Simon Says: Can Victims Claim Against Approved Defective Products?
This is the fortieth in a weekly series of legal advice provided in a short and entertaining story format.
每周轻松有趣法律常識故事系列 - 第40篇
Keywords: Product Defects, Consumer Rights, Damages
Can Victims Claim Against Approved Defective Products?
Helen is a lively and beautiful girl who likes to nurture her skin with cosmetics. One day when Helen was strolling down the street and passed the cosmetics shop she frequently visited, she remembered she was running short of masks, so she decided to go in for a look. “Oh, you are here again. Now we have some new products," the shopkeeper greeted her with a smile. “Nice to see you again. I just stopped in for a look," Helen said.
Soon Helen retuned home with some masks and a lighted heart. In the evening, she took out a mask she had just bought and applied it onto her face as usual. However, after half an hour, she felt her skin itching and found that her skin was swollen and itchy. Things went even worse later. Helen fainted. After diagnosing, her doctor advised her, “it was an allergy. You must be allergic to some ingredients in cosmetics. That’s why you suffered an anaphylactic shock.”
Helen was now in despair but after recovering, she managed to go to the cosmetics store with the rest of the masks. Helen told to the shopkeeper, “your mask caused me suffered so much. I won’t buy your stuff anymore! There is no warning on the package and you did not cause me any attention about the risks. I spent 5,000 Yuan for medical treatment. Now I demand you to compensate my loss!" The shopkeeper replied, "this cosmetic product is in line with national standards. You are allergic to it. That’s your problem, not our fault. Even if there is a problem with the quality of the product, you should claim your loss against the manufacturer. We are sorry about it. But we cannot compensate you for that.”
What should Helen do if such product is in line with the national standards?
Prof Simon Says:
Despite the fact that the masks Helen bought are in line with the mandatory national standards, Helen, as a consumer not dealing in the ordinary course of her business, was not informed of the safety-related risks and has suffered an anaphylactic shock after normal use of the product. Such risks of using the product are unreasonable; therefore, it shall be deemed as a “defective product”. In addition, even if the anaphylactic shock induced by the cosmetic product is related to Helen’s own special physical conditions, the manufacturer should have provided proper reminders and instructions on the package, or else the product shall be considered as “defective”. Under the China’s Product Quality Law, if Helen suffered personal and financial losses due to the defect of the product, she is entitled to claim such losses from the cosmetics shop or from the manufacturer. As a result, the cosmetics shop shall be liable for Helen’s loss.
The Law of the People's Republic of China on Product Quality
Article 46: Defects mentioned in the law are referred to the irrational dangers existing in the products that threaten the safety of person or properties or products that do not conform to the standards set by the State or the specific trade if there is any.
The Law of the People's Republic of China on the Protection of Consumer Rights and Interests
Paragraph 2 of Article 40:
A consumer or other injured party whose person or property is harmed due to a commodity defect may demand compensation from the seller or may also demand compensation from the producer. Where the responsibility lies with the producer, the seller, after settling compensation, shall have the right to recover from the producer. Where the responsibility lies with the seller, the producer, after settling compensation, shall have the right to recover such compensation from the seller.
For more about this or to contact Professor Simon Choi at:
Phone: +86 13823677853 or
About the Author: Professor Simon Choi
Prof Simon Choi, solicitor and linguist, is an international lawyer, qualified to practise law in England & Wales and in Hong Kong, China. Simon graduated from law schools of the Peking University, the University of London and the University of Hong Kong respectively, with an in-depth knowledge of Chinese laws and common laws and with more than 20 years experience in China practice and international trade, investment, finance, merger & acquisition. He is an adjunct professor of laws at the Zhongnan University of Economics and Law. Simon is the founding partner of Acme Ardent and can be reached at email@example.com, +86 13823677853, or WeChat ID: simonhkchoi
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