Are health products 'medicine' or 'food'?

With the improvement of living standards, people pay more and more attention to health preservation, and antler, cordyceps, snow lotus, etc. are often eaten as nourishing health products. However, many consumers do not know whether these edible health products are medicines or foods, and they have no idea what to do when they encounter related rights disputes.

Case:

Mr. Wang bought four boxes of "Deer Antler (Selected Blood Pieces)" from a company for a total of 5032.1 yuan. Later, Mr. Wang believed that the antler involved in the case did not indicate the usage, dosage and precautions. It was a three-no product and complained to the Food and Drug Administration. The bureau issued a report registration form in response, stating that velvet antler is listed in the 2015 edition of the Chinese Pharmacopoeia and is not a food and medicine homologous item. The reported velvet slice does not violate the provisions of the Food Safety Law of the People’s Republic of China, and refunds Responded to the request and report rewards. Mr. Wang was dissatisfied with the response of the Food and Drug Administration, insisting that velvet antler is a food.

Therefore, the lawsuit was brought to the court and demanded that a company compensate Mr. Wang 10 times the purchase price and bear litigation costs in accordance with the Food Safety Law.

In the above case, the court held that the nature of velvet antler was non-food and medicine with the same source of Chinese medicinal materials, and it was sold separately, and the nature of the product involved was medicine, not food, and the "Food Safety Law of the People's Republic of China" should not be applied. Therefore, the judgment rejected Mr. Wang's claim .

How to distinguish between food, medicine and health products?

Seeing this, many consumers may wonder, the deer antler in the above case has nourishing effects, shouldn't it be a health product? Now let’s take a look at how relevant laws, regulations and national standards regulate food, medicine, and health products?

01 What is food?

Article 150 of the "Food Safety Law of the People's Republic of China": Food refers to all kinds of finished products and raw materials for human consumption or drinking, as well as articles that are traditionally both food and Chinese medicinal materials, but do not include articles for therapeutic purposes .

02 What is medicine?

The first paragraph of Article 100 of the "Pharmaceutical Administration Law of the People's Republic of China" refers to drugs used to prevent, treat, and diagnose human diseases, to purposely regulate human physiological functions, and to provide indications or functional indications, usage and The amount of substances includes Chinese herbal medicines, Chinese herbal medicines, Chinese patent medicines, chemical raw materials and their preparations, Antibiotics, biochemical drugs, radioactive drugs, serum, vaccines, Blood Products and diagnostic drugs.

For medicines, it is necessary to pay attention to Chinese medicinal materials. Chinese medicinal materials are divided into Chinese medicinal materials of food and medicine homology and Chinese medicinal materials of non-food medicine. What is Chinese medicinal materials of food and medicine?

The Chinese medicinal materials that have the effect of curing diseases and can also be used for diet are Chinese medicinal materials of the same origin for food and medicine. Specifically, they are formulated and announced by the Pharmacopoeia of the People's Republic of China and the health administration department of the State Council in conjunction with the food safety supervision and management department of the State Council The regulations shall prevail.

According to relevant regulations, velvet antler is a non-food and medicine homologous Chinese medicinal material. For this kind of Chinese medicinal material, if the merchant sells it separately instead of adding it to food as an ingredient, consumers should follow the "People’s Republic of China" Rights protection shall be carried out in accordance with the relevant provisions of the Drug Administration Law. If it is added as an ingredient to food, rights protection shall be carried out in accordance with the relevant provisions of the Food Safety Law of the People’s Republic of China.

03 What are health products?

According to GB16740-2014 "National Food Safety Standard Health Food": Health food refers to foods that claim to have specific health functions or supplement vitamins and minerals, that is, suitable for specific people to eat, have the function of regulating the body, and are not treated Food that is aimed at disease and does not cause any acute, subacute or chronic harm to the human body.

From the standards of health products, we can see that although many consumers regard health products as medicines, health products are essentially foods.

Although the deer antler sold separately by the merchant in the above case has nourishing effects, it is essentially a medicine, not a food, or a health product.

Popular law

01 What should I do if it is found that pharmaceutical ingredients are added to health products?

Note: Do not add drugs to food.

Article 38 of the "Food Safety Law of the People's Republic of China" stipulates that drugs shall not be added to the food produced and sold, but substances that are both food and Chinese medicinal materials according to the tradition may be added. According to tradition, the list of substances that are both food and Chinese medicinal materials is formulated and announced by the health administration department of the State Council in conjunction with the food safety supervision and management department of the State Council.

02 How to use punitive damages to protect rights?

Regarding punitive damages, Article 148 of the Food Safety Law of the People’s Republic of China: Consumers who suffer damage to food that does not meet the food safety standards may claim compensation from the operator for the loss or the producer loss.

The producer and business operator who receives a consumer compensation request shall implement the first responsibility system and pay compensation first without prevarication; if it is the responsibility of the producer, the operator has the right to recover the compensation from the producer after the compensation; if it is the responsibility of the operator, the producer shall compensate Later, it has the right to claim compensation from the operator.

When producing food that does not meet the food safety standards or operating foods that do not meet the food safety standards, in addition to demanding compensation for losses, consumers can also demand compensation from the producer or operator for ten times the price or three times the loss; If the amount of compensation is less than 1,000 yuan, 1,000 yuan.

However, the labels and instructions of the food have defects that do not affect food safety and will not mislead consumers.

03 Does the application of punitive damages need to be based on the actual damage caused to consumers?

No, as long as consumers buy unsafe food, they can claim punitive damages without proof of personal damage.

04 Under what circumstances can consumers claim punitive damages?

The addition of toxic and harmful ingredients or the prohibition of addition to the health products or the obvious lack of content in the labels and instructions can claim punitive damages that seriously affect food safety.

If the error of the food label and instruction is indeed a clerical error, or other defects that do not affect food safety and will not cause misleading to consumers, usually consumers can only request cancellation of the contract and refund of the product, and no punitive damages.

There are false propaganda in health care products. The false propaganda is about the business qualifications, the main functions of the goods or services, the main standards and other main contents of the contract, which directly misleads consumers to purchase the products, and consumers can demand punitive compensation. Punitive damages cannot be claimed for those that are insufficient to mislead consumers.

prompt

When choosing health food, pay attention to whether the outer packaging is complete and whether the following content is printed: 1. Health care and suitable for the crowd; 2. Edible method and dosage; 3. Storage method; 4. Name and content of functional ingredients; 5. Health food approval Symbol; 6. Health food logo.

When purchasing imported health food, consumers should not only choose the health products imported through formal channels, but also pay attention to the Chinese version of the label on the outer packaging of imported health products, and the added ingredients should comply with my country’s food safety regulations. Does not contain ingredients that are prohibited in our country.

Consumers with problems should protect their rights in a timely and rational manner, and not excessively. At the same time, consumers should establish a rational consumption concept and awareness of evidence rights protection, pay attention to retaining evidence during the consumption process, and properly choose dispute resolution methods.

Consumers should keep the invoices of the purchased products when purchasing health products, and pay attention to the records of communication with the seller during the online shopping process. Reasonably use corresponding methods to record the process of infringement and fraud.

Fully understand product information and related format terms. Before purchasing health products, consult the business operator about product performance and efficacy. Don’t trust the business’s excessive promises. Before consuming, read carefully the business’s format and terms. Don’t try to make a profit and fall into a consumption trap.