Zhongxiaoxie Legal Advisor: Good eyesight non-drug propaganda effect system violation

Every reporter Kim Wippen from Beijing yesterday (May 6), "Daily economic news" about good eyesight of suspected consumption fraud reports aroused widespread concern in the community. According to the public information, the "good eyesight eye" positioning is not a drug, but a health care supplement. China Consumer Association (hereinafter referred to as Zhongxiaoxie) legal advisor, Chu Baochang, executive director of the Beijing Institute of Consumer Protection Law, said in an interview with the Daily economic news reporter, if it is not a drug, good eyesight can not promote the efficacy and function, "the drug management law is very clear, health products may not publicize the efficacy, It cannot be advertised even if it aids the human body. "Zhongxiaoxie original Complaints department director Wang Maihu in the daily economic news, said in an interview to determine whether a product fraud has three elements: subjective intent, process implementation, have adverse consequences." He believes that if the act of disclosure of the media exists, good eyesight and so on out of thin, fabricated, expand the scope of application, but also subjective intent, is fraud; at the same time, the sale of products is tantamount to the implementation of the process in action, these consumers in the process of using the product has been deceived, the interests That is, "the three elements of fraud are already in place". Expert refers to good eyesight there are many kinds of fraud suspicion/in yesterday's report, good eyesight self-proclaimed "China well-known trademarks" and "Chinese Medicine science and Medicine Health Products Development Center science and technology industry base" is the key to the question. Wang Maihu says good eyesight is fraudulent if it does not have the relevant cognizance. Good eyesight in the introduction of its eye, also mentioned the origin of medicinal materials from Shennongjia. Wang Maihu pointed out that if the actual medicinal herbs are not produced from Shennongjia, this can also explain its false propaganda. Earlier, the good eyesight claimed that "the effect of cataract" by eye experts retort: "Cataract, eye disease and other ocular diseases due to the complexity of its causes, involving many factors such as nutrition, through the eye paste to make cloudy crystal protein clear, so far the possibility is not small." In accordance with the provisions of section 61st of the Drug Administration Act, non-pharmaceuticals may not have drug-related publicity; 43rd of the regulations on the Enforcement of Drug Administration Law stipulates that non-pharmaceuticals shall not carry out publicity on the contents of prevention, treatment and diagnosis of human diseases in their packaging, labelling, manuals and related promotional materials. As for good eyesight eye paste on myopia, cataract and so on whether really have curative effect, Wang Maihu said, the health department will generally have accurate statement, a medicine has what curative effect needs to pass the approval of the drug regulatory Department, the use of instructions must have approval, if not approved, exaggerated or unfounded, it constitutes fraud. Chu Baochang said that cataract is a disease, good eyesight is said to have an effect on cataracts, this is actually a violation of the drug does not promote the efficacy and function of the provisions. Wang Maihu stressed that of course, the premise is that these must have conclusive evidence, such as testing reports can be used as evidence, the composition of the drug detection can be used as evidence, "as to the adverse consequences is light or heavy, there is no delay in the deterioration of the user's condition, such as the loss of eyesight or caused some inflammation,See。 But one thing is for sure, consumers buy must have spent the wrong money, causing losses to the consumer economy. "Daily economic news" reporter interviewed a number of good eyesight eye stickers used by consumers, they buy products for different purposes, some to alleviate eye fatigue, some to treat cataract, but the effect is not good. Yesterday, a number of netizens said that the use of this product effect is not big. Wang Maihu says fraud violates consumer interests, but it is even worse if the elderly and children are being cheated. Lawyers said the business sector should be responsible for false propaganda/in the State administration of industry and Commerce, the trademark Office only online inquiry trademark registration information on the website "China Trademark Network", many times the reporter uses the good eyesight eye spot the manufacturer-Zhengzhou New Vision Company as the name carries on the search, discovered has up to 286 records, including "Good eyesight", "New Xsm", "Haoshili", "See Treasure", "eye shape graphics" and many other trademarks, but the reporter can not find these trademarks are "well-known trademarks" basis. At the same time, these trademark application time is mostly after 2007, according to good eyesight Company's propaganda, in January 2007, good eyesight eye paste obtained "China well-known trademark" title. A lawyer who did not want to be named told the Daily Economic news reporter, the good eyesight of this behavior, essentially false propaganda, in China, the punishment of false propaganda there are mainly two laws: "Anti-unfair competition law" and "advertising law." The lawyer said that there are mainly two kinds of false propaganda, one is that the enterprise uses its own common trademarks, as well-known trademarks to promote, the other is even their own registered trademarks are not, the direct promotion of well-known trademarks in China. The latter, he argues, is not just a matter of exaggerating publicity, but may also involve criminal responsibility. According to the anti-unfair competition law, the main consideration is to hold the party responsible for the loss of the competitor, and the advertising law is the punishment from the consumer's angle. According to the lawyer's statement, good eyesight eye stickers of such false propaganda, belong to their own trademarks to impersonate a well-known trademark publicity, the responsible department is the administrative department of Industry and Commerce. However, another lawyer who engages in intellectual property rights said that China's well-known trademarks