Oli Wong
The Supreme Administrative Court rendered the 109-Pan-346-Zi Decision of June 24, 2020 (hereinafter, the “Decision”), holding that although the promotional text on a tobacco product is not an essential text for the package, still it can be regarded as a tobacco advertisement because the purchaser may leave the premises with it and thus achieves the purpose of promoting tobacco products to unspecified individuals.
According to the facts underlying this Decision, Appellant Company A was reported to import four tobacco products from Japan (hereinafter, the “Tobacco Products at Issue”) with containers printed with “Japan XX” (hereinafter, the “Text at Issue”). The Appellee (the Department of Health of Taipei City Government) determined as a result of its review that the Text at Issue on the containers of the Tobacco Products at Issue brings the visual perception that Japanese formula are used to the consumers, and that this can whet the desire of the consumers to purchase and try the products. After product demonstration or acquisition of consumers, a certain degree of attraction or inquiry among unspecified consumers is likely to occur and is sufficient to whet the desire of the consumers to purchase and achieve the advertising objective of soliciting sales in violation of Article 9, Subparagraph 1 of the Tobacco Hazards Prevention Law. Therefore, a fine was imposed on the Appellant pursuant to law (hereinafter, the “Original Disposition”). Dissatisfied, the Appellant filed an administrative appeal. After a decision was rendered to reject the administrative appeal, an administrative action was brought to set aside the decision on the administrative appeal and the Original Decision. After the original decision was subsequently rendered to reject the administrative action, the Appellant appealed.
According to the Decision, Article 1, Article 2, Subparagraphs 3 and 4, Article 9, Subparagraph 1 and Article 26, Paragraph 1 of the Tobacco Hazards Prevention Law show that tobacco advertising refers to any form of commercial advertising, promotion, proposal or action which has the purpose or effect of promoting or facilitating the use of tobacco products to an unspecified number of consumers, and which shall not promote or advertise tobacco products in specific manners, including advertising by means of radio, television, films, video recordings, electronic signals, the Internet, newspapers, magazines, billboards, posters, or other writings, drawings, objects or electromagnetic records. Manufacturing or importing operators in violation of the above requirements will be subject to a fine, which may be imposed continuously.
The Decision further indicated that the containers of the Tobacco Products at Issue are printed with the Text at Issue, which is located on the display side of the packages of the Tobacco Products at Issue directly below the brand name, so that when consumers see the Tobacco Products at Issue, they will pay the same attention to the above promotional text as the main trademark when seeing the Tobacco Products at Issue. Since the Text at Issue is printed on the front side of the containers (packages) of the Tobacco Products at Issue and occupies a conspicuous area and location with an easily identifiable color scheme, it is very easy for the Text at Issue to attract the attention of consumers. In addition, the font size of “Japan” is bigger and can easily make the consumers believe that the Tobacco Products at Issue have better quality since they are imported from Japan. This will whet the desire of the consumers to purchase the products. After product demonstration or acquisition of consumers, a certain degree of attraction or inquiry among unspecified consumers is likely to occur and is sufficient to whet the desire of the consumers to purchase and achieve the advertising objective of soliciting sales. The Text at Issue on the containers (packages) of the Tobacco Products at Issue is not an essential text to the packages of the tobacco products. According to the overall depiction of the text, it has the implication of advertising and promoting tobacco products to unspecified consumers and meets the definition of the “Tobacco Advertising” under Article 2, Subparagraph 4 of the Tobacco Hazards Prevention Law. Furthermore, the promotional language contained in the Tobacco Products at Issue is not essential to the packaging of the tobacco products. Since the consumers may leave the sales locations of tobacco products with it, the promotional language can achieve the effect of promotion or advertising. Since it is sufficient to conclude that the Tobacco Products at issue achieved the objective of advertising and promoting tobacco products to an unspecified majority of people, the promotional language is a tobacco advertisement under Article 2, Subparagraph 4 of the Tobacco Hazards Prevention Law and constitutes a method prohibited under Article 9, Subparagraph 1 of the same law. The original decision, which reached its findings pursuant to law, is not legally inappropriate. The Appellee’s claim that the original decision should be reversed is groundless and should be rejected.