On "Children's Day", a holiday that belongs to children, a piece of good news about the protection of minors also arrives as scheduled, like a special and heavy "June 1 gift". On May 28, the Beijing Internet Court held a press conference on the online judicial protection of minors (click to view), released the "Beijing Internet Court White Paper on the Internet Judicial Protection of Minors (2021-2026)", and notified 12 typical cases (click to view). Among them, Jingshi Lawyers Zhong Lanan and Liu Zhikun jointly represented "The sales contract for selling 'cigarette cards' as children's toys on the Internet is invalid - Li Mou v. a network technology company and an online store information network sales contract dispute case"was successfully selected . The first-instance judgment in this case was the first in the country to make it clear that selling "cigarette cards" with tobacco logos as children's toys on the Internet was harmful to the physical and mental health of minors and violated public order and good customs, and the relevant sales contract was invalid.
🔺Judgment
- Basic Case Facts The plaintiff, Li, paid for 40 "cigarette cards" at an online store on the platform through an e-commerce platform operated by an Internet technology company. The product page is promoted as "genuine", "fidelity", "small toys for children", "keep away from mobile phones", etc. The plaintiff believed that the two defendants sold cigarette cards as children's toys, which violated the Advertising Law of the People's Republic of China, the Law of the People's Republic of China on the Protection of Minors and other legal provisions, and had adverse effects on the physical and mental health of minors. Moreover, the "cigarette cards" they received were printed materials and were not "genuine" and "authentic" as advertised. They then filed a lawsuit in court, demanding that the products be removed from the shelves, the purchase price be refunded, and an apology be made.II. Agent’s opinion
In this case, the plaintiff Li purchased the “cigarette card” products involved through an e-commerce platform. The products involved bear obvious tobacco brand logos, but are promoted and sold to unspecified consumers as "children's toys". The plaintiff’s attorney believed that this behavior violated relevant legal provisions and the sales contract involved in the case should be invalid according to law. The specific reasons are as follows:
- The transaction involved violated the mandatory provisions of the law, and the relevant contract is invalid according to law
The agent believes that although the "cigarette card" appears in the form of a card, it is essentially a reproduction carrier of tobacco product trademarks and logos. Its printing and sales are without permission and violates the relevant provisions of the "Tobacco Monopoly Law of the People's Republic of China" and its implementation regulations on the management of tobacco product trademarks and logos. At the same time, the products involved were sold to minors or potential minors through the Internet, which also violated the relevant provisions of the "Law of the People's Republic of China on the Protection of Minors" prohibiting the dissemination of content that is harmful to the physical and mental health of minors. According to Article 153 of the Civil Code of the People's Republic of China, civil legal acts that violate the mandatory provisions of laws and administrative regulations are invalid, and the contract involved should be deemed invalid according to law.
- Packaging and selling “cigarette cards” in the form of “children’s toys” violates public order and good customs
The merchants involved in the case packaged and marketed the "cigarette cards" with slogans such as "genuine", "fidelity", "children's toys" and "stay away from mobile phones". They made the products with tobacco elements interesting and game-like, and combined them with children's social activities, collections and other scenes, which can easily induce minors to come into contact with and identify with tobacco culture. This behavior may not only have adverse effects on the physical and mental health of minors, but is also against social public interests and good social customs. According to the relevant provisions of the Civil Code, civil legal actions that violate public order and good customs shall be invalid.
- After the contract is invalid, the seller shall be responsible for returning the property and making compensation
According to Article 157 of the Civil Code, after the contract is invalidated, the property obtained as a result of the contract shall be returned; the party at fault shall also compensate the other party for the losses suffered thereby. The agent believed that the defendant clearly knew that the "cigarette card" involved the dissemination of tobacco labels and still sold it in the form of a children's toy. This was an obvious fault and the defendant should return the purchase price in accordance with the law and bear the reasonable expenses incurred by the plaintiff in defending his rights.
- E-commerce platforms that fail to fulfill their audit and management obligations should bear corresponding responsibilities
The agent believes that as an online transaction service provider, the e-commerce platform has corresponding management obligations for the commodity operating activities on the platform. The platform should have known that the products involved in the case had been sold publicly under the name "children's toys" for a long time, but it failed to take necessary measures such as removing them from the shelves and blocking them in a timely manner, and failed to effectively perform its platform governance responsibilities. According to the relevant provisions of the "E-Commerce Law of the People's Republic of China", platforms should bear corresponding legal responsibilities in accordance with the law and clean up related products in a timely manner to prevent further damage.
- Referee results After trial, the court held that the promotion and sale of “cigarette cards” as a material carrier carrying tobacco trademarks and brand identities constituted the dissemination of tobacco product symbols and penetrated to minors in a covert and interesting way. Minors are in a critical period of personality building. "Cigarette Cards" use gamification to bundle tobacco brands with experiences such as peer interaction, competition, and comparison, which can easily induce their curiosity and identification with tobacco. Online stores use slogans such as "children's toys" and "stay away from mobile phones" and package "cigarette cards" as healthy entertainment alternatives, misleading minors and parents, and damaging the physical and mental health of minors. The online store involved in the case sold hundreds of orders in a short period of time and sold "cigarette cards" in bulk for the purpose of profit, which harmed social and public interests and violated public order and good customs. The contract involved in the case should be invalid. The defendant should return the payment to the plaintiff; in order to prevent the "cigarette cards" from entering the market again, they should be destroyed. Since the store involved in the case had removed the "cigarette card" from its shelves, the court rejected the plaintiff's other claims.4. Typical meaning
This case starts from protecting the physical and mental health of minors and adheres to the principle of what is best for minors. It is clear that selling "cigarette cards" with cigarette logos as children's toys on the Internet harms the physical and mental health of minors and violates public order and good customs, and should be invalid. This judgment blocks the channels for tobacco information to covertly penetrate into minors, strengthens the judicial protection of minors in the online transaction environment, and encourages e-commerce operators and platform operators to jointly create a safe, healthy, and clear online consumption environment.
🔺Jingshi lawyer Liu Zhikun and the plaintiff join tly presented a banner to the judge
Lawyer Profile
Zhong Lanan
Partner, Beijing Jingshi Law Firm
Deputy Director of Jingsh Law Firm (National) Commercial Arbitration Professional Committee
Zhong Lan'an, Master of Laws from Renmin University of China, partner of Beijing Jingshi Law Firm, deputy director of the Commercial Arbitration Professional Committee of Jingshi Law Firm (National); employed as a practical tutor for the Master of Laws at China University of Political Science and Law and an arbitrator in several arbitration institutions.
Liu Zhikun
Partner, Beijing Jingshi Law Firm
Director of the Criminal Committee of Jingshi Law Firm (National)
Lawyer Liu Zhikun graduated from Jilin University Law School, is a partner of Beijing Jingshi Law Firm, and a director of the Criminal Committee of Jingshi Law Firm (National).
Professional fields: real estate project disputes, criminal defense, corporate business, civil and commercial litigation and arbitration, marriage and family affairs, etc.
He has served as the long-term legal counsel for more than ten central state-owned enterprises or large private enterprises, including China Record Group, China Drama Publishing House, National Library, Wanji Holding Group, Datang Electric Power, Handong Sports, and Shumi Technology.