Advertising Law Series (V)//If the star’s illegal endorsement constitutes commercial fraud, consumers have the right to claim compensation of three times the price

Release Time:2022.11.14 Author: WIN ZONE Lawyer


Star Jingtian was punished by Guangzhou Tianhe District Market Supervision Bureau with confiscation of illegal income and a fine, totaling 7.2212 million yuan, for violating the relevant provisions of the Advertising Law for his “fruits and vegetables” ordinary food. It is not uncommon for celebrity endorsers to overturn their cars, but it is rare for Jing Tian to be punished for violating the Advertising Law. From the People’s Daily and the State Market Regulatory Bureau, it is clear that celebrity endorsers who violate the rules are no longer just a farce, but should attract the attention of stars and relevant people.

In addition to being investigated for administrative responsibility by the market supervision department, can consumers who buy goods or services under the influence of celebrity endorsement be investigated for civil responsibility</ strong>

The answer is yes</ strong>

Part. 1 Joint and several liability

China’s Advertising Law stipulates that consumers are deceived or misled by false or misleading content, which constitutes false advertising. In general, the advertiser shall bear civil liability according to law if he publishes false advertisements, deceives or misleads consumers, thereby harming the legitimate rights and interests of consumers who buy goods or receive services. However, if false advertisements of goods or services that affect the life and health of consumers cause damage to consumers, their advertising agents, advertising publishers and advertising spokespersons shall bear joint and several liabilities with the advertisers; Advertising agents, advertisement publishers and advertising spokesmen shall also bear joint and several liabilities with advertisers if they know or should know that the advertisements of other goods or services they represent are false and still design, produce, act as agents, publish, recommend or certify.

That is to say, if a star endorses a false advertisement for a commodity or service that is related to the life and health of consumers or knows that the advertisement for other commodities he endorses is false, he or she still endorses it in his or her own image, name and influence in the public, causing losses to consumers, he or she shall bear joint and several liability for compensation with the advertiser for the damaged consumers according to law.

Part. 2 Return price

If a merchant intentionally informs consumers of false information or intentionally conceals facts when doing commodity publicity, thereby inducing consumers to make wrong judgments, it may constitute commercial fraud that misleads consumers.

Commercial fraud is a revocable civil act in the Civil Code. Therefore, consumers who have been defrauded can request to cancel the business or service relationship and have the right to demand the return of the price.

Part. 3. Punitive compensation for “three compensation for one fake”

According to Article 45 of the Consumer Protection Law of China, “Where the legitimate rights and interests of a consumer are damaged due to the use of false advertising or other false publicity by a business operator to provide goods or services, the consumer may demand compensation from the business operator.” Article 55 stipulates: “If a business operator commits fraud in providing goods or services, it shall, at the request of a consumer, increase its compensation for the losses it has suffered, and the amount of the increased compensation shall be three times the price of the consumer’s goods or the cost of receiving services; if the amount of the increased compensation is less than 500 yuan, it shall be 500 yuan. If the law provides otherwise, it shall prevail.” This is what we call “three for one fake”.

In the case of Jingtian’s illegal endorsement, first of all, China’s laws clearly stipulate that ordinary food is not allowed to carry out efficacy publicity such as treatment and health care according to law. In this regard, Jingtian should know what kind of food the “fruits and vegetables” food it represents belongs to and the corresponding legal provisions, which is the minimum prudential obligation of its spokesperson; Secondly, it should be verified whether the “fruits and vegetables” food it represents has the effect of “preventing the absorption of fat and sugar”, which is the true and legal meaning of advertising and the basic requirement of being responsible for yourself. However, Jingtian, as a public figure, still claimed in the advertisement that the endorsement product had the effect of “preventing the absorption of fat and sugar” in its own name and image without verifying the relevant efficacy of the food through effective ways, misleading consumers, which is a false advertisement and false publicity, and also a dishonest act as a star public figure. Therefore, consumers who buy this “fruit and vegetable” food under the influence of Jingtian’s false endorsement can not only require Jingtian to jointly bear the responsibility of returning the purchase price, but also have the right to claim three times of the price of the purchased goods as punitive compensation.

To sum up, celebrity endorsement is not only regulated by the Advertising Law, but also by the Food Safety Law, the Consumer Protection Law and other laws and regulations; It will not only be subject to administrative punishment by relevant departments, but also be subject to civil liability investigation by consumers. The mistakes made by Jing Tian in this issue’s illegal endorsement are the basic duty of care that stars should pay in their endorsement, and they are not profound. Therefore, knowing the law and abiding by the law, and exempting the IQ tax are really problems that stars and their teams should solve quickly.

Lawyer Wang Fen

Graduated from the Northwest Institute of Political Science and Law, Economic Law Department, with nearly 10 years of legal service experience, and high customer satisfaction;

Advocate that the law should serve the business, be able to go deep into the frontline of the consulting unit, and provide the consulting unit with operable and valuable services that can pre control risks;

It can independently research and develop topics and provide daily legal training for enterprises, including labor law, contract law, shareholder disputes, intellectual property rights and competition law.

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