Banning outside food and drinks and setting minimum consumption are unfair clauses.

Report (Reporter Ren Zhenyu) The Supreme People's Court responded to our newspaper's written interview on February 12, stating that unequal standard clauses (commonly known as unfair clauses) formulated by the catering industry do not apply to the "Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Food and Drug Disputes" (hereinafter referred to as the "Provisions"), but for clauses that violate the "Contract Law" and the "Law on the Protection of Consumer Rights and Interests" (hereinafter referred to as the "Consumer Rights Law"), consumers may request the People's Court to confirm the invalidity of the unfair clauses.

On January 9 this year, Article 16 of the "Provisions" promulgated by the Supreme People's Court states: "If food and drug producers or sellers use standard contracts, notices, statements, announcements, etc., to exclude or limit consumer rights, reduce or exempt operator responsibilities, or increase consumer responsibilities, making unfair or unreasonable provisions for consumers, and consumers request in accordance with the law to confirm that such content is invalid, the People's Court shall support it."

So, do catering enterprises belong to food producers and need to be bound by the "Provisions"? For unfair clauses in the catering industry, can consumers apply to the court for revocation? In its response to our newspaper's interview letter, the Supreme People's Court stated that "banning self-brought drinks" and "setting minimum consumption in private rooms" in the catering industry are unfair clauses in service contracts, which are unfair and unreasonable provisions made by the catering industry using its advantageous position when providing catering services to consumers. The "Provisions" mainly address how to handle disputes between food and drug producers, sellers, and consumers. According to Article 2 of the "Consumer Rights Law", consumers who purchase, use goods, or receive services are subject to this law. Therefore, when consumers encounter unfair clauses in disputes during catering services, they can apply the provisions of the "Consumer Rights Law" but not the "Provisions".

Regarding the view that "the food and catering industry is a fully competitive industry, and some unequal standard clauses, such as 'banning self-brought drinks' and 'setting minimum consumption in private rooms,' are not explicitly prohibited by law, and actions not explicitly prohibited by law are legal," the Supreme People's Court stated in its response to our newspaper that the "Provisions" do not conflict with the view that "actions not explicitly prohibited by law are legal."

The Supreme People's Court further pointed out in its response that "banning self-brought drinks" and "setting minimum consumption in private rooms" are both unfair and unreasonable provisions made by catering operators using their advantageous position to increase consumer responsibilities, violating relevant legal provisions and constituting unfair clauses. Consumers can, based on the above legal provisions, request the People's Court to confirm the invalidity of the unfair clauses.

● Relevant Legal Provisions

1. Article 40 of the Contract Law: A standard clause shall be void if it falls under the circumstances specified in Articles 52 and 53 of this Law, or if the party providing the standard clause exempts itself from liability,加重 the other party's liability, or excludes the other party's main rights.

2. Article 26, Paragraphs 2 and 3 of the Consumer Protection Law: Business operators shall not, through standard clauses, notices, declarations, in-store announcements, or other means, make provisions that exclude or limit consumers' rights, reduce or exempt business operators' liability, or increase consumers' liability, which are unfair or unreasonable to consumers, nor shall they use standard clauses with technical means to force transactions.

Standard clauses, notices, declarations, in-store announcements, or other means containing the content specified in the preceding paragraph shall be void.