Law and Food Safety in China---Impact of Legal Inovation
Du Gangjian
Institute of Food and Drug Law
Law School Hunan University
Background of China’s Food Safety Law
Following the outbreak of the contaminated milk powder incident in late 2008, Chinese legislators proposed a revision of the food safety draft law during its third review at the fifth session of the Eleventh National People’s Congress Standing Committee as a response to the weaknesses uncovered by this incident.
On February 28, China’s National People’s Congress (NPC) Standing Committee passed the first comprehensive Food Safety Law (FSL) after five years of drafting; the first draft was read in December 2007. The FSL went into effect on June 1, 2009.
Revisions
Enhancing the responsibilities of the local governments and relative competent authorities,
Intensifying the risk assessment and recall system, Establishing the general principles for standard
setting, Strengthening the supervision on the small food
workshops and vendors as well as the regulation of the additives,
Increasing the ability of emergence response to food safety incidents and abolishing the exemption for quality-guaranteed products.
Contents of Food Safety Law Chapter I General Provisions Chapter II Monitoring and Assessment of Food Safety Risks Chapter III Food Safety Standards Chapter IV Food Production and Business OperationChapter V Food InspectionChapter VI Import and Export of Food Chapter VII Handling of Food Safety Accidents Chapter VIII Supervision and Administration Chapter IX Legal Liabilities Chapter X Supplementary Provisions 104 Articles
1. Impact on awareness of rights to safe food as human rights
Enhancement of awareness of right to food Although the phrase " right to safe food- "
not used in the text, its spirit could be reflected in many provisions.
This Law is formulated to assure food safety, and safeguard people's health and life.
Constitutional Requirement
The state respects and protects human rights.
The food safety law is definitely an effective way to put this constitutional requirement into practice and to fulfill its obligations to protect the life and health of its people by the government since the access to safe food is the prerequisite for a safe and healthy life.
Food Sustainability and Animal Welfare
Food sustainability has to do with protection of the environment and protection of the wellbeing of animals.
The forthcoming Animal Protection Law - the country's first comprehensive legislation to protect animals.
Animal welfare has become, in fact, a reason to restrict meat imports from China used by some countries. Because of not meeting animal welfare standards, China's meat products, except for rabbit and cooked poultry, are barred as exports to the European Union.
In 2008, China's meat production topped 72.69 million tones, accounting for 29 percent of global total output. Exports, however, were only 742,000 tones.
2.Impact on Food Safety Regulatory System
The State Council has established the Food Safety Committee, with the responsibilities determined by the State Council.
Separation of functions of the different competent authorities ‘from farm to folk’ while stressing the leading role played by the Ministry of Health.
Role of the Health Authorities
The health authorities under the State Council is responsible for the overall coordination for food safety, and food safety assessment, development of food safety standards, publishing of food safety information, development of the certification conditions for qualification of the food inspection and testing agencies and the specification of inspection and testing, and organization for investigation and treatment of the significant food safety accidents.
Other Regulatory Authorities
The authorities for quality supervision, administration of industry and commerce and FDA under the State Council shall be responsible for supervision and management of the food production, food distribution and catering service respectively according to the Law and the requirements of the State Council.
Agriculture authority
Functions of Local governments
Local people's governments at and above county level shall take overall responsibility for, lead, organize and coordinate the supervision and management of food safety in their jurisdiction;
establish and hone food safety coordination mechanisms for the inspection and management of food safety, take the leading and commanding role in dealing with food safety emergencies, develop a food safety accountability system, and review and evaluate the performance of food safety regulatory agencies
Departments at Local Level
The administrative departments for health, agriculture, quality supervision, industry and commerce and FDA at the county level or above shall strengthen communication and close cooperation, exercise the power and bear the responsibilities according to the work division.
3.Impact of Innovation of legal construct and Processes
Many other regulations and implementing measures have been released following the publication of the final food safety law .
