Perspective | An In-depth Analysis of "Mis-selling of Traditional Chinese Medicine Leading to Death" from a Legal Perspective

At the end of November 2024, an elderly man in Zhaoqing City went to a local shop to buy traditional Chinese medicine "Haifengteng" for making soup. However, after drinking the soup on December 10, the elderly man suddenly experienced chest pain and fainting symptoms, and was subsequently rushed to the hospital, where he was diagnosed with "Chuanxinlian poisoning" and unfortunately passed away. According to the elderly man's family, he was usually in good health, only occasionally experiencing back pain, and this poisoning incident undoubtedly dealt a huge blow to the family.

It is worth noting that this is not the first time the shop has had issues with the mis-selling of traditional Chinese medicine. Previously, a couple was poisoned after purchasing the same medicine, and they were only saved after gastric lavage, vomiting, and being transferred to a critical care unit in Guangzhou. This series of events has led to strong doubts and dissatisfaction from the elderly man's family and the public regarding the shop owner's actions.

From a legal perspective, if the shop owner indeed mistakenly sold "Chuanxinlian" as "Haifengteng", there is a clear fault in the sales process. According to the relevant provisions of the Tort Liability section of the Civil Code of the People's Republic of China, if a product has defects due to the seller's fault and causes harm to others, the seller shall bear tort liability. In this incident, the shop owner failed to accurately identify the medicinal materials, resulting in the consumer mistakenly consuming a toxic substance, which severely infringed upon the consumer's right to life and health.

In addition, after discovering the previous couple's poisoning, the shop owner did not promptly disclose the information, leading to the elderly man continuing to consume the toxic substance, which further aggravated the damage. This inaction violates the obligation to ensure consumer safety to some extent and should bear more serious legal responsibility.

1. Causing Death by Negligence

From the legal provisions, the crime of causing death by negligence requires the perpetrator to have subjective negligence or overconfidence. In this case, as a seller of traditional Chinese medicine, the shop owner should possess certain professional knowledge and a duty of care to ensure the accuracy and safety of the sold medicinal materials. If he failed to accurately distinguish between "Haifengteng" and "Chuanxinlian" and, due to negligence, sold the toxic "Chuanxinlian" as the non-toxic "Haifengteng", leading to the elderly man's poisoning and death, his actions meet the elements of the crime of causing death by negligence.

According to Article 233 of the Criminal Law of the People's Republic of China: "Whoever causes death by negligence shall be sentenced to fixed-term imprisonment of more than three years but less than seven years; if the circumstances are relatively light, he shall be sentenced to fixed-term imprisonment of less than three years; if there are other provisions in this law, they shall be implemented according to those provisions." Therefore, the shop owner may face criminal liability.

2. Selling Toxic and Harmful Food

This crime is more severely regulated in the criminal law, aimed at combating the intentional sale of known toxic and harmful food that endangers public health. If investigations reveal that the shop owner knowingly sold the potentially toxic "Chuanxinlian" as edible "Haifengteng", and he had subjective intent, he may constitute the crime of selling toxic and harmful food.

According to Article 144 of the Criminal Law: "Whoever mixes toxic or harmful non-food raw materials into food during production or sale, or sells food that he knows contains toxic or harmful non-food raw materials, shall be sentenced to fixed-term imprisonment of less than five years and shall also be fined; if it causes serious harm to human health or has other serious circumstances, he shall be sentenced to fixed-term imprisonment of five to ten years and shall also be fined; if it causes death or has other particularly serious circumstances, he shall be punished according to the provisions of Article 141 of this law." If the shop owner's actions constitute this crime, he will face more severe criminal penalties.

Market regulatory authorities have important supervisory responsibilities in this incident. According to relevant administrative regulations, such as the Drug Administration Law of the People's Republic of China and the Administrative Penalty Procedures for Market Supervision, market regulatory authorities have the right to conduct a comprehensive investigation of the involved shop.

If it is found that the shop owner engaged in illegal activities during the sale of traditional Chinese medicine, such as non-standard procurement channels or failing to conduct strict inspections of the medicinal materials, administrative penalties may be imposed according to law. Penalty measures may include fines to punish the illegal behavior; revocation of the business license, depriving him of the qualification to continue engaging in related business activities, thus preventing further harm to the public; in addition, he may also be ordered to rectify within a specified time, requiring him to establish and improve the quality management system to ensure the quality and safety of the sold traditional Chinese medicine.

1. Tort Liability

Article 1165 of the Civil Code states: "If a person causes damage to another person's civil rights due to fault, he shall bear tort liability. If the law presumes that the actor is at fault and he cannot prove that he is not at fault, he shall bear tort liability." In this incident, if the shop owner cannot prove that he was not at fault for the misidentification of the medicinal materials (such as having a standard procurement channel and having fulfilled reasonable inspection obligations), he shall bear tort compensation liability for the elderly man's death, including medical expenses, nursing fees, transportation fees, funeral expenses, and death compensation.

At the same time, according to Article 1179 of the Civil Code, if a person's actions cause personal injury to another, he shall compensate for reasonable expenses incurred for treatment and rehabilitation, such as medical expenses, nursing fees, transportation fees, nutrition fees, and hospitalization meal subsidies, as well as lost income due to work interruption. If disability is caused, he shall also compensate for assistive device costs and disability compensation; if death occurs, he shall also compensate for funeral expenses and death compensation. The elderly man's family has the right to claim these compensations from the shop owner according to law.

