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2016 (Ju) 1050

2017.01.24
2016 (Ju) 1050
Minshu Vol. 71, No. 1
Judgment on approaches by a Business Operator, etc. directed to many unspecified consumers and on “soliciting” as referred to in Article 12, paragraphs (1) and (2) of the Consumer Contract Act
Case seeking injunction of distribution of inserts about chlorella
Judgment of the Third Petty bench, dismissed
Osaka High Court, Judgment of February 25, 2016
Even if approaches by a Business Operator, etc. are directed to many unspecified consumers, this does not immediately mean that such approaches constitute “soliciting” as referred to in Article 12, paragraphs (1) and (2) of the Consumer Contract Act
Article 4, paragraphs (1) to (3) and Article 12, paragraphs (1) and (2) of the Consumer Contract Act



Consumer Contract Act

Article 4 (1) A Consumer may rescind the manifestation of his/her intention to offer or accept a Consumer Contract if either of the actions listed in the following items in which the Business Operator engaged when soliciting the Consumer to enter into such a Consumer Contract caused the Consumer to be under the mistaken belief listed in the relevant item, based on which the Consumer manifested the intention to offer or accept the relevant Consumer Contract:

(i) Misrepresentation as to an Important Matter: Mistaken belief that said manifestation is true; or

(ii) Providing conclusive evaluations of future prices, amounts of money that a Consumer should receive in the future and other uncertain items subject to future change with respect to goods, rights, services and other matters that are to be the subject of a Consumer Contract: Mistaken belief that the content of said conclusive evaluation is certain.

(2) A Consumer may rescind the manifestation of his/her intention to offer or accept a Consumer Contract if a Business Operator, when soliciting said Consumer to enter into said contract, represents only the advantages of an Important Matter or a matter related thereto but intentionally omits disadvantageous facts (limited to facts that a Consumer would normally consider to be non-existent by such omission), about such Important Matter, causing said Consumer to mistakenly believe the non-existence of such facts. However, this shall not apply when said Business Operator has attempted to communicate such facts to said Consumer and said Consumer refused to hear such attempted communication.

(3) A Consumer may rescind the manifestation of his/her intention to offer or accept a Consumer Contract if he/she is distressed as a result of either of the following acts engaged in by a Business Operator when soliciting said Consumer to enter into said Consumer Contract:

(i) Failure to leave a Consumer’s residence or place of business in defiance of the Consumer’s request that the Business Operator leave such place; or

(ii) Preventing a Consumer from leaving a place where the Business Operator is soliciting the Consumer to enter into a Consumer Contract in defiance of the Consumer’s request to leave.



Article 12 (1) Where a Business Operator, an Entrusted Party etc. or an agent of a Business Operator or an Entrusted Party, etc. (hereinafter referred to as a “Business Operator, etc.”) engages in or is likely to engage in acts such as those prescribed in the provisions of Article 4, paragraphs (1) to (3) (excluding cases which fall under the proviso to paragraph (2) of the same Article; the same shall apply to the following paragraph) in soliciting many and unspecified Consumers to execute Consumer Contracts, Qualified Consumer Organizations may demand that said Business Operator, etc. stop or prevent such acts, dispose of or remove materials used for such acts or take other necessary measures to stop or to prevent such acts; provided, however, that this shall not apply where the Consumer Contract may not be rescinded on the grounds of such acts pursuant to the provisions of any laws or regulations other than the Civil Code and the Commercial Code.

(2) In cases where the persons listed in the following items engage in or are likely to engage in acts such as those prescribed in the provisions of Article 4, paragraphs (1) to (3) in soliciting many and unspecified Consumers to execute Consumer Contracts, Qualified Consumer Organizations may demand the persons provided in each item to take the necessary measures to stop or prevent such acts, such as instructing the person prescribed therein to rectify this or stopping it from inducing Consumers into Consumer Contracts. In this case, the proviso of the preceding paragraph shall apply mutatis mutandis:

(i) The Entrusted Party, etc.: The Business Operator or the other Entrusted Party, etc. that entrusted the relevant Entrusted Party, etc. (including entrustment at the second or higher degree of separation from the original entrustment); and

(ii) The agent of a Business Operator or of an Entrusted Party, etc.: The Business Operator or Entrusted Party, etc. that appointed the relevant agent as its own agent, or any other agent of such Business Operator or Entrusted Party, etc.
The final appeal is dismissed.

The costs of the final appeal shall be borne by the appellant.
Regarding V of the reasons for the petition for acceptance of final appeal filed by the counsels for the appeal, NAGANO Kozo et al.



