В ревизираните „Електронни регламенти за управление на цигарите“, издадени от държавната администрация на тютюневия монопол на Китай на 11 август 2024 г., е добавена нова разпоредба, параграф 2 на член 16 logistics service providers but also directly affects the interests of both domestic and international customers. It also reflects the determination of China's e-cigarette regulatory authorities on ensuring compliance in the e-cigarette industry. This article will provide a detailed interpretation of the legislative background, purpose, and impact of this provision on the industry.
1. фон и цел на разпоредбата
The introduction of Paragraph 2 of Article 16 in the "Electronic Cigarette Logistics Management Regulations" primarily targets the compliance risks faced by the domestic e-cigarette industry in international markets, especially in the United States. In recent years, the U.S. Food and Drug Administration (FDA) has taken strict regulatory measures against several Chinese e-cigarette Марките, включително издаване на предупредителни букви и поставяне на продукти на сигнала за импортиране . Една от основните причини за тези действия е, че китайските компании за електронна цигара са игнорирали U . s . Наредби и продължават да не внос на продуктите на електронната цигара в U U {.}}. The FDA's regulatory measures have made it impossible for these products to pass through the regular customs clearance process into the U.S.. In response to this predicament, some domestic e-cigarette companies have taken corresponding measures to evade regulation, the most common of which is requiring e-cigarette logistics service providers to offer "Double Customs Clearance with Full Compensation" Услуги . Това означава, че логистичните компании поемат отговорност за митническите разрешения както в Китай, така и в U . S . и компенсират пълната стойност на стоките, ако те са иззети или конфискувани от митнически operation. It not only shifts the business risks of e-cigarette companies to logistics companies but also repeatedly challenges overseas regulatory policies, which could potentially trigger more severe measures. For instance, on October 13, 2023, R.J. Reynolds Tobacco Company and R.J. Reynolds Vapor Company filed a "Section 337 investigation" with the U.S. International Trade Commission (ITC), accusing several Chinese brands of engaging in unfair competition and unfair practices under Section 337 of the U.S. Tariff Act of 1930 in their import trade, and requesting the ITC to issue a general exclusion order and a permanent injunction to restrict all Chinese disposable e-cigarettes from entering the U.S. market.
In this context, the State Tobacco Monopoly Administration carefully considered this new provision. The main objectives of its formulation are reflected in two aspects: First, regulatory authorities aim to encourage e-cigarette companies to develop a stronger sense of compliance. Facing increasingly stringent international regulatory environments, particularly the legal requirements of major markets like the U.S., e-cigarette companies need to abandon the mindset of relying on luck, actively respond to compliance challenges, and fundamentally improve the compliance and competitiveness of the e-cigarette industry. Second, by clearly prohibiting regulatory evasion behaviors, domestic regulatory authorities are signaling to the international community China's determination to regulate Елект г. e-cigarette products is issued by international organizations and overseas government agencies due to any quality or safety problem, the enterprise shall immediately report to the local Tobacco Monopoly Administration, and the relevant enterprise shall accept the verification and disposition organized by the Tobacco Monopoly Administration in accordance with the law". These two regulations together form a regulatory framework that encourages proactive compliance and timely correction, further Насърчаване на добре регулираното развитие на индустрията за електронна цигара .
2. възможната недействителност на клаузите „Двойно митническо освобождаване с пълна компенсация“
The implementation of Paragraph 2 of Article 16 of the "Electronic Cigarette Logistics Management Regulations" may influence how courts handle contractual disputes between logistics companies and e-cigarette enterprises, especially regarding the validity of contractual clauses that involve regulatory evasion. Similar to the handling of "Shadow Margin Financing" in the securities market, where the China Securities Regulatory Commission (CSRC) initially issued documents such as the "Notice on Strengthening the Administration of External Access of Information Systems of Securities Companies" (No. 35 [2015], CSRC) and the "Opinions on an Overhaul regarding Illegal Securities Business Activities " (No. 19 [2015], CSRC), explicitly requiring the cleanup and rectification of shadow margin financing activities, the Supreme People's Court ultimately determined in its 2019 "Notice by the Supreme People's Court on Issuing the Minutes of the National Court Work Conference for Civil and Commercial Trials 2019 " (2019 Ninth Conference Minutes) that shadow margin financing contracts are invalid due to evasion of financial regulations. As a result, courts no longer support claims from capital providers or financing parties based on such contracts. A similar logic may also be applied in the Индустрията на електронната цигара .
Specifically, the implementation of Paragraph 2 of Article 16 may lead courts to elevate the nature of "Double Customs Clearance with Full Compensation" clauses from merely evading industry regulation to offending public order and good morals, thereby rendering these clauses invalid. According to Article 153, Paragraph 2, of the Civil Code,a civil juristic act that offends the public order and good morals is invalid. If contracts between e-cigarette companies and logistics companies contain "Double Customs Clearance with Full Compensation" or other forms of regulatory evasion clauses, courts may, in future disputes, determine that these clauses are invalid based on their potential to disrupt market order and offend public order and good morals, thereby depriving e-cigarette companies of the right to claim compensation from logistics companies based on these Невалидни клаузи .
3. Обързване на ситуацията: Защита на добрата валута и премахването на лошата валута
Paragraph 2 of Article 16 will undoubtedly push China's e-cigarette industry to develop toward a more regulated direction and is expected to reverse the current situation where "bad currency drives out good currency" in the e-cigarette market. Take RELX as an example: the company almost exited the U.S. market to comply with regulations, while non-compliant brands that circumvent regulations have thrived in the U.S. market, creating an unfair market environment for compliant companies. After the implementation of Paragraph 2 of Article 16, companies that have consistently adhered to compliance and focused on product quality will have more opportunities for development, while those relying on illegal practices may face elimination, thereby promoting the survival of the fittest in the industry. Moreover, by actively regulating e-cigarette export behavior, it will help improve domestic trade relations with major importing countries, reduce trade friction, and create a more favorable international environment for the e-cigarette industry. This is not only beneficial to the e-cigarette industry itself but will also set a good example for other export-oriented industries.
In conclusion, the establishment of Paragraph 2 of Article 16 of the "Electronic Cigarette Logistics Management Regulations" reflects the regulatory authorities' determination to ensure the industry's compliance and promote its international development. It is worth noting that although the compliance process may seem complex, it is not an insurmountable challenge. For example, in the U . S ., след като компаниите за електронни цигари изпращат заявление за тютюн преди пазара (PMTA), FDA провежда официален преглед и присвоява STN (номер за проследяване на подаване), използвайки . Свързани E-Cigarette продукти, след това може да въведе U. STN. Therefore, although compliance requirements are stringent, e-cigarette companies can fully comply with market entry requirements through proper application and review processes. While this may cause some short-term difficulties, it will ultimately benefit the healthy and sustainable development of China's e-cigarette industry, boosting the competitiveness and reputation of Chinese e-cigarette products in the international market. In response to this new regulation on e-cigarette logistics management, e-cigarette companies should actively adjust their business strategies and proactively adapt to compliance requirements, as "Double Customs Clearance with Full Compensation" has already been negated by the regulations, the path of non-compliance will become increasingly difficult.