Ankwei Chen
The Kaohsiung High Administrative Court rendered the 108-Jian-Shang-Zi-18 Decision on May 7, 2019 (the “Decision”) in which it held that the “form of tobacco products” language in Article 14 of the Tobacco Hazards Prevention Act (“THPA”) only requires the outer shape and appearance of the product to be consistent with the core concept of a tobacco product to be considered within the scope of the provision even if the feel and odor of the product is not quite the same as tobacco products.
In this case, the appellee sells certain merchandise on its Facebook page and the Shopee online shopping platform. The John Tung Foundation made a complaint to the local Department of Health where appellee is located about the merchandise, and the appellant (the Tainan City Government) determined that appellee violated Article 14 of the THPA for selling products that have the outer appearance and shape as tobacco products and issued a fine of NT$2,000 to the appellee. Appellee contested the decision in an administrative appeal but lost the appeal on June 7, 2018. Following the loss, the appellee filed this administrative action.
The Decision first lays out that the regulatory purpose behind Article 14 of the THPA is to prevent minors from coming into contact with edible products or toys that have the same appearance as tobacco products would cause an effectively lowered appreciation or a distorted view by such minors of tobacco products and their dangers to health. The provision is then enacted in the interest of the health of citizens as part of the THPA’s legislative purpose and regulatory function.
The Decision further points out that although paper cigarettes or cigars typically have a cylindrical shape with various diameters and lengths via wrapping the paper wrapper or cigar binder around the tobacco content, they are not limited to those shapes. Given the definition of “tobacco products” as well as the act of “smoking” in Article 2 of the THPA, and in consideration of the legislative reasoning, it is clear that the candies, snacks, toys or other objects “in the form of tobacco products” in Article 14 only requires the outer appearance and shape to be consistent with the “core concept” of tobacco products in the “tobacco products” definition in Article 2 for such merchandise to be covered within the scope of Article 14 regardless of the differences in length, width, volume, mass, feel, odor with actual tobacco products. However, in the original proceeding, although the appellant used the Internet images submitted by the John Tung Foundation as the basis of its arguments, the original proceeding court should have conducted an investigation of evidence and record its findings for the parties to comment. As the court failed to take pictures of the actual merchandise in question and make official records, the parties are denied an opportunity to comment and argue on the results of the investigation, and it is not possible to determine whether the outer shape and appearance of the merchandise is truly consistent with the “core concept of tobacco products” as mentioned above. As a result, the original proceeding’s decision contains errors of law and should be reversed. The original proceeding shall thus render a new decision that is consistent with the law after re-hearing the matter.