Saturday, February 28, 2009

China Enacts Sweeping, Tough Food Safety Law

The Standing Committee of China's National People's Congress passed a brand new Food Safety Law on February 28, 2009, and the law is set to become effective on June 1, 2009.  Without having a chance to read it carefully, I have some preliminary comments as follows:

1.  It repeals its predecessor law--the PRC Food Safety Law (1995) in its entirety.  With food safety disasters occurring back-to-back, tainted milk, pig organs, rice, and everything one can think of, the Chinese society in general has been facing a battle of life and death with respect to food safety.  The legislature acted quickly to pass this brand now law.  It is noteworthy that the Standing Committee did not just fiddle with the old law and try to amend it; rather, it saw too many problems in the provisions of the law, and saw the self-evident proof of deficient enforcement.  This really shows the resolve to get food safety under control.  I think this resolve and the NPC's solution are laudable in light of the dire food safety situation of late.

2.  Since the predecessor law is repealed by this law, all the related regulations, measures, rules, guidelines, opinions, etc. pursuant to the old law are also repealed.  This is good news.  With so many ministries, departments, divisions all responsible for food safety, what ended up in reality was that nobody was effectively responsible for enforcing food safety and ensuring health and safety of the Chinese people, which caused collateral damage around the world.  Now, the situation might be a little better under the new law as explained in the following.

3.  Food Safety Commission .  The new law, Art. 4, authorizes the State Council to establish the Food Safety Commission, which , presumably, oversees and coordinates the entire food safety law enforcement.  I say "presumably" because the law itself does not clearly define the authority and limitation of the Commission.  As stated above, one of the lethal shortcomings of the prior Food Safety Law is that there was no centralized authority to be ultimately responsible, which in a sense created a  responsibility vacuum.  In order to remedy that problem and based on the Chinese governance model, creating one centralized entity, like the Food Safety Commission, is the solution to that problem.  Will it be THE solution?  Will it remedy the enormous food safety problems in China?  I don't know, but I surely hope it would before all Chinese people kill themselves by eating tainted whatever.

4.   The law is comprehensive.  In ten (10) Chapters and one hundred and four (104) articles, it encompasses special provisions on food safety risk assessment, food safety standards, food production, food inspection, food import & export, food safety disaster management, local supervision and management, and liability.  New areas of interest in this law include special attention to food additives, the creation of a food safety information database, civil and criminal liability.  The real teeth of the law are the private right of action.  Consumers can sue for damages, and exemplary damages up to ten (10) times of the actual damage.  Yes, ten (10) times.  See Art. 96.

5.  Will the corresponding regulations come out soon?  A pattern has been developing lately in the Chinese law making process.  The NPC passes important yet controversial laws, but implementing regulations come out very slowly.  This has happened to the Enterprise Bankruptcy Law and the Anti monopoly Law.  Will this happen to the Food Safety Law?  I hope not.  Food safety is unlike the initiation of bankruptcy proceedings, nor like administrative monopolistic behaviors, in that disasters can strike immediately on a very large scale if food safety is compromised.  Food safety cannot wait. 

For other comments on the new law, read this.

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