Implementation Rules of Food Safety Law
Implementation Rules of Food Safety Law have been adopted at the 73rd Standing Committee Meeting of the State Council on July 8, 2009,
Be effective from the date of issuance---July 20, 2009
Contents of Implementation Rules of Food Safety Law
Chapter 1 General Provisions Chapter 2 Food Safety Risk Surveillance and Assessment
Chapter 3 Food Safety Standard Chapter 4 Food Manufacture and Trade Chapter 5 Food Inspection Chapter 6 Food Import and Export Chapter 7 Response to Food Safety Incidents Chapter 8 Supervision and Administration Chapter 9 Legal Liability Chapter 10 Miscellaneous 64 Articles
Food Safety Regulations in Circulation Section
Notice of the State Administration for Industry and Commerce on Issuing Eight Systems on Food Safety Regulation in Circulation Section Including the “System on Administration of Registration of Subject Entry in Food Market” 28/8/2009
Regulations from SAIC
Eight Systems on Food Safety Regulation in Circulation Section
Registration System for Entering Food Market Supervising System for Quality of Food Market Visitatorial System of Food Market Checking System of Food Sample Supervising System of Classification of Food Market Predicting System of Food Fafety Supervising System of Food Advertisement Harmonizing System of Implementing Law
SFDA requires food accidents reported within six hours
The State Food and Drug Administration (SFDA), demands that once accidents occur involving 30 or more people, food and drug regulators at or above the county level should report them to their superiors and local health authorities within six hours.
With regard to food safety accidents that occur on campuses, during important nationwide festivities, involve 100 people or more, or kill one or more people, food and drug regulators should not only abide by the "six hour regulation," but also report them to the SFDA "in a timely manner"
Requirements from SFDA
Catering service runners, should they find food accidents, are asked to immediately stop using all suspicious food and cooking facilities and protect the site. They are also required to report to medical authorities and food regulators at or above the county level within two hours.
Heads at schools, companies or government organs will be held accountable if food accidents occur twice in one year in their cafeterias.
The SFDA also asked food and drug regulators at all levels to formulate emergency plans to deal with food accidents based on local conditions.
Reform of Administrative Review
Notice of the State Food and Drug Administration on Promoting the Reform of Administrative Examination and Approval System in the Food and Drug Supervision System of 200930/6
Announcement of SAQSIQ
Public Announcement of the State Administration of Quality Supervision, Inspection and Quarantine on Issuing the Risk Grades of Import and Export Forage and Forage Additives and Regulatory Manner of Inspection and Quarantine
27/8/2009
Strengthening the Live Pig Insurance and Epidemic Prevention
Notice of the China Insurance Regulatory Commission and the Ministry of Agriculture on Further Strengthening the Live Pig Insurance and Epidemic Prevention to Promote the Development of Living Pig Production3/8/20093/8/2009
Local regulations
Provisions of Guangdong Province on Administration of Edible Agricultural Products14/8/2009
4.Impact On Surveillance and Assessment of Food Safety
A surveillance system for food safety shall be established nationwide for surveillance over food-borne disease, food contamination and other food-related hazards to human health.
The health administrative departments of the State Council shall establish and implement plans for the surveillance of national food safety in conjunction with other departments of the State Council.
Assessment of Food Safety Risk
The assessment of food safety risk shall be the responsibility of a food safety risk assessment committee composing experts in medicine, agriculture, food, nutrition and other fields invited by the health authorities under the State Council.
The authorities for agriculture, quality supervision, administration of industry and commerce and FDA under the State Council shall propose the suggestions on assessment of the food safety risk, and provide the relevant information.
Result of Assessment
If the result of a food safety risk assessment proves food to be unsafe, the authorities shall promptly take appropriate measures.
Ensure food producers or business operators to suspend or cease trading of such food,
Inform consumers to stop use
Food Safety Standards
The food safety standards shall be intended to safeguard the health of the public, to be scientific, reasonable, safe and reliable.
