No disposition was made in the case of Tung Shun Hsing Trading Co., Ltd. was complained for employing false advertisements to sell Sapporo beer

Case:

No disposition was made in the case of Tung Shun Hsing Trading Co., Ltd. was complained for employing false advertisements to sell Sapporo beer

Key Words:

Japan, beer, No. 1, the best, false advertisement

Reference:

Fair Trade Commission Decision of June 24, 2004 (the 659th Commissioners' Meeting)

Industry:

Beer Manufacturing (0882)

Relevant Laws:

Article 21 of the Fair Trade Law

1. Tung Shun Hsing Trading Co., Ltd. (hereinafter called "Tung Shun Hsing"), the local importer and the principal of advertisement of Sapporo Beer, was accused of broadcasting Sapporo Beer advertisement on the Formosa TV, June 10, 2003, with the phrasings of "The Best Beer in Japan" and "No. 1 Fresh in Japan" in the advertisement. Although "The Best Beer in Japanese area" was an exaggerating or modifying term for recommendation, yet due to that the word "Japan" was added, it could easily cause mistaken recognition to the public and might be misleading. In addition, the phrasing "No. 1 fresh in Japan" had been exaggerating or unsupportive of facts and could easily cause mistaken recognition to the general consuming public, and furthermore into making wrong decisions in violation of Article 21 of the Fair Trade Law (FTL).
2. As for the part "The Best Beer in Japan":
   1. "The best" and "the finest" are terms used to express a subjective feeling, and, as an "exaggerating" or "bragging" method employed by a principal of advertisement, to draw potential customers' interest. It is a commonly seen promotional means in the markets, and shall be insufficient to cause confusions to the consumers. Basically, it is not necessarily an unlawful false advertisement. It was found that the phrasing "[t]he Best Beer in Japan; the Only Beer Brewed in Taiwan" was present on the same screen with identical size and color. It was not what the complainant had alleged that the advertisement broadcasted "Sapporo Beer as the best in Japan area or No. 1 brand." In addition, based on the information of the International Business Department of Japan Kirin Brewery Co., Ltd. and the sales amount data (2002) of Japan Morgan Stanley Company provided by the complainant, it showed that Sapporo beer ranked No. 3 in Japanese beer market. Leaving aside the accuracy of the data, Sapporo Beer is one of the three biggest brands in Japan, which was undisputed by both parties.
   2. According to Taiwan Tobacco and Liquor Corp., it accepted only the franchising of Japan Sapporo Beer Company so far to brew Sapporo Beer. Moreover, based on the Department of National Treasury, Ministry of Finance, since the new system for tobacco and wine was implemented, the Department only granted its approval to Japan Sapporo Beer Company, who authorized Tung Shun Hsing to franchise Taiwan Tobacco and Liquor Corp. to brew beer in November 2002, and no other applications for franchising by Japanese beer enterprises had been received. The aforementioned evidence concluded that Japan Sapporo Beer Company was surely the only Japanese beer enterprise that had franchised the brewing of its beer in Taiwan. Therefore, it is difficult to determine that Tung Shun Hsing had published false advertisements in violation of the FTL.
   3. Furthermore, it was found that Tung Shun Hsing did not claim the product to be originally imported from or brewed in Japan in the advertisement in question. In addition, the appearance of the products imported from Japan and that of the products brewed in Taiwan had distinctive representations and symbols. The investigation showed that on the fonts of 600 cc bottled Sapporo Beer and 354 cc canned beer, they were labeled "Sapporo Beer" while the back or side showed "Manufacturer: Wu Jih beer factory" and "Authorization: Japan Sapporo Breweries Limited." As for 1,000 cc and 350 cc canned Sapporo Beer, the fonts of the can showed "Japan Sapporo Beer" with the word "Draft" in obviously red color. On the side, it showed "Manufacturer: Japan Sapporo Breweries Limited" and "Originally imported from Japan." It was found that the advertised Sapporo Beer was bottled and canned beer. Neither "Draft" in red color nor the phrase "Japan Sapporo Beer" were found on the can. In light of the overall impression given by the promoting advertisement, consumers shall be able to verify the differences and not to be misled by paying regular attention, and the origin of the merchandise shall not cause any mistaken recognition. The matters in question did not violate Article 21 of the FTL.
3. As for the part of "Japan No. 1 Fresh":
   The complainant claimed that the advertisement showed the phrase "No. 1 Fresh in Japan" which contained the meaning that it was the No. 1 fresh beer of the imported Japanese brands. For this part, Tung Shun Hsing had presented evidence to prove that the merchandise could be sold on shelves within 7 days after the order, while other beers imported from Japan required one month. It could avoid the uncertainty whether the beer was surely preserved under low temperature during the transportation, and therefore, the freshness shall naturally be superior to other Japanese imported beers. It was proved upon the investigation that Japan Sapporo Beer Company was the only Japanese beer enterprise that had franchised the brewing of beer in Taiwan, and the advertisement did not use "Japanese imported brand" as the content; in addition, compared with the beers imported from Japan, it requires less time for the beers to be brewed and up for sale in Taiwan, which can be proved by the order sheets, delivery sheets, delivery schedules and information regarding beers originally imported from Japan. From the overall observation of the advertisement in this case, it was not improper to claim "No. 1 Fresh in Japan," and no false and misleading statements were made by Tung Shun Hsing Company.
4. Based on the available evidence, no violation of Article 21 of the FTL by Tung Shun Hsing Company was found. However, to maintain the trading order and the rights and interests of the consumers, Tung Shun Hsing was requested to use words similar to "No. 1" with more caution or explanations sufficient clear to avoid disputes.

Appendix:
Tung Shun Hsing Trading Co., Ltd.'s Uniform Invoice Number: 89316684

Summarized by Yang, Shu-Jhen; Supervised by Wu, Ting-Hung