Jia City Health Bureau personnel inspect the Internet for illegal sales and advertising of e-cigarettes. (Photo by reporter Wang Shanyan)
In order to eliminate the dangers of emerging tobacco products such as e-cigarettes and heated cigarettes, the National Health Service of the Ministry of Health and Welfare has strengthened monitoring of illegal sales and advertising on social and e-commerce platforms in the past three years. Although online operators such as IG, Shopee, open-air markets, and revolving auctions are not actual sellers, they have been fined by local governments ranging from 400,000 to more than one million yuan for illegal product advertisements on their platforms and failure to immediately block or remove pages. Business operators have successively claimed self-relief on the grounds that laws and regulations do not prohibit "acceptance of publication", the definition of advertising or media industry operators is unclear, and it infringes on freedom of speech on the Internet. They have sued local governments and continued to litigate. How to implement Internet management under the Tobacco Harm Prevention Law has become a new wave of law enforcement challenges.
After the amendments to the Tobacco Harm Prevention Law came into effect on March 22, 2023, the National Health Administration strengthened online monitoring and assigned counties and municipalities to conduct inspections. In addition to investigating and punishing sellers who sell electronic cigarettes and other cigarette products and related combination components, communities and e-commerce platforms that advertise illegal products have also become targets of penalties.
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From 2023 to 2024, sellers on the open-air market platform were caught selling "suscus", "e-juice" and other products, and were successively fined by the Chiayi County and City Health Bureau. Among them, 4 member accounts were seized in Chiayi City and a total fine of 1.6 million yuan was issued. Open-air claims that some products were removed from the shelves before the new law came into force, and the platform has preventive mechanisms such as keyword blocking. However, the names of illegal products may not be included in the keywords provided by the competent authorities. If the platform is required to have zero detection, it will not only increase management costs, but also may infringe on users' freedom of speech. It is also questioned that the Tobacco Harm Prevention Law does not define what constitutes an "advertising industry or media media operator" and the enforcement standards are unclear.
The Kaohsiung High Administrative Court held that the platform charges transaction service fees to sellers and has more than 1 billion page views per month. The listing of the products has already had an advertising effect. Even if the products are removed from the shelves, the platform is still at fault for not removing the advertising page simultaneously. The operator has profits from operating the platform and should have invested considerable cost management. The Chiayi County case was rejected in the second instance, while the Chiayi City case lost the first instance and will enter the second instance.
In a similar case, the "Spin Auction" was fined NT$400,000 by the Taichung City Health Bureau in February 2024 because the seller listed "RELX First Generation, Atomizer Replacement Rods" and other e-cigarette products. The spin auction claimed that keyword interception and manual inspection had been set up, but the court held that the platform originally used "string containing keywords" to intercept, but later changed it to "identical" keywords in order to reduce mis-blocking and manual review costs. As a result, "RELX Generation" was successfully put on the shelves, and the court found that the platform did not take "technically expected reasonable management measures" and lost the case.
In addition, in December 2023, the open-air market platform was seized by the New Taipei City Government and the seller was fined NT$400,000 for listing "IQOS", "ILUMA" and other heated cigarette-related products. TianTai argued that it only provided a trading platform and that the products involved were only protective covers, not heating cigarettes or necessary components. However, the Taipei High Administrative Court held that the platform has the ability to monitor and remove products from shelves, and the relevant keywords have long been included in the National Health Administration's list of illegal products. It was difficult to recognize that it had fulfilled its duty of care and ruled that TianTai lost the case.
The legal community believes that it can be seen from the relevant judgments that the judge favors that e-commerce platforms do not have to be exempted from liability because they are not sellers. As long as they have advertising effects and monitoring and removal capabilities, they have reasonable management obligations. The degree of prior monitoring responsibility that the platform should bear will also become an important focus of attack and defense in the online law enforcement of emerging tobacco products.
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