On January 10,2021, Fang Baohong, a lawyer with Henan Changhao law firm, made a thematic sharing on punitive damages for food safety.

This sharing mainly from the practice experience summary and the request right foundation has made the legal analysis to the food safety dispute.

Lawyer Fang first made a brief introduction to this kind of dispute from the many food safety cases he represented, and expounded the rules of the court for the determination of "Professional anti-fake person" , from the "Civil Code" , "Food Safety Law" , "Consumer Protection Law" and "Supreme People's Court on the trial of food safety civil disputes in the interpretation of the law applicable to a number of issues (I) " on food safety punitive damages related provisions.

The compensation for damages in food and drug disputes is a common dispute, which involves not only the liability for breach of contract, but also the liability for tort, the protection of consumers'rights and interests, the trade management of food and drug, and the supervision of social public safety. Food and drug disputes include not only breach of contract disputes, but also tort disputes. The subjects of dispute include not only consumers and food sellers and producers, but also online trading platform providers, fake food, pharmaceutical advertising spokespersons, promoters and so on. As far as the nature of the disputes is concerned, the food and drug disputes include not only the disputes of personal injury caused by food and drug safety problems, but also the disputes of quality caused by food and drug consumption and use. The applicable legal provisions for such disputes mainly include contract law, Tort Liability Law, Consumer Protection Law, food safety law and related judicial interpretations.

In recent years, with the rapid development of e-commerce, the scale of food trading through the network platform is also growing. Online shopping has now become a very common way of consumption,"the Supreme People's Court on the trial of food safety civil disputes on a number of issues of the interpretation of the law applicable to the case (I)"during the formulation process, food safety on the Internet has been a high degree of concern.

On the one hand, the self-run and self-run misleading issues of e-commerce platform. In practice, the electronic commerce platform mainly operates through two ways, one is to provide the platform service for the third party transaction, the other is to conduct the transaction directly as a party, namely the self-management mode. Under the self-management mode, the electronic commerce platform itself is the food business operator, should undertake the legal responsibility as the food business operator. Who is the counterparty to the transaction is crucial to the consumer's choice. The operator shall protect the consumer's right to know and truthfully inform the relevant information of the operator. According to the provisions of the law on electronic commerce, if an operator of an electronic commerce platform carries out self-service business on its platform, it shall clearly distinguish between self-service business and non-self-service business, and shall not mislead consumers. However, in practice, e-commerce platform should be marked self-employed rather than the case of non-marking. Article 2 of the interpretation addresses this situation, requiring that the food products sold by the operators of e-commerce platforms in the form of marked self-employed business or those sold in the form of actual self-employed business that are not marked self-employed do not meet food safety standards, the People's Court shall support any claim by a consumer under Article 148 of the Food Safety Law that the operator of an electronic commerce platform shall assume liability as a food operator. In addition, in practice, there are self-run businesses that are not the operators of e-commerce platforms, but the signs and other signs made by the platforms make consumers think that the platforms are self-run, and consumers buy food based on their trust in e-commerce platforms, misleading information to consumers. According to article 2 of the interpretation, in such cases, the consumer also has the right to demand that the operator of the electronic commerce platform assume the responsibility of the food operator.

On the other hand, compared with consumers, e-commerce platform operators have certain advantages in the possession of information, which can enter the network to manage food has a certain degree of control. Article 3 of the interpretation stipulates that the operator of an e-commerce platform fails to register the real name of the food operator on the platform in accordance with the law, review the license, or fails to fulfill obligations such as reporting and ceasing to provide online trading platform services, so that the legitimate rights and interests of consumers have been harmed, consumers have the right to claim the e-commerce platform operators and the platform within the food operators to bear joint and several liability.

Food safety concerns the life and health of consumers and must be specially protected, this regulation is helpful to urge the operators of the electronic commerce platform to strengthen the examination of the relevant qualifications and qualifications of the food operators in the platform, and to take corresponding remedial measures according to law, so as to better protect the consumers who buy online.