明星代言“连带责任”是否替相关机构背黑锅?–by豪迈(horror)

明星代言“连带责任”是否替相关机构背黑锅?
–by豪迈(horror)
博文预告:下一篇“关于相亲”
今天在凤凰网(http://www.ifeng.com/)的“凤凰财经大中华经济 > 2009315消费与发展”看到一文“食品安全法起草负责人:明星代言连带责任可倾家荡产”。关于明星代言连带责任,311日下午,全国人大常委会法工委行政法室主任、食品安全法起草负责人李援接受南方周末记者专访。下面关于南方周末与李援的一段问答,我觉得很有问题。
以下红字背景为摘录原文
  《食品安全法》第五十五条规定:“社会团体或者其他组织、个人在虚假广告中向消费者推荐食品,使消费者的合法权益受到损害的,与食品生产经营者承担连带责任。” 
南方周末:您怎么看冯小刚、濮存昕等文艺界名人对食品安全法第55条规定的反对,他们认为太严了? 
李援:食品广告因为涉及到食品安全,涉及到人的生命,所以它一旦出问题,危害很大。美国的规定是代言广告必须是“证言广告”和“明示担保”,也就是说广告代言人是商品推荐者也是商品证明人,是产品一定时间内的实际用户和直接受益者,证词要真实无误,否则就直接重罚。你没有使用,你去向人家说,等于你出庭作证说谎一样,很严重的。咱们这里只是承担赔偿责任。

    前些日子,两会期间一些委员提明星代言连带责任,可能与前些时间的三鹿事件有些许关系,之后有传闻笑林与玖玖理疗裤事件。这些东西,作为一个普通人,我不是法律爱好者,许多东西不明白,但总感觉要有一些道理要讲。 

明星代言连带责任,有赞成有反对,但我认为都不对。他们都没有分清连带责任指哪些。因此我也不能给出正确的评断,本文只是从道理上分析广告、明星代言、责任。其他的我没有发言权,因为即使我说了也不算。 

    首先说广告,我认为这是商家、企业对产品和服务的推广活动,形式多样,可以请普通人代言、可以请名人说项,还可以不用人来宣传。如果这样来看,前两者可以追究责任,那后者呢?如果广告的主角是牛、是耗子呢?如果连动物都没有,是植物,又或者外星人呢?如果明星有责任,那播放广告的媒体呢? 

    其次说代言,我认为代言至少有两种,我没做理论研究,只简单的分一下。一、亲身经历并一直在使用且卓有成效或至少不会有害的推介式:这种方式我认为是应该提倡的,是对所有消费者的尊重;二、纯粹出于宣传与炒作式:请一些人通过一些方法吸引大家注意。我认为,所有广告代言都应该属于这两种代言之列。 
    对于第一种,着重体现的应该是代言人说的是否实话,至于实话背后的金钱交易我们不应干涉。如果有人认为,只要产品出问题,代言人就有责任,那我认为是盲目的。因为这里有一个前提,代言人是否说实话才是关键的。如果说的是实话,确实推荐的真实有效产品:那产品确实有效,我们应该感激,因为你用了一个好东西也会向朋友推荐;产品偶尔出现问题,代言人也是受害人,因为他们也在使用,这时责任应该在谁?我认为应该是监管部门以及生产相关责任人。如果他们说的是谎话,没有什么好说的,典型的欺诈,为了一些金钱,出卖人格与道德,判死刑都不过分(有点激动了,我不懂法请原谅)。 
    对于第二种,不好评论了,因为你也会说,某公司新出了一个产品等等。这一类别花式繁多,责任难定,但我认为收钱与不收钱,是否有协议不重要,责任是不可避免的。 

    最后说责任,我不说连带责任的对错,只说,目前我国的广告对上述的两点有没有区分。如果有,那我认为第一种的说实话的没有责任,欺骗消费者的有责任。对于第二种,我认为都有责任。我感觉,如果我国没有区分第一种与第二种代言差别,那么,关于明星代言连带责任将强烈的打击出于真心推荐好产品的代言人的积极性,是不公平的。然而如果没有连带责任,对那些虚假代言又有放纵之嫌。因此我认为,合理的措施不应该是明星是否代言,而应该是在源头管理,即产品是否允许代言。因为,明星除了通过亲身体验外,没有其他鉴别能力,关键还在于质量的监管部门。 
    其实下面才是重点。到底谁能控制产品质量,我认为有二:一、生产企业;二、质量监管部门。这两者决定着质量,代言明星和我们普通消费者一样,唯一细微的区别是,我们会向身边朋友推荐好的东西,他们会想所有人推荐。如果质量监管部门都放行了,请问代言人如何分辨,我们百姓又如何分辨。如果产品以前一直很好,突然有一天不管是因为事故还是投毒的什么,请问明星如何得知,因为以前的确很好呀。这种情况如果质量监管部门都控制不了,我们凭什么让明星代言人来负责(前提是该明星出于真心推荐自己使用的好产品)。对于这种情况,我认为是相关部门在推卸责任,因为是你们让这些产品流放市场的。你们说质量可靠允许销售的,所以我们才使用的。所以我认为,只要是通过质量审批、合法上市的产品,真心代言人都不应该负责任。只有那些未经审批的伪劣假冒产品,明星只要代言就应该有责任。 

    因此我认为,对百姓负责应该做两件事:一、规范产品代言,只有通过质检合格的产品才允许代言;二、规范明星代言,只有亲身使用的才能代言,没有使用产品不能代言。做好第一点,我们才能使用到放心产品,不管明星是否代言。做好第二点,我们才能使用到更好的产品,如果消灭虚假代言的话。 

2009-4-18 #20:47:48  By豪迈(HORROR) 

[思考]明星代言“连带责任”是否替相关机构背黑锅? - 豪迈(Horror) - 沐雨听风观日月,拂花卧草戏鱼虫--原创

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16 thoughts on “明星代言“连带责任”是否替相关机构背黑锅?–by豪迈(horror)

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