It can be said that the "Sanlu tainted milk powder incident" prompted the promulgation of the Food Safety Law, and the question of whether celebrity endorsements, which had been in the discussion stage before, should bear joint and several liability was established in the form of legislation. However, apart from the food industry, celebrity endorsements have also appeared frequently in recent years. For example, Ge You's endorsement of Yilin Wood Industry is suspected of illegal operation, and crosstalk performer Degang Guo's endorsement of "Hidden Secret Camellia oleifera" is suspected of false propaganda. Recently, it has been revealed that the "Jiujiu Physiotherapy Pants" endorsed by Xiao Lin, a well-known crosstalk performer, head of the China Railway Rap Troupe, master of laws and national first-class actor, are actually ordinary pants, and there is no bragging about the therapeutic effect at all.
In fact, celebrity endorsement advertising is not a unique phenomenon in China, but also very common abroad. However, the relevant foreign laws are relatively perfect, which reduces the negative effects of such advertisements. The advertising laws of European and American countries clearly stipulate that no matter stars, celebrities, experts and authorities, they must be real users of products, otherwise they are false advertisements; At the same time, if the testimony advertisement implies that the witness is more authoritative than the average person, it should be justified, otherwise it will be considered illegal.
In Japan, if the products endorsed by celebrities are fake and shoddy, it means that they may be greatly affected. I will publicly apologize to the society and won't get any job for a long time.
Although at present, China only determines the joint responsibility of celebrity endorsement in the food industry legislation, how to put it in place and really play the role of "killing chickens and making an example" is the focus of attention.
Statement 1: "Joint and several liability" is a legislative response to the serious negative impact caused by false endorsement.
Tao Chengchuan (Secretary-General of the Provincial Consumer Rights Protection Association): The newly promulgated Food Safety Law and the Henan Consumer Rights Protection Regulations (Revised Draft) reviewed by the Standing Committee of the Provincial People's Congress have clearly stated that celebrities who endorse food advertisements and infringe on consumers' rights and interests should bear joint and several liability.
The so-called joint liability refers to a kind of civil liability that two or more parties bear all or part of their debts in accordance with the law or the agreement of the parties, which can cause their internal debt relations.
"Food safety" concerns people's lives, and management should be strict. If a star thinks he can't bear this responsibility, then don't speak for him. Celebrity endorsement of food advertisements has a strong amplification effect. Once there is a problem with food, it may cause serious harm. The purpose of determining "joint liability" by law is to hope that advertising spokespersons can bear the duty of care. In fact, there are strict legal restrictions on celebrity endorsement advertisements abroad. What the spokesman said in the advertisement is equivalent to testifying in court. If they lie, they will not only bear civil liability, but also face criminal punishment.
It is not only a social problem, but also a legal problem for celebrities to take corresponding responsibilities. I believe that only by taking up legal weapons can we safeguard the legitimate rights and interests of consumers, purify the consumption environment and eradicate the problem that celebrity endorsements harm consumers' rights and interests.
Chu Jianping (Vice President of the Second People's Court of Erqi District, Zhengzhou City):
Whether a star, as a natural person, should bear the responsibility of recommending goods or services to consumers in advertisements is not mentioned in the advertising law promulgated by 1994, but the newly promulgated Food Safety Law determines that he and food producers and operators should bear joint responsibility. This is the first time that China's law clearly stipulates that celebrity endorsement advertisements should bear joint and several liability according to law. The purpose of making such a provision by law is obviously to require stars to have a sense of social responsibility when advertising food, and to be responsible for the quality of the food they endorse, so as to protect the rights and interests of consumers and ensure food safety.
Therefore, in the case that celebrities endorse false food advertisements and cause damage to consumers, the damaged consumers can claim compensation from the production and operation enterprises or the celebrities who recommend the food involved. Celebrity spokespersons for false food advertisements may bear the same responsibility as food producers and operators.
Li (Director of Zhengzhou Branch of Beijing Dacheng Law Firm):
Joint and several liability, for creditors (obligees) and debtors (responsible persons), is like "grasshoppers in the same boat". They are joint and several, and they are all responsible for debts. After one or more parties bear the responsibility, they shall divide or recover from each other. According to the different liability order of debtors, joint liability can be divided into parallel joint liability and supplementary joint liability. The debtors who are jointly and severally liable are unconditionally jointly and severally liable for all debts. In no particular order, the creditor may claim to pay off all debts from any debtor. Supplementary joint liability must be based on the premise that the principal debtor in the joint liability fails to perform or cannot fully perform, and only bear the supplementary joint liability in the second order. Joint and several liability generally refers to parallel joint and several liability, unless it is clearly stipulated by law or agreed by the parties.
China's advertising law, consumer protection law, product quality law, advertising management regulations and other laws and regulations all stipulate that social groups, organizations and producers and operators who carry out false propaganda shall bear joint and several liability from different angles, but individuals are not listed as the subject to bear the responsibility. The Food Safety Law extends the subject of responsibility to individuals for the first time, which is a measure to adapt to the development stage of China's market economy and a legislative response to the serious negative impact caused by the poor quality of some celebrity endorsement products in recent years.
