19/12/2022 15:25

Judgments on manufacturing and trading of counterfeit food or food additives in Vietnam

Judgments on manufacturing and trading of counterfeit food or food additives in Vietnam

I would like to know more judgments on manufacturing and trading of counterfeit food or food additives. Thanks! - Uyen (Can Tho, Vietnam)

I. Penalties for manufacturing and trading of counterfeit food or food additives

1. What are counterfeitgoods?

According to the provisions of Clause 7 Article 3 of Decree 98/2020/ND-CP prescribing penalties for administrative violations against regulations on commerce, production and trade in counterfeit and prohibited goods, and protection of consumer rights, “counterfeit goods” include:

- Goods whose uses are not consistent with their nature or names; the goods which are useless or whose uses are other than the announced or registered ones;

- Goods of which one of quality indicators or basic specifications or the amount of primary substances contributing to their uses only reaches 70%, or less, compared to the minimum levels prescribed in technical regulations or quality standards registered, or announced, or specified in their labels or packages;

- Counterfeit drugs defined in Clause 33 Article 2 of the 2016 Law on Pharmacy and counterfeit herbal ingredients defined in Clause 34 Article 2 of the 2016 Law on Pharmacy;

- Veterinary drug or pesticide that does not contain any active ingredients; does not contain all of registered active ingredients; contains active ingredients other than those specified on its label or package; contains at least an active ingredient whose content only reaches 70%, or less, compared to the minimum level prescribed in relevant technical regulations or quality standards registered or announced;

- The good whose label or package containing information forging name or address of manufacturer, importer or distributor, forging registration number, declaration number or barcode of the good, forging package of good of another entity, or forging the origin of good or place of manufacturing, packaging or assembling;

- Counterfeit stamps, labels and packages of goods."

2. Penalties for manufacturing and trading of counterfeit food or food additives

According to the provisions of Article 193 of the Criminal Code 2015, Clause 43, Article 1 of the Criminal Code, amended in 2017, the penalty levels for the crime of manufacturing and trading of counterfeit food or food additives are as follows:

"Article 193. Manufacturing and trading of counterfeit food or food additives

1. Any person who manufactures or deals in counterfeit food or food additives shall face a penalty of 02 - 05 years' imprisonment.

2. This offence committed in any of the following circumstances carries a penalty of 05 – 10 years' imprisonment:

a) The offence is committed by an organized group;

b) The offence is committed in a professional manner;

c) Dangerous recidivism.

d) The offence involves the abuse of the offender's position or power;

dd) The offence is committed in the name of an agency or organization;

e) Goods are traded across the border;

h) The value of counterfeit goods, according to the value of genuine goods with the same quantity, specifications or features, is assessed at from VND 150,000,000 to under VND 500,000,000;

h) The illegal profit earned is from VND 100,000,000 to under VND 500,000,000;

i) The offence causes 31% - 60% WPI for another person;

k) The property damage caused by the offence is assessed at from VND 100,000,000 to under VND 500,000,000.

3. This offence committed in any of the following circumstances carries a penalty of 10 - 15 years' imprisonment:

a) The value of counterfeit goods, according to the value of genuine goods with the same quantity, specifications or features, is assessed at ≥ VND 500,000,000;

b) The illegal profit earned is from VND 500,000,000 to under VND 1,500,000,000;

c) The property damage caused by the offence is assessed at from VND 500,000,000 to under VND 1,500,000,000;

d) The offence results in the death of a person;

dd) The offence causes ≥ 61% WPI for another person;

e) The offence causes a total WPI of 61% - 121% for more than one person.

4. This offence committed in any of the following circumstances carries a penalty of 15 - 20 years' imprisonment or life imprisonment:

a) The illegal profit earned is ≥ VND 1,500,000,000;

b) The offence results in property damage assessed at ≥ VND 1,500,000,000;

c) The offence results in the death of ≥ 02 people;

d) The offence causes a total WPI of ≥ 122% for more than one person.

5. The offender might also be liable to a fine of from VND 20,000,000 to VND 100,000,000 , be prohibited from holding certain positions or doing certain works for 01 - 05 years or have all or part of his/her property confiscated.

6. Punishments incurred by a corporate legal entity that commits any of the offences specified in this Article:

a) A corporate legal entity that commits this offence in any of the circumstances specified in Clause 1 of this Article shall be liable to a fine of from VND 1,000,000,000 to VND 3,000,000,000;

b) A corporate legal entity that commits this offence in any of the circumstances specified in Points a, b, c, e, g, h, I, k Clause 2 of this Article shall be liable to fine of from VND 3,000,000,000 to VND 6,000,000,000;

c) A corporate legal entity that commits this offence in any of the circumstances specified in Clause 3 of this Article shall be liable to fine of from VND 6,000,000,000 to VND 9,000,000,000;

d) A corporate legal entity that commits this offence in the circumstance specified in Clause 4 of this Article shall be liable to a fine of from VND 9,000,000,000 to VND 18,000,000,000 or has its operation suspended for 06 - 36 months;

dd) A corporate legal entity that commits this offence in the circumstance specified in Article 79 hereof shall be permanently shut down;

e) The violating corporate legal entity might also be liable to a fine of from VND 100,000,000 to VND 300,000,000, be banned from operating in certain fields or raising capital for 01 - 03 years." 

II. Judgments on manufacturing and trading of counterfeit food or food additives

1. Judgment on trading of counterfeit food No. 30/2022/HS-ST

- Trial level: first instance

- Judicial body: People's Court of Phu Tan district, An Giang province.

