Fair Trade Commission Disposal Directions (Guidelines) on Handling Cases Governed by Article 21 of the Fair Trade Act (2022-08-17 Amended)

Fair Trade Commission Disposal Directions (Guidelines) on Handling Cases Governed by Article 21 of the Fair Trade Act

Attachment: Table 1 Case Types Administered by Competent Authorities

                      Table 2 Examples of Types of False or Misleading Representation or Symbol Cases

Passed by the 151st Commissioners' Meeting on August 31, 1994
Amended by the 269th Commissioners' Meeting on December 24, 1996
Points 22 and 23 amended, and Point 26 deleted by the 311th Commissioners' Meeting on October 15, 1997
Points 6 and 16 amended by the 387th Commissioners' Meeting on April 6, 1999
Points 16 and 21 amended by the 417th Commissioners' Meeting on November 3, 1999
Amended by the 568th Commissioners' Meeting on September 26, 2002
Promulgated by Order (91) Kung San Tzu No. 0910010812 on November 5, 2002
Amended by the 688th Commissioners' Meeting on January 13, 2005
Promulgated by Order (94) Kung Fa Tzu No. 0940001278 on February 24, 2005
Points 13 and 23 amended and promulgated by Order (94) Kung Fa Tzu No. 0940006949 on August 26, 2005
Amended by the 836th Commissioners' Meeting on November 15, 2007
Promulgated by Order Kung San Tzu No. 0960010188 on November 30, 2007
Amended by the 940th Commissioners' Meeting on November 19, 2009
Promulgated by Order Kung San Tzu No. 0980010463 on November 19, 2009
Amended by the 954th Commissioners' Meeting on February 10, 2010
Promulgated Order (99) Kung San Tzu No. 0990001296 on February 25, 2010
Amended by the 986th Commissioners' Meeting on September 29, 2010
Promulgated Order (99) Kung San Tzu No. 0990007339 on October 13, 2010
Points 1, 20, 22 and Table 1 of point 15 amended by the 1057th Commissioners' Meeting on February 8, 2012
Promulgated by Order Kung Jing Tzu No. 1011460190 on March 3, 2012
Amended by the 1153rd Commissioners' Meeting on December 11, 2013
Promulgated by Order Kung Jing Tzu No. 10214618371 on December 23, 2013
Points 2, 18 and 20 amended by the 1217th Commissioners' Meeting on March 4, 2015
Promulgated by Order Kung Jing Tzu No. 10414601834 on March 12, 2015
Amended by the 1304th Commissioners' Meeting on November 2, 2016
Promulgated by Order Kung Jing Tzu No. 10514613231 on November 14, 2016
Promulgated by Order Kung Jing Tzu No. 110146091 on May 5, 2021
Promulgated by Order Kung Fa Tzu No. 11115603652 on August 17, 2022

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1.    The Fair Trade Commission ("the Commission") has adopted these Guidelines for purposes of ensuring fair competition among enterprises, protecting the rights and interests of consumers, effectively enforcing Article 21 of the Fair Trade Act ("the Act"), and prohibiting enterprises from making or using false or misleading representations or symbols on goods (or in connection with services), in advertisements, or by any other means of making known to the public.
2.    The term "other related matters which have a soliciting effect" used in Paragraph 2, Article 21 of the Act means any subject matter of trade having economic value and other trade-related matters that are not directly related to the subject matter of trade but having an impact on trade decisions, including an enterprise's identity, qualification, business condition, relationship to other enterprises, non-profit organizations, or government agencies, gifts or prizes attached to such trade by the enterprise, and probabilities or the nature of prizes and awards (including goods and services) won by chance; comparison in product and service to other enterprises.
3.    The term "other means of making known to the public" set out in Article 21 of the Act refers to any act of disseminating information via online or physical channels that may directly or indirectly allow the specific groups, or non-specific, general public, or the relevant public to collectively see or hear of it. Examples of "other means of making known to the public" include the following: group chats on social media platforms or messaging apps; products and/or services related seminars/presentations; provision of information by an enterprise for publication by the media in the form of reportage verbal promotion and introduction of goods and/or services by on-site salespeople and the like whereby information is disseminated to the public.
4.    The term "representation or symbol" used in Article 21 of the Act refers to an act sufficient to express or disseminate information or ideas having commercial value by means of written or spoken language, sound, graphics, marks, numbers, images, colors, shapes, actions, objects, or other means.
5.    The word "false" used in Article 21 of the Act refers to a representation or symbol that is inconsistent with the previously stated facts, where the discrepancy is deemed unacceptable to the general public or the relevant public, and sufficient to cause concern about misunderstanding or erroneous decisions.
6.    The word "misleading" used in Article 21 of the Act refers to a representation or symbol, whether or not consistent with the previously stated facts sufficient to cause concerns about misunderstanding or erroneous decisions of the general or the relevant public.
7.    The factors to be considered in determining whether a representation or symbol is false or misleading are as follows:
(1) The determination of whether a representation or symbol is false or misleading shall be based on the basis of the general public exercising an ordinary degree of care.
(2) Where the content of a representation or symbol is manifested by comparison or especially distinctive means, and where the major part that is especially distinctive could easily form the primary factor contributing to a consumer's transaction decision, the especially distinctive major part may be observed independently in making the determination.
(3) Where a representation or symbol, observed in isolation, is factual, but the overall impression and effect it delivers, when observed in combination, is sufficient to cause concern about misunderstanding or erroneous decisions by counterparts involved in a relevant transaction, it shall be deemed misleading.
(4) The representation or symbol with respect to the content of critical transaction information is disproportionally arranged in its layout, position, and font size, as to cause concern on the misunderstanding or erroneous decisions by counterparts in a relevant transaction.
(5) The representation or symbol with respect to the conditions of burden or limitation does not fully disclose such conditions as to cause concern on the misunderstanding or erroneous decisions by counterparts in a relevant transaction.
(6) A representation or symbol objectively having multiple reasonable interpretations shall not be deemed false as long as one of the meanings is true. However, this shall not apply when the intent to mislead is plainly obvious.
(7) The degree of discrepancy between the representation or symbol and the actual conditions.
(8) Whether the content of the representation or symbol is sufficient to affect the trading counterparts possessing ordinary knowledge and experience to make reasonable judgment and trading decisions.
(9) Effect on the economic interests of competing enterprises and trading counterparts. Opinions from relevant government authorities or impartial and objective professional bodies could be considered when determining the degree of discrepancy between the representation or symbol and the actual conditions.
8.    A complaint shall be made in written or electronic form by a complainant specifying the details of the complaint and providing his or her full name and address. Where an oral complaint is made, the Commission shall make a written record of the complaint and, after reciting it to or having it read by the complainant to verify the accuracy of the content, shall annotate the year, month, and day, and then have the complainant sign or chop it.
An authorization letter is required when the complainant asks someone to file the complaint on behalf of him/her.
Following the complaint, the Commission may request the complainant to amend or make a new complaint in the case where the Commission is unable to obtain critical evidence including the relevant goods, packages and advertising, or to comprehend the specific details of the complaint and the content after its preliminary review.
9.    The Commission and other competent authorities allocate cases with regard to Article 21 of this Act in accordance with the principle of special law prevails over general law.
According to the allocation of responsibilities mentioned in the previous paragraph, the case types administered by competent authorities are as Table 1.
10.    As for the examples that representation or symbol is "false or misleading", please refer to Table 2.

[Source:  The Fair Trade Commission (FTC) ]