Food Safety & the Food Recall System in China

01 October 2013

Ai-Leen Lim, Jennifer Shi

Food safety incidents in China have been receiving increased public and media scrutiny as it becomes a bigger and bigger player on the world stage – both as a key importer and exporter. This started with the 2008 melamine milk scandal involving a local large milk producer (where 6 babies died and affected at least 294,000 other children), and unfortunately it seems like history keeps repeating itself with the recent scandal involving contaminated infant milk formula produced by one of the world’s largest diary exporters based in New Zealand. It appears that foreign producers are equally likely to be embroiled in food scandals in China. 

This has inevitably led to food safety becoming one of the major concerns of the Chinese government. The State Council, China’s cabinet, has listed an overhaul of the food safety law as its key legislative work for 2013, with harsher deterrent penalties and more stringent measures.

The Applicable Laws and Regulations that deal with Food Safety in China 

The Food Safety Law was enacted in 2009 in response to the abovementioned notorious melamine infant formula scandal in 2008.

Other laws related to food safety include the Product Quality Law, Standardization Law, Metrology Law, Law on the Protection of Consumer Rights and Interests, Law on the Quality and Safety of Agriculture Products, Criminal Law, Food Hygiene Law, Law on Import and Export Commodity Inspection, Law on Animal and Plant Entry and Exit Quarantine, Frontier Health and Quarantine Law and Law on Animal Disease Prevention etc.  Governmental agencies have also stipulated many specific administrative regulations and departmental rules to further protect the public on food safety issues. Further, there are over a thousand “national standards” concerning food safety in China.

In relation to criminal prosecutions, the Chinese courts have handed down penalties ranging from fines, life imprisonment and the death penalty (for fatal cases of serious food safety breaches), and there is a trend towards harsher sentencing for food safety crimes, with the Supreme Court repeatedly announcing its stance publicly in this regard. It has been reported that between 2010 and 2012, the Chinese courts heard 1,533 criminal cases related to the production and sale of toxic unsafe food, and sentenced 2,088 people.

 

Food Recall System

Among the numerous laws, regulations and standards, the regulation that establishes the food recall system is the Provisions of the Administration of Food Recall (“Provisions”). The Provisions were promulgated by the General Administration of Quality Supervision, Inspection and Quarantine of the PRC (AQSIQ) in 2007. These provide for the assessment and investigation standards of food safety hazards, implementation methods for food recalls, and the legal liabilities for breaching the food recall system.   

The Provisions clearly stipulate that it is the food producers and vendors who have the legal responsibility for preventing and eliminating unsafe food. The Provisions require food producers and vendors to stop the production, circulation and sale of unsafe foods, report such unsafe foods to the relevant authorities and notify the customers or vendors of the same. The recall process is briefly illustrated in the chart below.  Food recalls can be voluntary or compulsory.  Failure to carry out such recalls will lead to a series of legal liabilities.  Moreover, food producers and vendors are encouraged to voluntarily recall their defective food products.  According to Article 34 of the Provisions, “where a food producer voluntarily recalls its food, a lighter or mitigated punishment may be imposed.” The Provisions also increase the administrative penalties for non-compliance with government-ordered recalls.

Suspected food safety incident diagram

The Way Forward

The fast paced changes that are afoot in the area of food law necessitate food industry players to have a good understanding of the existing food safety law and regulations, as well as the need to closely monitor the upcoming developments of the law.

More than before, it is imperative to build in processes to manage the risks of food safety breaches. This includes proactively establishing a comprehensive food product safety management system as well as stepping up efforts on food product quality management. Where there is a suspected food safety incident, a volunteer recall programme should be rolled out expeditiously to identify and mitigate the likely repercussions and avoid negative publicity. As such, it would be helpful to have a multi-disciplinary crisis management project team set up to address such issues even before the incidents occur consisting of: key management decision makers, food scientists, legal experts, public relations personnel as well as plant personnel.

The above article is a general overview of the issue of food safety in China, and does not constitute legal advice. Should you have any queries, please contact our China based partner Ai-Leen Lim at ai-leen.lim@twobirds.com