On August, 2013, a consumer filed a complaint for misleading advertising with Dong Xin AIC (Zhejiang province) against Hangzhou-based roasted nut and dry-food producer Yaotaitai.

According to the complaint, Yaotaitai improperly labels some of its products as “apricot kernel” (杏 仁) instead of “almond” (扁桃仁).

The procedure is pending now and AIC solicited comments from Yaotaitai.

In 2013, many other complaints concerning almonds have been filed against food operators (producers as well as distributors) by consumers.

Food producers, stores and supermarkets selling products improperly labeled may face the following:

  1. Refunding to consumers twice the product price (art. 49-50, Consumer Protection Act). Besides, AIC, based on the circumstances, shall issue a warning, confiscate unlawful earnings, or impose a fine up to five times the value of the unlawful earnings; and/or
  2. Fines up to 200,000 RMB for false or misleading advertising (Art. 24, Unfair Competition Law).

In practice, more and more so-called “professional consumers” chase non-compliant products, which they often purchase in massive quantities in order to collect higher punitive damages. Claims are aimed not only at producers, but also at retailers/supermarkets frequently chosen as “easy” targets.

Background

All food products sold in China need to be labeled in Chinese. This requires – for imported food – the name of the product to be translated into Chinese. Moreover, food name is often printed also on the food packaging.

Since decades, food operators have translated “American big almond” as “美国大杏仁”, and “almond” as “杏仁”. However, consumers’ associations recently brought to the authorities’ attention that these translations are not correct, as “杏仁” more properly means “apricot” or “apricot kernel”. Beside the difference in appearance, almonds also lack some of the effects attributed to apricot kernels (such as cure for cough).

In this scenario, on 21st November 2012 the Specialized Committee for Roasted Seeds and Nuts of China National Food Industry Association publicly announced that “American big almond” shall be translated as “扁桃仁” or “巴旦木”. This was followed, on 1st April 2013, by entry into force of PRC industrial standards Food term for Nuts and Seeds (SB/T10670-2012) and Cooked almond (BaDanMu) nuclear and kernel (SB/T10673-2012).

Soon after, on 18th June 2013 a Chinese consumer won its appeal against Shenzhen Market Supervision Administration – which had previously refused to accept his complaint for wrongful translation of “almond”.

After such decision, both food producers and distributors have been put under great pressure by consumers or consumer associations.

Consequence

Food producers and distributors need not to panic.

Leveraging on their common interests (re-labeling a big stock of food products requires months, which badly affect both producers and distributors) they need first of all to jointly work out emergency plans aimed at fixing the problem in a reasonable short period of time. Both legal and technical issues shall be carefully addressed.

Then, timely communication with local authority is crucial: even if the law in theory grants no grace period to amend translations on labels and packaging, authorities can have a pragmatic approach and can give operators the time to implement their emergency plan when presented with a workable plan and a clear legal frame.

This hot season for apricot and almonds shall be addressed as a common problem by food producers and distributors – mainly when mass scale products are involved. Fighting with each other equals playing the professional consumers’ game, and – in the end – damages both.