Viewpoint | From the "tanker mixed loading" incident, talk about food safety responsibility
Published:
2024-07-12
Recently, the investigation report published by the Beijing News, "Investigation on Chaos in Tanker Transportation," revealed that there is a situation in the tanker transportation industry where food liquids and chemical liquids are mixed and not cleaned. This paper analyzes the legal liability issues related to food safety involved in the incident in combination with relevant laws and regulations, judicial interpretation and so on.
Recently, the investigation report "investigation on chaos in tanker transportation" published by the Beijing News revealed that food liquids and chemical liquids were mixed and not cleaned in the tanker transportation industry. Some tankers transported edible oil after coal-to-oil and other chemical liquids. Some tanker drivers even said that this had become an open secret in the tanker transportation industry. Once the report was published, it aroused widespread concern about food safety. This paper analyzes the legal liability issues related to food safety involved in the incident in combination with relevant laws and regulations, judicial interpretation and so on.
The storage and transportation of 1. edible oil is within the scope of the the People's Republic of China Food Safety Law, and there are clear requirements for transportation and loading containers.
Item (V) of Article 2, paragraph 1, of the the People's Republic of China Food Safety Law stipulates that the storage and transportation of food shall comply with the Food Safety Law. Article 33, paragraph 1, item (VI), stipulates that containers, tools and equipment for storing, transporting, loading and unloading food shall be safe, harmless, kept clean, prevent food contamination, and meet the special requirements such as temperature and humidity required to ensure food safety. Food shall not be stored or transported together with toxic and harmful articles. Edible oil belongs to the scope of food, and the above-mentioned requirements for food transportation and loading containers shall apply.
Article 4.1 of the Code for the Transport of Edible Vegetable Oil in Bulk [GB/T30354-2013 (Recommended Standards)] stipulates that exclusive containers shall be used for the transportation of edible vegetable oil, and non-edible vegetable oil tankers and containers shall not be used for transportation. Article 5.4 stipulates that special personnel shall be assigned to be responsible for the cleaning, maintenance and management of transport containers, and professionals shall be responsible for checking and confirming whether the cleanliness of the containers meets the requirements and whether the transport conditions are permitted, and records shall be made at the same time. Although this norm is a recommended norm, according to the stipulation that "if there is no mandatory national standard, it shall be performed according to the recommended national standard" in the first item of the first paragraph of the first paragraph of Article 511 of the Civil Code, the recommended standard is second only to the mandatory standard and needs to be implemented in the contract performance. No matter from the technical point of view of the transportation industry or the performance standard of the transportation contract, "Edible vegetable oil bulk transport code" should be consciously abide by the implementation.
2. administrative responsibility for not carrying out edible oil transportation as required
Article 132 of the the People's Republic of China Food Safety Law stipulates that anyone who violates the provisions of this law and fails to store, transport, load and unload food as required shall be ordered by the food safety supervision and administration departments of the people's government at or above the county level in accordance with their respective responsibilities., Give a warning; if it refuses to make corrections, it shall be ordered to suspend production and business, and impose a fine of 10,000 yuan up to 50,000 yuan; if the circumstances are serious, the license shall be revoked.
3. edible oil production and sales units may bear criminal responsibility
The mixed vehicles disclosed in the relevant reports transport coal-to-liquid, which is non-toxic hydrocarbons but often contains unsaturated hydrocarbons, aromatic hydrocarbons and sulfides. When edible oil is mixed with these coal-to-liquid, eating this mixed oil may lead to poisoning, hematopoietic disorders, endanger the respiratory and digestive systems, and seriously damage health.
Article 144 of the the People's Republic of China Criminal Law stipulates that anyone who mixes toxic or harmful non-food raw materials into food produced or sold, or sells food that is known to be mixed with toxic or harmful non-food raw materials, shall be sentenced to fixed-term imprisonment of not less than five years and a fine; if it causes serious harm to human health or has other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years and a fine; if it causes death or if there are other particularly serious circumstances, it shall be punished in accordance with the provisions of Article 141 of this Law.
Article 11 of the interpretation of the Supreme People's court and the Supreme People's Procuratorate on Several Issues concerning the application of law in handling criminal cases endangering food safety stipulates that in the process of food production, sales, transportation and storage, those who mix toxic and harmful non food raw materials or use toxic and harmful non food raw materials to produce food shall be convicted and punished for the crime of producing and selling toxic and harmful food in accordance with the provisions of Article 144 of the criminal law. Article 12 stipulates that in the process of food production, sales, transportation, storage, etc., the use of food packaging materials, containers, detergents, disinfectants, or tools and equipment used in food production and operation that do not meet food safety standards, causing Food is contaminated, in accordance with the provisions of Articles 143 and 144 of the Criminal Law, conviction and punishment for the crime of producing and selling food that does not meet safety standards or the crime of producing and selling toxic or harmful food.
Regarding toxic and harmful substances, Article 9 of the "Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Laws in Handling Criminal Cases Endangering Food Safety" lists three items: "(I) are prohibited by laws and regulations from being used in food production due to endangering human health. Substances added and used in business activities; (II) due to endangering human health, substances on the list of non-edible substances that may be illegally added to food, the list of substances that may be illegally added to health food, the banned pesticides announced by the relevant departments of the State Council, and the list of drugs and other compounds prohibited in food animals; (III) other toxic and harmful substances." For example, "clenbuterol" is clearly included in the list of non-edible substances, banned in feed and livestock production. According to media reports, the coal-to-liquid in this incident is a chemical liquid, which is inedible and harmful to human health, at least in line with item (III) "other toxic and harmful substances".
The crime of producing and selling toxic and harmful food is a crime. As long as the act is carried out, whether it causes harmful consequences or not, it constitutes a crime. Regarding the responsibility of the edible oil production and sales unit, if the above-mentioned unit is aware of the incident or has negligence, it constitutes the crime of producing and selling toxic and harmful food.
How should the "mixed cooking oil" already sold in the 4. be handled?
Article 63 of the the People's Republic of China Food Safety Law stipulates that if a food producer finds that the food it produces does not meet the food safety standards or has evidence that it may endanger human health, it shall immediately stop production, recall the food that has been sold on the market, notify the relevant Producers, operators and consumers, and record the recall and notification.
If a food business operator discovers that the food it operates has the circumstances specified in the preceding paragraph, it shall immediately stop the business, notify the relevant producers and consumers, and record the suspension of business and notification.
If a food producer or business operator fails to recall or stop operating in accordance with the provisions of this article, the food safety supervision and administration department of the people's government at or above the county level may order it to recall or stop operating.
5. Summary
As the old saying goes, food is the most important thing for the people, but from "gutter oil" to "tanker mixed loading" incidents, frequent food safety problems have exposed the indifference of some enterprises and individuals to people's health and life, and their disregard for the moral bottom line. In view of the chaos of tanker mixing, the Food Safety Office of the State Council has set up a joint investigation team to thoroughly investigate the relevant problems in the transportation of edible oil tankers, hoping to give a satisfactory answer to the public and investigate the legal responsibility of the relevant responsible persons in accordance with the law.
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