On February 2017, Mr. Yang bought 55 packages of dairy products from an Inner-Mongolia retailer.

The package of these products bore a claim “without sucrose”; however, the nutritional label did not show any content for “sucrose”.

The nutritional label in fact displayed information about energy, protein, fat, trans fatty acids, carbohydrates, sodium and other nutrients, but not for sucrose ingredients.

Claim of the plaintiff

The plaintiff – which declared to be affected by high level of sugars in the blood – complained that the claim “without sucrose” constitutes nutritional claim and – as such – required that the claimed nutrient shall be labeled on the nutritional label. In particular, although sugar is a non-mandatory item for nutritional label, the plaintiff claimed that according to article 4.2 of GB28050 the content and NRV percentage of sucrose should have been declared on the label.

On these grounds the plaintiff sued before the court of Chengdu the retailer claiming refund for the price of the goods, as well as ten-times compensation (amounting to RMB 8,745) based on article 148 of the Food Safety Law.

Decision

The Court referred to an interpretation for nutritional claim contained in a notice issued by NHFPC in 2014, whereby “nutritional claims are descriptions and statements about nutritional features of food, including nutritional elements content claims and comparison claims. Among these, content claims are claims describing levels of content of energy or nutritional elements in food, by using expressions such as “contains”, “high in (or rich in)”, “low”, “without”, etc. Prepackaged food label showing “rich in certain nutrients” or similar expressions belongs to the domain of nutritional claims and should be labeled according to GB 28050”.

Based on this, the court considered that the claim “without sucrose” certainly constitutes nutritional claim and therefore it should be labeled in compliance with GB 28050 – i.e. the nutritional label should show the content and NRV% of sugar.

On these grounds, the court supported the claim for refund of the price paid by the plaintiff (i.e. RMB 874.50).

As for the claim of ten times compensation, the Court held that according to the second paragraph of Article 148 of the “Food Safety Law of the People’s Republic of China“, such claim is not eligible for flaws of food label and product descriptions which do not affect the food safety or mislead customers.

Therefore, the preconditions for the right to perceive ten-fold compensation under article 148 of the PRC Food Safety Law include either (i) impact on food safety or (ii) misleading consumers.

In this case the Court held that whether these preconditions exist or not depends on whether or not the food in fact contains sucrose; in fact, if the food does not contain sucrose, there would not be potential harm to hypertensive individuals and therefore this would not constitute a false claim.

As the plaintiff did not provide evidence about the actual content of sucrose, the court therefore did not support his claim for ten-fold compensation.

Comments

Under GB 28050, sugar is a non-mandatory item for nutritional label purposes; however, non-mandatory items become mandatory (i.e. must be labeled) in case of any nutritional claims about such nutrients.

The claim in this case concerns sucrose (蔗糖), which is one kind of sugar. Sucrose is clearly included in the legal definition of sugar. GB 28050 mentions – as mandatory item – only sugar (糖) or lactose (乳糖), not sucrose nor any other kind of sugars (fructose, glucose, etc..). Therefore, based on the above decision and on the wording of GB 28050, a claim about sucrose should result in mandatory nutritional labeling of sugar (not of sucrose itself).

As for the decision about punitive damages, it is important to understand that those damages are not automatically granted in case of any non-compliant claim; in practice, the plaintiff still needs to prove a substantial flaw of the claim with referral to the actual condition/content of the food product.