2. Breach of Contract Liability

From the perspective of the contractual relationship, the elderly man went to the shop to purchase "Haifengteng", forming a sales contract relationship with the shop. As the seller, the shop has the obligation to provide goods that meet quality standards and safety requirements. However, by mistakenly selling "Chuanxinlian" as "Haifengteng", it failed to fulfill the contractual obligation to provide safe goods, constituting a breach of contract.

According to the relevant provisions of the contract section of the Civil Code: "If one party fails to perform contractual obligations or performs contractual obligations that do not meet the agreement, he shall bear the liability for breach of contract, including continuing performance, taking remedial measures, or compensating for losses." Therefore, the elderly man's family can request the shop owner to bear breach of contract liability and compensate for the losses caused to the family due to the breach, including but not limited to the medical expenses incurred by the elderly man and the reasonable expenses incurred by the family for handling funeral matters.

In judicial procedures, the collection of evidence is crucial. The police and market supervision departments need to comprehensively and meticulously collect various types of evidence to accurately determine the responsibility of the shop owner.

Purchase records: These can clarify the time, place, quantity, and price of the elderly person's purchase of medicinal materials, confirming the authenticity of the transaction.

Medicinal material samples: These are key physical evidence to determine whether the sold medicinal material is "Duan Chang Cao" and its toxicity.

Witness testimonies: Testimonies from other customers, store staff, or nearby residents may provide information about the shop's operating conditions, the owner's sales behavior, and whether they were aware of the issues with the medicinal materials.

Medical reports: These detail the symptoms, diagnosis process, treatment measures, and the ultimate cause of death of the elderly person after poisoning, which is crucial for proving the causal relationship between the elderly person's death and the ingestion of "Duan Chang Cao."

Only through sufficient and conclusive evidence can the degree of negligence of the shop owner in the incident be accurately judged, leading to a fair legal resolution.

Although this incident is initially judged as a case of selling the wrong goods, it also highlights the disorder in the traditional Chinese medicine market, which is somewhat related to the issue of counterfeit medicinal materials. In the traditional Chinese medicine market, counterfeit goods frequently occur. Some unscrupulous merchants deliberately confuse the genuine with the fake and pass off inferior products as superior. For example, they may use ordinary plants to impersonate precious medicinal materials or illegally process medicinal materials to alter their properties.

From a legal perspective, the "Drug Administration Law of the People's Republic of China" has strict regulations on the production and operation of medicinal materials. It explicitly prohibits the production and sale of counterfeit and inferior drugs. Counterfeit drugs include those whose ingredients do not match the national drug standards, as well as those that impersonate non-drugs as drugs or other types of drugs as this type of drug. If a merchant intentionally sells counterfeit medicinal materials, they will face severe penalties. According to the law: "Those who produce or sell counterfeit drugs will have their illegally produced or sold drugs and illegal gains confiscated, be ordered to cease production and business operations for rectification, have their drug approval documents revoked, and be fined an amount between fifteen to thirty times the value of the illegally produced or sold drugs; if the value is less than one hundred thousand yuan, it will be calculated as one hundred thousand yuan; in severe cases, their drug production license, drug business license, or medical institution preparation license will be revoked, and their corresponding applications will not be accepted for ten years; if the drug marketing authorization holder is a foreign enterprise, the import of their drugs will be prohibited for ten years." This regulation aims to severely crack down on the counterfeit goods problem in the traditional Chinese medicine market and protect consumers' legal rights.

1. Strengthen Market Supervision

Relevant departments should strengthen the supervision of the traditional Chinese medicine market, establish stricter market access systems, and standardize the procurement, storage, and sales of medicinal materials.

2. Improve Personnel Quality

Strengthen training and qualification management for sales personnel of medicinal materials, improve their professional knowledge and sense of responsibility, and ensure they can accurately identify the authenticity and safety of medicinal materials.

3. Enhance Publicity and Education

Increase efforts in publicity and education for consumers, enhance their awareness and ability to distinguish medicinal materials, and guide consumers to choose legitimate channels for purchasing medicinal materials.

This incident serves as a wake-up call for the traditional Chinese medicine market. For many merchants, it should be a lesson to strictly adhere to laws and regulations, operate with integrity, and effectively ensure the safety and health of consumers. At the same time, consumers should remain vigilant when purchasing medicinal materials, try to choose qualified and reputable merchants, and keep relevant purchase receipts to protect their rights legally in case of infringement.

As a treasure of the Chinese nation, the quality and safety of medicinal materials are directly related to the health and safety of consumers. Only by strengthening market supervision, improving personnel quality, and enhancing publicity and education through multiple measures can we effectively curb the disorder in the traditional Chinese medicine market and protect consumers' legal rights. At the same time, we also look forward to further improving relevant laws and regulations and exploring judicial practices to provide strong legal guarantees for the healthy development of the traditional Chinese medicine market.

Disclaimer: The content of this article is for reference only and aims at legal popularization, not constituting any professional advice.