- Quote from the content: "T has been selling vegetarian food since April 2018.In order to earn more profit, in February 2021, T started to buy fish rolls from Chin Th Co., Ltd with the volume of 500g/batch for 37,000 VND/kg. After that, T brought it to a business and production facility to remove the label of Chin Thuy One Member Co., Ltd. with 04 types of labels such as: "Diem Tr Vegetarian Mushroom Sauce"; "Thanh Dam abalone mushroom rolls"; "La Van L" and "Duyen Tinh" and then sold at a higher price in the market.
With the trick as mentioned, in the period from April 2, 2021 to April 20, 2021,
T purchased 3,215 kg of fish rolls from Chin Thuy Company; to remove the label and replace it with one of the four types of labels specified:
257 kg of "La Van L" vegetarian sausage, 841 kg of "Diem Tr" vegetarian mushroom sausage, 153 kg of "Duyen Tinh" vegetarian sausage, and 102 kg of "Thanh Dam" abalone mushroom sausage remain; the remaining 1,862 kg of "T" fish sausage has been removed. label."

- Results of settlement: Sentencing defendant Phan Thi Bich T to 3 years in prison.

2. Judgment 175/2020/HS-ST dated November 24, 2020 on the crime of manufacturing and trading of counterfeit food or food additives

- Level of trial: First instance.

- Judicial body: People's Court of Binh Chanh District, Ho Chi Minh City

- Quote from the content: "Nguyen Hoai H started trading fake food products and food additives including fake MSG branded Ajinomoto, fake seasoning seasoning brand Knorr and fake washing powder brand Omo from September 2018 . Hate bought the above-mentioned counterfeit goods from a man named Hieu (whose identity and background could not be determined) and then brought them back to resell them to customers around the area of Wharf B, District H, and City H. The purpose is to enjoy the difference, specifically: For the fake monosodium glutamate brand Ajinomoto type 454g, H bought it from K at the price of 17,000 VND per pack and resold it for 20,000 VND per pack. "For Knorr fake seasoning seeds weighing 400g, H bought it from K at the price of 18,000 VND for 1 pack and sold it for 22,000 VND for 1 pack; if the price is 1800g, the price is 70,000 VND for 1 pack, and the price is 80,000 VND for 1 pack."

- Results of settlement: Sentencing defendant Le Van Th to two years and six months in prison for the crime of "manufacturing and trading in counterfeit goods, namely food and food additives."

3. Judgment 492/2019/HS-PT dated 10/07/2019 for the crime of trading of counterfeit food or food additives

- Level of trial: Appellate.

- Judicial body: Hanoi People's Court.

- Quote from the content: "Although Dao Thi L knew that the number of noodles had packaging (branding) and their weight was not according to the manufacturer's standards (origin of goods), she still bought them to sell and make a profit because the selling price was lower than the original product. On December 18, 2016, Dao Thi L sold 03 packs of 454g, 21 packs of 140g with fake Ajinomoto brand and 01 pack of 100g with Miwon brand for Hong. After searching Luong's house, they also seized 03 packages of 01kg and 01 package of 140g, all of which are fake Ajinomoto brand noodles.

- Result of settlement: fined Dao Thi L 3,000,000 VND for the crime of "trading in fake food products".

4. Judgment 160/2019/HS-ST dated December 17, 2019 on the crime of trading in counterfeit goods being food and food additives

- Level of trial: First instance.

- Judicial body: People's Court of Phu Ly city, Ha Nam province.

- Quote from the content: "Le Thi L has rented kiosk No. 66, zone A, 1st floor of Market B in Ward L, City P, Ha Nam Province to sell groceries and dry goods since 2016. During the sales process, L met a woman named Y (unknown background) who offered to sell the monosodium glutamate (MSG), broth mix packed in the packages of famous brands, but the price was lower than the authentic import price of about 4,000 VND to 6,000 VND/pack. This woman said that some people bought MSG, seasoning powder from other brands by themselves and then put them in fake empty packages with pre-printed labels of famous brands such as Knorr, Ajinomoto. Seeing the price lower than the authentic product price, L bought the fake Ajinomoto and Knorr seasoning powder packages for sale mixed with genuine MSG and seasoning powder at her stall, the price of the fake product is the same as the genuine product. At around 15:20 on May 4, 2019, while Le Thi L was selling to Ms. Pham Thi T2 06 packages of MSG with Ajinomoto word thereon, type 454g and 04 packages of seasoning powder with Knorr word thereon, type 1.8kg suspected to be fake products and was selling to Le Thi U1 01 package of seasoning powder with Knorr word thereon, type 400g and 01 package of MSG with Ajinomoto word thereon, type 454g..."

- Results of settlement: Sanction: Defendant Le Thi L was sentenced to 27 months in prison, suspended, and tried for 54 months from the date of first-instance judgment.

5. Judgment 57/2018/HS-ST dated September 12, 2018 on the crime of manufacturing and trading in counterfeit food products

- Level of trial: First instance.

- Judicial body: People's Court of Ninh Hoa town, Khanh Hoa province.

- Quote from the content: "Tran Thi Thu V for the purpose of producing fake fish sauce, trademarks of fish sauce have been registered exclusively in the market, from the end of May 2017 to the end of September 2017, engaged in the act of making fake fish sauce with brands such as "Nam Ngu De Nhi"; "Nam Ngu Super Thrifty"; "Nam Ngu 3 in 1"; "Phu Quoc is a great thrifty chef"; "Thuy Kham"; "Eight Phu" to sell for profit. The amount of fake fish sauce sold in the market by defendant V was VND 6,390,000, which was equal to the value of real fish sauce sold in the market by manufacturers: VND 20,306,500.

- Results of settlement: Sentencing defendant Tran Thi Thu V to 2 years and 6 months in prison, but given a suspended sentence for the crime of: "manufacturing and trading in counterfeit food products".

Nguyen Sang
167


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