Where does the line between regualted claims and non-regulated claims stand exactly? not easy to say, most of all when we consider claims that imply some benefit on consumer’s health.
While it is rather clear that claims such as “can lower blood lipids” and other similar ones belong to the highly regulated are of “health-food claims” (those requiring long and painstaking CFDA registration), and while it is equally clear that claims involving nutrients belong to the regulated area of nutritional claims, what is the situation for other more generic claims?
Take for instance one of the most commonly used – “product beneficial for health” (“有益健康”). A very common claim on Chinese market.
We found an interesting decision dating 2015 by the Baijing Intermediate Court. A consumer had purcahsed several bottles of acacia honey (for an amount of around 17,000 RMB…. all for personal consumption, right?) whose label merrily stated that “frequently consuming this product is beneficial for health“.
We can picture the scene: once the huge box of 900 bottles of acacia honey has been delivered to the consumer, he suddenly feels deceived by this claim…. and files a litigation against the retailer.
The product claims is – according to the consumer – first of all false, because honey is all but beneficial in case of diabetes, cirrhosis, as well as for infants. Secondly, and more importantly, the claim is in breach of article 3.6 of GB 7718, whereby “Contents indicating the function of preventing and curing diseases shall not be declared or suggested; food other than health foods shall not be declare or imply function to protect health”.
The defendant objected that a sentence such as “frequently consuming this product is beneficial for health” does not constitute claim of prevention or treatment, and that nothing in the packaging (logos, pictures or other graphic elements) could have created a misleading message for the consumer. The defendant also filed some evidence that honey is commonly considered as a healthy food (quotes from wikipedia and from baike) , as well as more scientific and official documents (a list issued by the Ministry of Health which declares honey to be considered both a food and a drug ingredient).
All of this was in vain…. the Court – in both instances – considered that the claim “frequently consuming this product is beneficial for health” infringes the rule – contained in article 3.6 of GB 7718 – forbidding to ordinary food other to declare or imply function to protect health. So basically this claim was considered a statement – or an implication – of health protection. The Chinese words used by article 3.6 to express the forbidden claim of “protect health” are 保健, which are also the same words used to appellate health-food (保健食品), i.e. the category of nutraceutic foods that can use health-function claim (currently 28). Basically the Court considered the statement “frequently consuming this product is beneficial for health” belongs to the same category of claims such as “helps against fatigue”, “improves bowels movements” etc..
The court also confirmed that this resulted also in a breach of article 48 of the Food Safety Law (“food labels shall not display misleading or exaggerated contents“), which in its turn belongs to the forbidden conduct of “selling products not compliant with food safety standards“.
We have to say that this decision does not represent a stable orientation by Courts – as we will see in future posts, this kind of claims is seen by different Courts in different ways. Some specific background of this case may also have contributed to such a restrictive interpretation from the court: for example, it appears from the decision that the involved brand had previously been punished by CFDA for exaggerating the health benefits of ths product; and that the involved acacia honey products presented some impurities which ultimately made it non-compliant with the sensorial requirements set by GB 14693 (Standard for Honey).
We can also say that in this case the claim appeared to associate the healtcare effect with some recommended posology (常饮, frequent – or daily – consumption), and this may have stressed the impression that the product was suggesting some kind of “dietery” regime to achieve some heal-function benefit.
In any case, the lucky consumer was awarded 10-times the price he spent, we talk about something like 170,000 RMB, more than 20,000 Euros, or 25,000 USD.
Acacia Honey for him was – indeed – beneficial…