1. In this case, the appellant, which is a Qualified Consumer Organization as referred to in Article 2, paragraph (4) of the Consumer Contract Act (hereinafter referred to as the “Act”), seeks an injunction against the appellee, a company engaged in the retail sale of health food products, among other activities, to prevent the appellee from claiming the effects and the like of an ingredient of its health food products in newspaper inserts, whether directly or by such means as contracting out to third parties, under Article 12, paragraphs (1) and (2) of the Act on the grounds that the appellee’s distribution of newspaper inserts claiming the effects and the like of that ingredient of its health food products (hereinafter referred to as the “Inserts”) constitutes an action listed in Article 4, paragraph (1), item (i) of the Act in which the appellee engaged when soliciting consumers to enter into a Consumer Contract (as defined in Article 2, paragraph (3) of the Act). The point at issue is whether or not the appellee’s distribution of the Inserts constitutes “soliciting” as referred to in Article 12, paragraphs (1) and (2) of the Act.

2. The outline of facts related to the case which duly became final and binding in the judgment of prior instance is as described below:

(1) Since 1973, the appellee has marketed health food products whose ingredient is chlorella, a unicellular green algae.

(2) On August 21, 2013, the appellee distributed, by inserting in newspapers delivered in Kyoto City, the Inserts containing, among others, a claim that chlorella has such effects as keeping the immune system healthy and enhancing the activity of cells, as well as testimonials claiming that taking chlorella resulted in recovery from various illnesses, such as high blood pressure, low back pain, diabetes mellitus, etc.

(3) The Inserts have not been distributed since January 22, 2015. Since June 29, 2015, the appellee has distributed inserts without the claim described in (2) above. The appellee has also declared that it will never distribute the Inserts in the future. It is therefore unlikely that the appellee will distribute the Inserts.

3. The court of prior instance dismissed the appellant’s claim made under Article 12, paragraphs (1) and (2) of the Act, ruling that because “soliciting” as referred to in the said paragraphs did not include approaches directed to many unspecified consumers, the distribution of the Inserts was not considered to constitute such “soliciting” since it was approaches directed to many unspecified consumers who subscribed to newspapers.

4. However, the above ruling of the court of prior instance is unacceptable, for the following reasons.

For such purposes as protecting the interests of Consumers in consideration of the disparity in the quality and quantity of information and negotiating power between Consumers and Business Operators (Article 1 of the Act), the Act entitles a Consumer to rescind the manifestation of his/her intention to offer or accept a Consumer Contract if any misrepresentation as to an Important Matter or any of the other prescribed actions that would have an unfair influence on Consumer’s decision making in which the Business Operator or the like engaged when soliciting the Consumer to enter into such a Consumer Contract caused the Consumer to be under the mistaken belief, based on which the Consumer manifested the intention to offer or accept the Consumer Contract (Article 4, paragraphs (1) to (3) and Article 5 of the Act). In addition, in order to prevent damage to Consumers from occurring or spreading, the Act permits Qualified Consumer Organizations to demand that the Business Operator or the like stop the aforementioned actions or take other measures if the Business Operator or the like engages in or is likely to engage in the aforementioned actions or otherwise meets certain conditions when soliciting Consumers to enter into Consumer Contracts (Article 12, paragraphs (1) and (2) of the Act).

Now, the Act does not contain any provisions that define the term “soliciting” as referred to in the aforementioned provisions. In this context, if, for instance, a Business Operator makes approaches to many unspecified Consumers through newspaper advertisements which, judged from their contents as a whole, would enable Consumers to have a specific understanding of the details of, and the terms and conditions for transactions of, the Business Operator’s goods as well as other information on such transactions, such approaches could have a direct influence on individual Consumers’ decision making. It is thus difficult to consider it reasonable, in light of the intention and purpose of the Act as described above, to uniformly exclude approaches by a Business Operator or the like directed to many unspecified Consumers from the application of these provisions, on the grounds that such approaches do not constitute “soliciting” as referred to in the aforementioned provisions.

Therefore, even if approaches by a Business Operator or the like are directed to many unspecified Consumers, this should not immediately mean that such approaches do not constitute “soliciting” as referred to in Article 12, paragraphs (1) and (2) of the Act.

5. For the above reasons, the ruling of the court of prior instance that the distribution of the Inserts does not constitute “soliciting” as referred to in Article 12, paragraphs (1) and (2) of the Act because such distribution is approaches directed to many unspecified Consumers, is illegal in that it erred in the interpretation and application of law.

However, based on the facts related to this case described above, it cannot be deemed that the appellee “engages in or is likely to engage in” the distribution of the Inserts as set forth in the aforementioned paragraphs. The Court thus accepts the conclusion of the court of prior instance in dismissing the appellant’s claim based on the aforementioned paragraphs. The appellant’s arguments are not acceptable as they merely assert illegality that does not affect the conclusion of the judgment of prior instance.

The final appeal related to the remaining claims shall be dismissed, as the corresponding reasons for the petition for acceptance of final appeal were excluded in the decision to accept the final appeal.

Accordingly, the Court unanimously decides as set forth in the main text.
Justice YAMASAKI Toshimitsu

Justice OKABE Kiyoko

Justice OTANI Takehiko

Justice OHASHI Masaharu

Justice KIUCHI Michiyoshi
(This translation is provisional and subject to revision.)