are not only the industry and commerce administrative departments, in individual court cases will also appear in such cases, the emergence of China's well-known trademarks will not be recorded by the administrative department of Industry and Commerce. False advertising publishers or also have the responsibility/in fact, good eyesight eye stickers suspected of false publicity, has become a regulatory bulletin on illegal, illegal regulars, successively in Zhejiang, Chongqing, Yunnan, Fujian, Hainan and other place were banned. Last August, good eyesight in the name of "China National shooting Team Special eye care products", claim to be able to prevent myopia, treatment of cataract, eye health, and thus boarded the State administration of food and drug supervision of the "black List", the list of reasons for, advertising contains the use of patient image and name for proof, unscientific expression of the efficacy of assertions and guarantees, Seriously deceive and mislead consumers. Chu Baochang said that since the national Food and Drug supervisionThe general administration determines that it is seriously deceptive and misleading consumers, it should be investigated, but the reality of good eyesight in the law enforcement problems, "if it is a drug problem, the identification and enforcement by the same department, but if not drugs but health products, it is the business sector problem." "At present, good eyesight is still in television stations, radio advertising, and have a star endorsement, there are consumers questioned," are these distribution channels, stars are not responsible? "Responsibility for distribution channels, the 38th article of the Advertising Law stipulates that the advertisement owner shall bear civil liability for the infringement of the legal rights and interests of the consumers who purchase the goods or receive the services, and the advertising operators and the advertisement publishers knowingly or should know that the advertisement is false still design, make, Issued, shall bear joint and several liability. Due to the variety of good eyesight products using Health products batch number, it is also applicable to the "Food Safety Law", the law 55th stipulates that social groups or other organizations, individuals in the false ads to consumers to recommend food, so that the legitimate rights and interests of consumers are damaged, and food production operators jointly and severally liable. Chu Baochang said that regardless of the level of products in the media advertising, as the advertising publisher, the media have the responsibility to review, if there is false publicity, and the media did not review the release, there are joint and several liability. Star endorsement of good eyesight depending on the specific circumstances of the responsibility/in advertising, good eyesight eye stickers since 2003 has been the title of "China's national shooting team eye care products," increased the trust of consumers. Good eyesight announced that the March 2007 national shooting team and the national flying saucer shooting team coaches, athletes for its brand image endorsement, its products and "national sports enterprise" closely linked. Large-scale publicity has brought huge economic benefits, good eyesight to pay for how much endorsement costs? Yesterday, the daily economic news reporter called the Center office, was informed that the shooting team endorsement fees and the use of "not within the scope of administrative disclosure." The person said that the national shooting team and good eyesight since the beginning of 2003 cooperation, indeed has a long time, but "is not a spokesperson, is the designation Eye care products", the content of cooperation is generally, "in cooperation during the push he (refers to good eyesight) of some activities." However, on the official website of good eyesight, it impressively reads: In March 2007, the Chinese national shooting team and the national flying saucer shooting team coaches and athletes become "good eyesight eye stickers" brand image spokesperson. According to China's "advertising law" provisions, these false advertising advertisers, advertising operators, advertising publishers to bear the corresponding responsibility. "But whether the publishers include spokesmen is controversial in academia." "Jovins, director of China Business Law Research Association, said Zhongnan. Joe thinks, some allegedly false propaganda advertisement has the huge negative influence, has the direct relation with the star endorsement, but the star endorsement is so frequent, also with our country "the advertisement law" the Tort Liability law does not investigate the spokesperson responsibility to have certain relations. Recently, the Supreme People's Court, the Supreme People's Procuratorate (hereinafter referred to as "two high") in the issue of the handling of dangerous food safetyThe interpretation of a number of issues in the application of the law to the whole criminal case says, "the criminal subject of judicial interpretation is the advertiser, the advertising operator, The Advertiser, and from the general understanding, does not include the star of advertising endorsement." This statement was then interpreted as "celebrity endorsement problem food is not responsible." Later, the "two high" responsible also said that the star endorsement problem food is responsible for the specific circumstances of the case, the judicial organs in strict accordance with the relevant laws and regulations, the star should bear the corresponding responsibility to the law. Good Eyesight official website Readme: 2003 years ~2011 good eyesight eye paste is identified as China's national shooting Team Eye care products January 2007 Good Eyesight Eye sticker trademark was identified as China's well-known trademarks March 2007 Chinese national shooting team and national flying saucer shooting team coaches and athletes to become good eyesight eye Paste Brand image spokesperson April 2009 good eyesight Eye stickers become the Beijing International shooting World Cup eye protection products April 2011 Good Eyesight Eye Sticker 2011 Good Vision Cup UFO World Cup May 2011 Good vision eye Paste successful renewal of the Chinese national Shooting team; sponsored 2011 National Diving Championship related report: Henan revoked good eyesight medical device approval font Mark Office does not accept well-known trademark inquiries