- Dear Dr., the case of nearly 100,000 Make Sense hairspray products being seized by the Market Management Department due to lack of invoices and documents, along with the affirmation from the Drug Administration of Vietnam that the product does not have a declaration dossier. How do you assess the legal responsibility of e-commerce platforms (ECs) when still allowing the sale of this product?
Dr. Tran Mai Hien: We need to clarify a basic principle of commerce: Any product that is a finished product must be accompanied by the dossier of the manufacturer of that product.
Even when there is a complete dossier of the manufacturer, the product is still only at the level of "finished goods stored" belonging to the production stage, completely not allowed to become goods circulating on the market. For a product from the production warehouse to enter the market in the form of goods traded, promoted, and circulated publicly, that product is required to fully meet the regulations on market control, competition law and regulations on protection of consumer rights.
For the case of Make Sense products on e-commerce platforms, it can be seen that there is a situation of loosening input censorship: Cosmetics are conditional business items. Allowing this product to be listed, even put into genuine booths (TikTok Mall), proves that the document censorship process of the platform has been invalidated or ignored. E-commerce platforms, in their role as intermediary digital platform service providers, have violated the obligation to check conditional business goods information as prescribed in the Law on E-commerce and the Law on Protection of Consumer Rights.
Delay in handling when violations are detected: Even when functional agencies have seized goods and the Drug Administration of Vietnam has sent documents requesting review, the fact that booths are still continuously livestreaming and finalizing applications for nearly 200,000 products shows delay and evasion of the obligation to remove violating information.
- Many KOC/KOLs are still continuously livestreaming, closing orders for tens of thousands of products despite violation information. What is the responsibility of these marketing individuals and organizations regulated, Doctor?
- Any organization or individual when participating in acts related to goods (from marketing, advertising, livestreaming, finalizing applications to distribution) that collect money at any stage - whether in the form of affiliate marketing commissions, livestream remuneration or sales revenue - must issue invoices for selling those goods and services according to regulations.
When transactions of collecting money and issuing commercial invoices arise, they immediately become a subject in the supply chain. Therefore, KOC/KOLs are required to fully comply with the laws on: Circulation, promotion, transaction of goods and services; Law on healthy competition; Law on Protection of consumer rights.
Many KOCs today mistakenly believe that they are just "speaking for hire" or "sharing experiences" so they are not responsible for product quality. This is a completely wrong perception.
According to the Law on Protection of Consumer Rights and the new Law on E-commerce, "influencers" (KOLs/KOCs) when advertising and introducing products that have not been licensed for circulation are acts of providing false and misleading information about products. Their collection of commissions on orders without invoices and documents also entails the risk of tax and invoice and document law violations. These KOCs/KOLs can completely be administratively sanctioned, tax arrears and be jointly liable for compensation for damage to consumer health.
- What lessons can be learned from this case, sir?
- We need to look at this case from the perspective of the strictness of specialized management law and an equal competitive environment.
Firstly, for items on the list of conditional business such as cosmetics, food... The law stipulates that it is mandatory to have a test certificate/product declaration before participating in the market, right from the product introduction stage. All organizations and individuals carrying out acts related to the consumption of these items must be responsible for prior inspection of documents and records, ensuring completeness and legality. They must bear full legal responsibility for all their actions and words (public statements, quality commitments) regarding products in the field of conditional production and business.
Second, from the perspective of the 2018 Competition Law: The act of bringing floating, unlicensed, and tax-evading products into the market through e-commerce channels creates serious unfair competition, including signs of deceiving consumers. Labeling "Genuine/Mall" for products that do not meet circulation conditions is an act of providing false information, violating Article 45 of the Competition Law.