How to identify the joint liability of celebrity spokespersons?
Chu Jianping: A basic condition for a star to assume joint liability is to recommend food to consumers in false advertisements. The meaning of "false advertising" is not clearly defined in China's advertising law. The provisions on "false advertisements" only appear in sporadic clauses, which makes it difficult to identify false advertisements in judicial practice. When consumers file a lawsuit to ask the stars who speak for food advertisements to bear joint and several liability, there is a problem of how to identify advertisements as false. In specific cases, the identification of false advertisements should proceed from the protection of consumers' rights and interests, referring to the identification of false advertisements in the Reply of the State Administration for Industry and Commerce on the Identification and Handling of False Advertisements, that is, "about false advertisements, we should generally identify them from the following two aspects: First, whether the products and services advertised by advertisements are objective and true; The second is whether the main contents of products and services (including standards, utility, registered trademarks used, awards, product manufacturers and service providers, etc.) have been publicized. ) It's all true. "
Li: Although the Food Safety Law has made very strict and specific provisions on the responsibilities of advertising spokespersons, how to put this provision into place is still worrying. First of all, social organizations, organizations and citizens as product spokespersons can't conduct substantive examination of the products they endorse like professional quality inspection institutions and administrative organs, and their obligation can only be to conduct formal examination within a reasonable range of attention (except personal experience or recommended products). As long as the spokesman asks the producers and operators to provide relevant certificates that the quality of the advertised products meets the safety standards when advertising, it should be considered that the duty of care has been fulfilled. It is not the fault of the advertising spokesperson if the producer or advertising agent deliberately conceals the facts or even forges the product quality and safety certificate when making advertisements, or if a batch or batches of products fail to meet the safety standards after the advertisements are broadcast. Secondly, from the actual implementation level, once a food safety incident occurs, the victims involved and the amount of compensation are often quite large. Even if advertising spokespersons are rich, it is difficult to fully compensate them based on the finiteness and uncertainty of personal property. Consumers are most likely to choose to take responsibility for the main body is still producers and operators.
Personally, I think that if we want to put this regulation in place, we must first strengthen the legal awareness and social responsibility awareness of spokespersons through publicity and education, so that they can be cautious; Second, it is necessary to refine the joint liability of the spokesperson. Starting from the legal principle of equality of rights and obligations, the responsibility of spokespersons is limited to supplementary joint and several liability, and the responsibilities of producers, operators and regulatory authorities continue to be strengthened; Third, it is necessary to clarify the distribution of the burden of proof and implement the inversion of the burden of proof, so that producers, spokespersons and advertising operators can prove that they have fulfilled their reasonable and prudent duty of care, reduce the burden of proof of consumers and make the road of consumer rights protection smoother.
Statement 3 How to standardize celebrity endorsements in other fields?
Chu Jianping: The issue of celebrity endorsement of false advertisements such as drugs and medical devices does not fall within the scope of adjustment of the Food Safety Law, so the provisions of this Law on joint liability cannot be applied. The responsibility of celebrities in these fields to endorse false advertisements should be standardized and improved through the revision of the Advertising Law. Before the law is amended, specific cases should be identified and dealt with according to the specific circumstances of celebrity endorsements and the existing legal provisions.
Celebrities, whether they endorse food or other products, should have the obligation of careful attention. According to the principle of good faith, they should fulfill their obligation to examine the authenticity of the products they advertise. If the products endorsed by him fail to fulfill the obligation of examination intentionally or negligently, and the products endorsed by him cause great losses to others, he shall bear the responsibility according to law. However, at present, there is still a lack of uniform provisions on how big the duty of care is and whether the star needs to bear the responsibility after fulfilling the duty of care. Therefore, the relevant state departments need to make further provisions, and the best solution is that the Supreme People's Court should formulate corresponding judicial interpretations and unify the standards of judicial application according to the provisions of relevant laws.
Li: It is worth discussing whether citizens can act as spokespersons in false advertisements of products in other industries and whether they can be required to bear joint liability according to the provisions of the Food Safety Law. Due to the limitation of legislators' foresight and the constant changes of social life, there are inevitably loopholes in the law. However, in civil cases, the judge will not refuse the judgment because there is no specific provision in the law. At this time, judges are allowed to make corresponding explanations according to jurisprudence to fill legal loopholes, and its legal basis lies in fairness and justice. From this point of view, it is also in line with the legal principles of fairness and justice that citizens act as spokespersons in false advertisements of products in other industries, and judges apply the provisions of joint and several liability by analogy. In addition, China's "General Principles of Civil Law" stipulates that if an agent carries out agency activities knowing that the entrusted matters are illegal, the principal and the agent shall bear joint and several liability. Accordingly, as long as it is determined that the product spokesperson knows that it is a false propaganda endorsement and causes damage to consumers, the relevant provisions of the General Principles of the Civil Law can also be applied and ordered to bear joint and several liability.