By King & Wood Mallesons’ Healthcare Group
Since March 2013, “consumers” from several cities such as Jinan, Shenyang, Chongqing, Sanya have sued Wong Lo Kat Guangzhou Health Industry Co. Ltd. (“Wong Lo Kat”) for disputes over the sales and purchase agreements and product liabilities on the ground of “the change of taste in Wanglaoji’s herbal beverage”. KWM lawyers represented Wong Lo Kat, and succeeded in protecting our client’s legal interests and winning the “China’s first consumers’ taste safe-guarding case” and all of its subsequent relevant cases.
In this series of cases, the consumers claimed that change of product taste was in relation to the definition of the consumers’ right to knowledge, especially relating to the judgment on whether the details of a product’s taste in the food industry fall under the scope of information obligated to be disclosed. According to Article 8 of the Law of Protection of the Rights and Interests of Consumers, “[a] consumer shall have the right to knowledge of the true facts concerning commodities purchased and used or services received. A consumer shall have the right to require business operators to provide relevant information of commodities on price, place of origin, producer, usage, functions, specifications, grade, main ingredients, date of production, date of expiry, certificate of inspection, operation manual and after-sale service, or contents, specifications and fees of services in respect of commodities or services as the situation requires”. However, the law does not capture the “taste” of a product as a relevant circumstance for the consumers’ right to knowledge.
Several court judgments all determined that the change of taste claimed by the consumers is solely based on personal sensory judgment of food, being subject to an individual’s subjective recognition as a result of his or her physical condition, psychological status, external environment and other various factors. Thus, it is patently unfair to use such subjective recognition as the foundation for imposing a burden on the operators to assume responsibility. In this case, the court ultimately rejected the consumers’ claims.
The new Law of Protection of the Rights and Interests of Consumers which was amended on 25 October 2013 and took effect on 15 March 2014, aims to further enhance protection of consumers’ rights. However, such further safeguard has no implication to limit the operators’ autonomous operating rights. As well observed from the “China’s first consumers’ taste safe-guarding case” and its subsequent series of cases, in relation to fulfillment of the legal duty of information disclosure, judicial authorities would give due protection to the legal interest of enterprises with equal weight instead of imposing additional obligations on the enterprises based on the consumers’ right to knowledge.