“Ten Times “or” One Time “?

Miss Wang brought a piece of cake in a store. After the payment, she found that the identified shelf life had expired, so she required the store to refund the payment, and pay a compensation equivalent to ten times of the price of the piece of cake. The store agreed to do so. A few days later, Miss Wang’s colleague Miss Zhang bought a piece of cake in the same store, after a few bites, she found a fly in the cake, thought of Miss Wang’s experience, she asked the store for the same compensation as Miss Wang, however, the store only agreed to refund the payment and pay a compensation equivalent to one time of the price of the piece of cake.

Why does the store treat differently to the two customers when facing the problems related to the same food? According to Article 96 of “Food Safety Law”, “….. Besides claiming damages, a consumer may require the producer, who produces food which does not conform to the food safety standards, or the seller who knowingly sells food which does not conform to the food safety standards, to pay 10 times the money paid. ” , in view of this, the precondition for the sellers to bear 10 times compensation should be “knowingly”, which means that the sellers shall be aware that the food fails to meet the food safety standards. However, “Food Safety Law” has not stipulated the definition of “knowingly” and the burden of proof in detail, the relevant judicial interpretations have not been released either, therefore, in judicial practice, there is no standard on the identification of “knowingly”, and the judgments on the similar cases may be different.

In practice, the typical viewpoint of the commerce and industry dept. and consumers association and other substantive dept. has grouped the pattern of “knowingly” manifestation into 10 categories [1]. For the consumer, you can preliminarily indentify in the following 3 aspects, a) to check whether the label on the package has indicated the serial numbers of the production license; b) to identify whether the food has been went bad but still offer for sale ) to check whether the food is out of the shelf life.

In this case, the shelf life on the package of the cake brought by Miss Wang has expired, the store shall be deemed as “knowingly”, which is not controversial in practice; however, people would not know that there is a fly in the cake which brought by Miss Zhang from its appearance, under such circumstance, whether the store can be deemed as “knowingly” , it shall be analyzed case by case based on the typical viewpoint of the foregoing dept. and the specific conditions of the individual case simultaneously.

In case the seller is not knowing, the customer could only ask the seller for the compensation of one times in accordance with Article 49 of Law on Protection of Consumer Rights and Interests.

Note: [1] the substantive departments classified the suspected of “knowingly” pattern of manifestation into 10 categories as follows: (1)to sell food which clearly fails to meet the food safety standards; (2) to sell food which shelf life has expired, change or amend the date of production in order to extend the shelf life; (3) the same illegal facts punished felon; (4) to have been warned in advance, without correction; (5) the same batch of food which determined by the relevant dept. that it fails to meet food safety standards and be published in the media; (6) upon the order of the relevant dept. on stop selling the food which might have safety issues, without the consent of the supervision dept, still sell such food which has been finally proved not meet food safety standards; (7) to intend to use unfair sales channels, and the price is much lower than the certified food in the market; (8) to draft the invoices, account books, and other accounting documents by fraud ; (9) to transfer the sale proof, provide false evidence and statement after the incident; (10) Other circumstances that could be deemed as “knowingly”.