Digesting China’s new endeavours on food safety

By Tess Yang, AllBright Law Offices
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Since the milk powder scandal in 2008, China has embarked on a long and complicated process of amending its Food Safety Law, which came into effect in 2009, and was intended to create systematic regulation on food safety. However, food safety scandals have continued to emerge, such as the Husi frozen meat scandal in 2014, and it seems both urgent and necessary for China to improve its food safety law, with new amendments that became effective from 1 October, 2015.

The new amendments emphasize prevention of food safety issues by refining mechanisms for risk monitoring and safety assessment, establishing traceability of the food supply chain, and expanding registration and labelling requirements on food products.

UNIFIED SUPERVISORY BODY

Under the Food Safety Law 2015, the China Food and Drug Administration (CFDA) officially takes over supervision and administration of food safety for the entire supply chain. Before the establishment of a unified supervisory organ, the regulatory mechanism for food safety was divided into three stages – production, distribution and catering service – separately governed by three government departments: the General Administration of Quality Supervision, Inspection and Quarantine (AQSIQ), the Ministry of Commerce (MOFCOM) and the State Food and Drug Administration (SFDA).

Tess Yang
Associate
AllBright Law Offices

This mechanism relied on inter-agency coordination and was inefficient due to overlapping and ambiguous duties. Therefore, the central government consolidated the supervisory functions and established the CFDA, which maintains more comprehensive functions to oversee food safety from raw materials to dinner tables.

The Food Safety Law 2015 contains an entire section for “special foods”, which include health foods, foods for special medical purposes and infant formula foods. The new amendments retain the registration requirements on infant formula foods and health foods with certain exceptions, and bring in a category of “foods for special medical purposes”, which have long been subject to food safety regulation in Western countries like the US. Manufacturers of foods for special medical purposes need to register their products with the CFDA before going into production.

In order to streamline market entry, the new amendments relax registration requirements by developing a notification system for health foods, according to which vitamins and minerals products are first imported into China. Health foods with existing and well-accepted ingredients are only subject to the filing requirements with the FDA at national or provincial level. Otherwise, the manufacturer or importer of heath foods must still undergo the long and tedious process of registration with the CFDA.

Importation is another main source of food supply, especially for dairy products. The new amendments consolidate regulations issued by AQSIQ and expand upon the Food Safety Law 2009. The China Entry-Exit Inspection and Quarantine Bureau (CIQ), a branch of the AQSIQ, will be the supervisory organ for imported foods and food additives. Under the new amendments, all imported foods and food additives must comply with national food safety standards of China, and it is mandatory to have the imported foods or food additives tested by an independent quality inspection agency, as certificates of qualification must be attached to the foods before they can be imported into China.

Food importers must take preventive measures and establish traceability of the imported foods, such as verifying the qualifications of the overseas exporters and manufactures, and maintaining inbound and outbound records for the imported foods and food additives. In the event that imported foods are found to be substandard or are likely to endanger human health, the importer has a statutory obligation to recall all of its imported products.

STIFFER PENALTIES

No matter how comprehensive, the Food Safety Law 2015 relies on the cooperation and self-discipline of food producers and operators. Therefore, the amendments also substantially increase punishments on violations. The legal representative or key responsible person of any food producer may be subject to government interrogation, and face detention for up to 15 days for serious violations, i.e., manufacturing or distributing substandard infant foods, foods with toxic ingredients, or foods banned by the law.

The Food Safety Law 2015 reflects the central government’s ambition to keep food safety issues out of our daily lives. However, the preventive mechanisms taken under the new amendments – the self-inspection system and food traceability system – impose substantial burdens on food producers and operators, especially small or mid-sized enterprises. The amendments also show little advancement on the regulation of small food workshops and vendors, which may potentially be the sources of the problems.Nevertheless, from the Food Hygiene Law 1995 to the Food Safety Law 2015, we have seen great advancements on food safety regulation, which will require a continuing effort from government as new problems emerge.

Tess Yang is an associate with AllBright Law Offices in Shanghai

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