpian, proprietary Chinese medicines, chemical drug substances and their preparations, antibiotics, biochemical drugs, radioactive pharmaceuticals, serum, vaccines, blood products, diagnostic drugs and so on.
For drugs, we should pay attention to Chinese medicinal materials. Chinese medicinal materials are divided into edible and drug homologous Chinese medicinal materials and non-edible and drug homologous Chinese medicinal materials. What is edible and drug homologous Chinese medicinal materials?
The Chinese medicinal materials which have the function of curing diseases and can also be used for diet are Chinese medicinal materials with the same origin as food and medicine. The specific provisions shall be subject to the Pharmacopoeia of the People's Republic of China and the provisions formulated and promulgated by the administrative department of health under the State Council jointly with the food safety supervision and administration department under the State Council.
In accordance with the provisions of the relevant antler belong to not eat medicine homologous Chinese medicinal materials, aiming at this kind of traditional Chinese medicine, if merchants sell alone, and not as ingredients in food, consumer is when the problem should be in accordance with the pharmaceutical administration law of the People's Republic of China to the relevant provisions of the rights, if as ingredients in the food, In accordance with the relevant provisions of the Food Safety Law of the People's Republic of China.
What are health products?
According to GB16740 -- 2014 "Food Safety National Standard Health Food" : Health food refers to the food claimed to have specific health function or for the purpose of supplemental vitamins and minerals, that is, the food suitable for the specific population to eat, has the function of regulating the body, is not for the purpose of treating diseases, and does not produce any acute, subacute or chronic harm to the human body.
From the standard of health care products, we can see that although many consumers regard health care products as medicines, health care products are essentially food.
In the case above, the antler sold separately by the merchant has the effect of nourishment, but it is essentially a medicine, not a food, nor a health product.
The franco-prussian
01 What should I do if I find that medical ingredients have been added to health care products?
Caution: Do not add medicine to food.
According to Article 38 of the Food Safety Law of the People's Republic of China, no drugs shall be added to the food produced or marketed, but substances that are traditionally both food and traditional Chinese medicine may be added. The list of substances that are traditionally both food and traditional Chinese medicinal materials shall be formulated and promulgated by the administrative department of health under the State Council in conjunction with the food safety supervision and administration department under the State Council.
How to Use Punitive Compensation to Protect Rights?
about punitive compensation, "food safety law of the People's Republic of China" article 148: consumers because of food safety standards do not meet the damage, can ask for compensation to the operator loss, can also ask for compensation to the producer loss.
Producers and business operators receiving consumer compensation claims shall practice the first responsibility system and pay compensation in advance without passing on the responsibility. Where the producer is responsible, the business operator shall have the right to claim compensation from the producer after making the compensation. Where the liability lies with the operator, the producer shall have the right to claim compensation from the operator after making the compensation.
Where a consumer produces food that does not meet the food safety standards or knowingly trades in food that does not meet the food safety standards, he may, in addition to demanding compensation for the loss, demand compensation of 10 times the price or three times the loss from the producer or trader; If the amount of compensation increased is less than RMB 1,000 yuan, the amount shall be RMB 1,000 yuan.
However, the food labels and instructions contain defects that do not affect food safety and will not mislead consumers.
Does the application of punitive damages need to be based on the premise of causing actual harm to consumers?
No, as long as consumers bought unsafe food, they can claim punitive damages without having to prove personal injury.
Under what circumstances can consumers claim punitive damages?
Punitive compensation can be claimed if the food safety is seriously affected by the addition of poisonous, harmful or prohibited ingredients in health care products or the obvious contents of labels and instructions are missing.
If the error in the food label instruction is a clerical error, or other defects that do not affect the food safety and will not mislead consumers, consumers can only ask for the termination of the contract, refund of the returned goods, and can not ask for punitive damages.
Health care products in the existence of false publicity, false publicity is business qualifications, the main function of the commodity or service, the main standard of the main contract content, directly mislead consumers to buy the product, consumers can ask for punitive compensation. Not enough to mislead consumers can not ask for punitive damages.
prompt
When choosing health food, pay attention to whether the outer packaging is complete and whether the following contents are printed: 1. Health function and suitable population; 2. Edible method and dosage; 3. Storage method; 4, the name and content of the effective ingredients; 5. Approval document number of health food; 6, health food label.
In the purchase of imported health food, consumers should not only choose the health care products imported from the formal way, but also pay attention to the packaging of imported health care products must have the Chinese label, and the added ingredients should comply with the provisions of food safety in China, do not contain the ingredients prohibited to be added in China.
Consumers with problems should promptly and rationally protect their rights, and should not excessively protect their rights. Meanwhile, consumers should establish rational consumption concepts and awareness of evidence protection, pay attention to the preservation of evidence in the process of consumption, and properly choose the way of dispute settlement.
When consumers buy health care products, they should keep the invoices of the products they buy. In the process of online shopping, they should keep the communication records with the sellers. Reasonable use of the appropriate means to record the rights and interests of the infringement, fraud of the process.
Fully understand product information and related terms and conditions. Before buying health care to taste, seek advice to operator about the information of the respect such as commodity performance, effect, do not want credulity to the excessive commitment of the businessman, before consumption, see the format clause of the businessman clearly in detail, do not covet its to give advantage temporarily, fall into consumption trap.