By tf-lawyer.com Recently, an investigation by CCTV News has brought to light the troubling presence of “ghost kitchens” on food delivery platforms. These hidden establishments, often operating without the necessary licenses and in subpar conditions, have drawn significant attention from online users. The complex process—from ordering a meal on a delivery platform to having it prepared and delivered—raises important legal concerns for consumers. How can individuals protect themselves when faced with issues related to food safety and delivery?
**Question 1: What should you do if you get sick after ordering food delivery?**
Take the case of Ms. Li, who ordered a meal from a pickled fish restaurant through a delivery app. After paying 35 yuan online, she experienced symptoms like vomiting, diarrhea, and gastrointestinal discomfort the following day. After a trip to the hospital, she was diagnosed with acute gastroenteritis, facing 460 yuan in medical bills. After unsuccessful attempts to reach an agreement with the restaurant and the delivery platform, she decided to take legal action. The court ruled in her favor, instructing the restaurant to refund her the 35 yuan for the meal, pay her medical expenses of 460 yuan, and provide an additional punitive compensation of 1,000 yuan.
Typically, when a consumer places an order and makes payment, a sales contract is formed between them and the food merchant. In Ms. Li’s situation, the restaurant is responsible for providing safe and healthy food. The failure to meet this obligation resulted in a breach of contract and an infringement on her consumer rights. According to Article 148 of the Food Safety Law of China, consumers can claim compensation for losses, and if food safety standards are violated, they may also seek ten times the purchase price or three times their losses, with a minimum compensation set at 1,000 yuan.
For consumers, establishing that their illness is linked to the restaurant’s food can be challenging. It’s vital to gather evidence, including hospital test results, medical records, order receipts, and diagnostic reports to back up their claims.
Additionally, if a consumer receives food that appears spoiled or contaminated but does not fall ill, they can still seek compensation. Items that spoil or contain foreign objects are considered “food not meeting safety standards,” entitling consumers to punitive compensation as per the same legal provisions. It’s critical to understand that if a business uses harmful non-food ingredients, this could lead to criminal implications.
Even complimentary items delivered by food merchants must adhere to safety and quality standards. A new consumer rights protection regulation mandates that all goods and services provided—regardless of price—must meet safety norms. Consequently, if a free item is found faulty, consumers are entitled to the same legal protections as they would be for any paid item.
**Question 2: How should you handle a lost delivery?**
Many consumers have experienced the frustration of placing a food order only to discover it missing upon arrival. If you’ve already paid for your meal and it doesn’t show up, what steps should you take?
Most delivery platforms operate on a direct delivery model, where consumers enter into a service agreement with the platform ensuring timely and accurate delivery. According to Article 604 of the Civil Code, the risk of loss rests with the seller until delivery is complete. There are two potential scenarios: if no agreed-upon delivery method is established, the order must reach the consumer directly. If the delivery person leaves the order somewhere without consent, they could be liable for breach of contract.
However, what if the delivery was intentionally left in a designated spot and then stolen? In such cases, it’s important to recognize that taking someone else’s delivery constitutes theft and should be reported to law enforcement. Consumers should promptly inform the police about the stolen delivery, which may lead to various penalties, such as warnings or fines, depending on the specific circumstances. While theft of low-value goods might not normally constitute criminal theft, repeat offenders could face criminal charges based on their intent.
**Question 3: Can you claim compensation if the delivered food does not match the description?**
Imagine ordering a salmon dish only to receive rainbow trout, or expecting duck liver and getting duck gizzards instead. Given the inherent distance and delays in food delivery, consumers often rely solely on the images and descriptions provided by merchants. If the delivered food is not as described, what recourse is available?
The issue of “ghost kitchens” has highlighted that some restaurants might not even exist or are deliberately misleading about their operating conditions, which is a breach of consumer trust. Article 55 of the Consumer Rights Protection Law states that businesses engaged in deceptive practices must compensate consumers for their losses, which may include up to three times the price of the purchased item or service, with a minimum of 500 yuan.
Misrepresentations about food quality or a restaurant’s environment are considered deceiving practices. Consumers who feel cheated should keep a detailed record of their orders and document the discrepancies, possibly taking photos or videos as evidence. If a merchant refuses to offer compensation, consumers can reach out to the national consumer complaint hotline, 12315. In serious cases of fraud, authorities may impose significant penalties, including fines or the revocation of business licenses.
**Question 4: Are delivery platforms liable if a merchant operates without a license?**
When you place an order, you create a sales contract with the food merchant and a service contract with the delivery platform, which has a duty to connect consumers to licensed providers. This imposes a responsibility on the platform to ensure that they vet qualified merchants.
The legal responsibility falls on the platform to verify the legitimacy of restaurants before allowing them to operate. If an unlicensed restaurant causes harm to a consumer, can the platform be held accountable?
Yes, if a consumer suffers harm from a restaurant operating without a license, the delivery platform can be held liable for joint compensation. As a third-party entity in the food transaction, the platform must carry out its legal duty to ensure that restaurant partners have the required food handling licenses. If consumers incur losses due to unlicensed operations, they can pursue compensation from both the restaurant and the delivery platform.
Moreover, platforms that fail to meet their oversight obligations can face administrative penalties. For instance, a delivery service recently faced consequences for not verifying the licenses of its listed restaurants, resulting in fines and the forfeiture of illegal gains.
**Question 5: What penalties exist for malicious claims?**
Incidents of fraud—such as planting dead cockroaches in food to extract money or falsely claiming to find flies in drinks—have emerged, with some individuals exploiting legal loopholes to extort from businesses. Many merchants might find it easier to issue refunds to avoid conflict, which may inadvertently encourage further fraudulent behavior.
A recent police case highlighted a couple who successfully extorted over half a million yuan from businesses by falsely claiming to have found foreign objects in their meals. Because the average value of a food order is often low, many neglect to recognize that such malicious claims are fabrications and can be prosecuted.
According to the Administrative Penalty Law, those guilty of theft, fraud, or extortion can face detention and fines. Repeat offenders can be charged criminally for extortion or fraud.
Restaurants facing malicious claims should handle the situation proactively rather than simply complying, as capitulating only bolsters the confidence of those aiming to exploit them. They can legally safeguard their reputation by documenting evidence of the false claims and pursuing damages for reputational harm.
(Author: Qin Jin, Beijing Fourth Intermediate People’s Court)
