Lawyer: Ruyan Tobacco's “Reminder Emails” Suspected of Exaggeration and Misleading Claims, Potential

According to Zheng Mingwei, a partner at Beijing Zhongyin (Shenzhen) Law Firm and director of the company's comprehensive business committee, the emails sent by Ruyan Tobacco are suspected of exaggeration and misleading claims, which may constitute unfair competition.

Previously, it was reported that Ruyan Marketing Services, a marketing service company under British American Tobacco (BAT), sent emails titled “FDA Enforcement Notice Against Retailers Selling Elf Bar and Esco Bars E-Cigarettes” to distributors and wholesalers. In response to this incident, we consulted Zheng Mingwei, who believes that Ruyan Tobacco's emails may constitute unfair competition due to exaggeration and misleading behavior. 

Possible Unfair Competition Intent 

Reviewing the “reminder email” incident, Ruyan Tobacco listed several Chinese e-cigarette brands in the email, including ELFBAR, EBDesign, kangertech, Lava, Cali, Bang, Esco Bars, Innokin, PUFF Max, Hyde, puff Bar, and Breeze. Ruyan Tobacco cited a previous FDA announcement stating that these products are all disposable e-cigarettes that have not passed the PMTA (Pre-Market Tobacco Application). 

Lawyer Zheng Mingwei pointed out that Ruyan's “reminder email” has sparked controversy, mainly regarding its competitive relationship with rivals ELFBAR and EB Design. After fact-checking the incident, Zheng Mingwei believes that the title of Ruyan's email is overly broad (the warning letter is only for specific products, not the entire brand, while Ruyan's title exaggerates it to “Notice of FDA Enforcement Against Retailers for Selling Elf Bar and Esco Bars E-Cigarettes”), exaggerating the range of products warned against for competitors ELFBAR and EB Design. Ruyan Tobacco has the potential to mislead readers and may achieve unfair competition objectives through exaggeration and misleading tactics. 

He emphasized that while Ruyan Tobacco points out that brands like ELFBAR and EB Design have not obtained licenses, it simultaneously promotes its own products (Vuse Alto) that also lack licenses, which may “imply” that its products are legal and have passed PMTA review, misleading wholesalers, retailers, and consumers, potentially indicating an unfair competition intent. 

However, he also noted that other statements in the email are direct quotes from FDA official press releases, with no inaccuracies found. 

In summary, Zheng Mingwei believes that while Ruyan Tobacco's email content exhibits exaggeration and misleading unfair competition behavior, the overall circumstances are not particularly severe. If they do not correct their actions after receiving a warning letter, malicious intent becomes more apparent. 

Damaging Competitors' Commercial Reputation 

Zheng Mingwei also discussed the legal implications of the “reminder email” incident—this matter involves federal-level unfair competition laws in the United States and state-level laws. Zheng Mingwei pointed out that Ruyan Tobacco's actions may constitute false advertising under the Lanham Act Section 43(a), which prohibits the use of false or misleading statements in advertising.

He emphasized that most unfair competition laws are at the state level in the United States, and in this incident, Ruyan Tobacco's actions may constitute trade libel (analogous to Article 11 of China's Anti-Unfair Competition Law). According to U.S. jurisdiction, the defendant's residence or the location with minimum contact with the defendant's actions applies.

Regarding Chinese law, Ruyan Tobacco may involve Article 8 of the Anti-Unfair Competition Law and Article 17 of the Interpretation of the Anti-Unfair Competition Law: misleading commercial promotion, as well as Article 11: operators shall not fabricate or disseminate false or misleading information that damages competitors' commercial reputation or product reputation.

Zheng Mingwei stated that according to Article 27 of the Interpretation of the Anti-Unfair Competition Law, if the alleged unfair competition occurs outside the territory of the People's Republic of China but the infringement results occur within the territory of the People's Republic of China, the people's court shall support the party's claim for jurisdiction based on the place where the infringement result occurs. #p#分页标题#e#

However, whether jurisdiction can be obtained domestically is highly controversial. Some opinions believe that based on the “two conveniences” principle (convenient for parties to litigate, convenient for the people's court to exercise judicial power independently, fairly, and efficiently), Ruyan Tobacco's actions in this case may be recognized as having occurred within the territory of China, thus allowing jurisdiction by Chinese courts.