On January 31, 2024, Taiwan Food and Drug Administration (TFDA) released the amendment to the food advertisement provisions in Act Governing Food Safety and Sanitation, which increases the severity of penalties with immediate effect.
Background
As per the Act Governing Food Safety and Sanitation, food labeling, promotion and advertisements with false, exaggerated or misleading contents or those non-compliant with the restrictions set by the central government shall be fined between NT$40,000 and NT$4 million. Furthermore, foods that are labeled, promoted or advertised as having medical efficacy shall be fined between NT$600,000 and NT$5 million.
In addition, there are four weighted factors that are taken into account to determine the final amount of the fine. They are: (A) Cases of violation (for each violation the fine will be progressive increased), (B) intentionality of the violation, (C) degree of harm caused, and (D) other discretionary factors.
According to the data from TFDA, the total number of cases involving non-compliant food advertisements in 2023 reached 7,472, with a total fine amount of NT$291.39 million, marking a record high in the past three years. Furthermore, the total airtime of non-compliant food advertisements has seen a gradual increase. Coupled with the influence of endorsers, this trend has made it easier for the public to fall into erroneous judgments. Therefore, TFDA makes revisions to deter non-compliant food advertisements.
Major Revisions
TFDA incorporates the cases of advertising violations into the weighted penalty system. It clarifies one of the weighted factors, (C) degree of harm caused, defining the following cases of advertising violations:
Airing on nationwide television channels or shopping channels for more than sixty seconds (weighting coefficient: C1=1).
Seeking endorsements or recommendations from experts (organizations) or well-known public figures; or content that includes before-and-after product comparison images, illustrations of human organ tissues, or false scientific data (weighting coefficient: C2=1).
Previous, when "likely to cause public misperception" had a weight of C=1 and "definitely causes public misperception" had a weight of C=2, the maximum weight for C was 2. However, currently, the weighted multiplier of (C) equals the sum of 1, C1 and C2, which means the maximum of multiplier C is changed from 2 to 3.
In addition, the weighted multiplier of (B) other discretionary factors is revised from “allowed to be greater than 1 or less than 1" to "must not be less than 1".
Revised Weighted Penalty Model
Calculation method for penalty amount: A×B×C×D | (A) Cases of violation | |||||
First | Second | Third | Fourth | Fifth | ||
(A) | False, exaggerated or misleading contents | NT$40,000 | NT$80,000 | NT$200,000 | NT$400,000 | NT$1 million |
Medical efficacy | NT$600,000 | NT$700,000 | NT$800,000 | NT$1 million | NT$1.25 million | |
(B) intentionality of the violation | Negligence B=1 | Intention B=2 | Intention B=2 | Intention B=2 | Intention B=2 | |
(C) degree of harm caused * C=1+ C1 + C2 | The maximum of C=3 | The maximum of C=3 | The maximum of C=3 | The maximum of C=3 | The maximum of C=3 | |
(D) other discretionary factors *Must not be less than 1 | D=1 | D=1 | D=1 | D=1 | D=1 | |
Total penalty amount | False, exaggerated or misleading contents | NT$120,000 | NT$480,000 | NT$1.2 million | NT$2.4 million | NT$4 million |
Medical efficacy | NT$1.8 million | NT$4.2 million | NT$5 million | NT$5 million | NT$5 million | |
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