Food safety standards are mandatory The heath administrative department shall
be responsible for developing and publicizing the national food safety standards;
National , Local and Company Standards
The National Food Safety Standard Review Committee is responsible for review the scientific level, applicability and others of the drafts of national food safety standard
The provincial health administrative authorities shall transmit the enterprise standards submitted by companies to MOA, AQSIQ, SAIC, SFDA, MOFCOM and other departments at the same level.
Food manufacturers, traders and food industry associations, upon finding any problem in implementing the food safety standard, shall immediately report to the food safety regulatory authorities.
5.Impact on Manufacturers and Traders
The State implements a licensing system for food production and trading.
Any organization or individual shall obtain the food production license, food distribution license or catering service license before starting the food production, food distribution or catering service.
The effective period of the food production permit, food distribution permit and catering service permit shall be three years
Routine Supervision and Inspection
The AQSIQ, SAIC and SFDA at or above county level shall strengthen the routine supervision and inspection of the food production and trading activities of the food manufacturer and trader;
when finding any case not meeting the requirements for food production and trading requirements, the order for correction and punishment shall be issued;
when it still fails to meet the conditions for the production and trading permit, cancelation of the relevant permit shall be according to the law.
Obligations to Several Systems
The food manufacturer and trader shall establish an employee filing system;
the incoming product inspection and record system, food shipment inspection and record system The records
and instruments shall be kept for at least 2 years. food safety management systems about the material
acceptance, production process safety management, storage management, equipment management, non-conforming product management and other food safety assurance system
The Control Requirements
The food manufacturer shall prepare and implement the control requirements for the following aspects to ensure the shipped foods meet the food safety standard:
Purchase, acceptance, loading and other aspects of the materials;
Production techniques, equipment, storage, packaging and other key production procedures;
Inspection of materials, semi-finished products or shipment of finished products, etc.;
Transport and delivery.
Approval of Food Production License
The AQSIQ at or above county level shall review the relevant documents, verify the production site, inspect the products according to the relevant laws and regulations; approve the company when the relevant documents and site meet the requirements and the products conform to the food safety standards or requirements.
Obtaining License
The food producer having the food production license is not required to obtain the food distribution license when selling foods produced by itself at its production premises;
The catering service provider having the catering service license is not required to obtain the food production/distribution license when selling foods produced by itself at its service premises,
The farmer when selling the self produced edible agricultural products is not required to obtain the food distribution license.
6.Impact on Law Enforcement and Law Compliance
As a basic law, the food safety law should be respected by all executive bodies and all other parties involved in the food chain. effective law enforcement and law compliance are two key issues to ensure the rule of law in the field of food safety regulation together with the appropriate punishment for food safety violations.
to lay down clearly the accountability system for the both parties - those that are meant for the competent authorities who are responsible for official control and the food business operators responsible for self control.
Improving Food Safety Standards
Food safety standards should be compatible with the development of the food industry and take into account the generally recognized standards made by the departments of the United Nations or other international organizations.
It is a difficult task to ensure the same level of protection for all consumers within the country in light of the unbalanced development of regions, especially the disparity between the rural and urban areas. However, every one is entitled to enjoy safe and nutritional food, and so when it comes to the issue of food safety, basic standards such as hygiene or nutritional requirements should be applied equally to different regions.
One China, one standard.
Protecting Right of Consumers
The food safety law has set forth the article that consumers have the right to demand compensation according to the law for any physical and property damage caused by consumption of food, food additives or food-related products
The mechanism for the remedy and compensation of victims will also need to be put in place for the public and consumers to claim their rights. I
Consumers could claim their compensation by collective litigation as the compensation is often too low when claimed by individuals.
Food safety information, laws, regulations and standards shall be publicized by the media free of charge.
Role of National Food Safety Committee
Function and operation of national food safety committee. Transparency and accountability principles should also be
applied to its work. It cannot be avoided that compromises would only be
reached based on the interests of the departments rather than the public.
The public participation of stakeholders, involving representatives from the scientific community, consumers, producers, processors, retailers, etc,
The institutional arrangement in this regard can refer to the experience on the multilateral review of experts in food safety regulation within the EU.
Thanks
