On the Perfection of China's Food Safety Legal System from a Case of Professional Counterfeit

Abstract: Food safety is a global public health problem, this paper takes a food safety case as an example, analyzes the legislation and law enforcement problems existing in China's food safety legal system from the perspective of lawyers, and puts forward suggestions for improvement.

Keywords: food safety occupational anti-counterfeiting legal construction

Since the "the People's Republic of China Food Safety Law" was revised and implemented in 2015, it has had a huge impact on the lives of residents and has become a social legal hotspot. It has also made the construction of my country's food safety legal system take shape. The author takes a case of professional anti-counterfeiting handled by himself as an introduction, puts forward the common legal problems in the field of food safety, and then puts forward some suggestions on the construction of food safety legal system.

 
1. case analysis

Sui, Zhang and Liu bought 250 grams of Xinhai brand roasted shrimp online at Xinhai Company's Tmall online store in 4. and May 2017. They bought more than 1500 boxes, with a total price of more than 100,000 yuan. Subsequently, the three men filed lawsuits in Weihai City, Hangzhou City, and Jinan City, where they resided, claiming that Xinhai Company's illegal use of additives caused sulfur dioxide to be detected in roasted shrimps and caused physical damage after eating. The three cases all made ten times the claim. The subject of the lawsuit exceeded one million yuan. The main evidence provided by the three people in the case was the self-commissioned appraisal report. The report showed that sulfur dioxide was detected in roasted shrimp, which did not meet the requirements of 09.04.03 of the National Food Safety Standard for the Use of Food Additives (GB2760-2014). Sulfur dioxide is not allowed as an additive.

Xinhai Company is a leading food production enterprise in the local area and has won many awards. After the occurrence of the case, the impact was bad. In the view of enterprises, the idea of adding sulfur dioxide to grilled shrimp is nonsense, which not only has no technological effect on grilled shrimp products, but also leads to substandard food. The process of roasted shrimp production is raw material acceptance, thawing, removal of shrimp head and shrimp skin and other pretreatment, seasoning, drying and baking. The seasoning to be added is white granulated sugar, edible salt and monosodium glutamate, and the preservative is potassium sorbate. In addition, no other substances need to be added.

However, in roasted shrimp products, there is in fact the possibility of detecting sulfur dioxide in the industry, which is why? The new sea company and the author research and access to information found that the raw material of roasted shrimp is sea shrimp, sea shrimp fishing must use sodium metabisulfite as a preservative, through the generation of sulfurous acid to play a role in preservation, increase the bright color of aquatic products, inhibit browning and microbial reproduction. If sodium metabisulfite is not added, the volatile basic nitrogen (freshness) of shrimp crabs must exceed the standard. This is a phased problem in the scientific development of food preservation, and it is also a common practice in the world. Japan, which has a developed marine food industry, has no other solution to this. In the "National Food Safety Standard for the Use of Food Additives" (GB2760-2014), Class 09.01 Food Additives for Fresh Aquatic Products, it is stipulated that sulfur dioxide, potassium pyrosulfite, sodium pyrosulfite, sodium sulfite, sodium bisulfite and sodium sulfite can be used as additives in seawater shrimps and crabs and their products. The functions are bleach, preservative and antioxidant. The maximum usage is 0.1 g/kg. In the remarks, the maximum amount of use is based on the residual amount of sulfur dioxide ". After a chemical reaction, sodium metabisulfite produces sulfur dioxide, which remains in marine shrimps and crabs. Based on this, the reason for the detection of sulfur dioxide in seawater shrimps and crabs and their products has been clear. It is not that enterprises add sulfur dioxide as an additive in the process of processing roasted shrimps, but that sulfur dioxide remains in fresh shrimps as raw materials for processing roasted shrimps.

So whether the case involves grilled shrimp products are unsafe food, the final result of the case, the author will gradually analyze and reveal in the following.

Legal issues reflected in 2. cases

In the process of the author's participation in the above-mentioned cases, in addition to the analysis and elaboration of the controversial focus that the lawyer agent itself needs to carry out, more is to find that there are many legal issues to be studied and resolved in the field of food safety.

(I) national standards exist in the development of unscientific situation

Taking this case as an example, smoked and roasted aquatic products inevitably contain various additive ingredients brought in from raw fresh aquatic products. However, the National Food Safety Standard for the Use of Food Additives (GB2760-2014) does not consider this situation. Sodium metabisulfite is allowed to be used as food additives for Class 09.01 fresh aquatic products, but sulfur dioxide is not allowed to be detected in Class 09.04.03 smoked and roasted aquatic products. Therefore, the national standard itself is contradictory, as a result, it cannot be achieved in practice. The author found that in the routine inspection announcements issued by the Food and Drug Administration at all levels across the country, there are a large number of smoked and roasted shrimp and crab foods that are detected with sulfur dioxide and are judged to be unqualified in quality. This unqualified determination is out of production. Practice, for production enterprises, it cannot be further corrected technically, and it constitutes a misleading food insecurity for consumers.

The State Food and Drug Administration may be aware of the above problems. In item 22 of the detailed rules for the implementation of national food safety supervision and sampling inspection (2017 edition), the inspection item of "sulfur dioxide residue" is not applicable to seawater shrimp and crab products. It is based on the fact that the fresh raw materials of seawater shrimp and crab products have sulfur dioxide residue due to the unsolvable preservation technical problems. The sulfur dioxide residue of processed products has become an immeasurable detection problem, however, the rules are not yet fully understood and implemented.

National standards are divided into two types: mandatory and recommended. Compulsory standards are named GB, and the relevant administrative departments of the State Council shall propose, organize drafting, solicit opinions and technical review according to their duties. [1] The author believes that the national standard is a serious measurement standard, which is of great significance to the protection of personal health, life and property safety, and ecological environment safety. It should first be based on science, at least at the technical level. It can be operable, otherwise it will make the standard implementer at a loss.

Problems in (II) Food Safety Legislation

my country has initially established a food safety legal system dominated by the Food Safety Law, with the General Principles of Civil Law, the General Principles of Civil Law, and the Tort Liability Law as the general leader, supplemented by such as the Product Quality Law, The relevant provisions of the Consumer Rights Protection Law, the Criminal Law and other laws on food safety constitute, and the legislation has begun to take shape, however, there are still many problems that need to be improved. The main problems that can be found in this case are:

1, the concept of food safety is unclear

In the current laws and regulations, the criteria for judging food insecurity are relatively general. Article 150 of the Food Safety Law stipulates that "food safety means that food is non-toxic and harmless, meets the due nutritional requirements, and does not cause any acute, subacute or chronic harm to human health". The definition is relatively broad. In judicial practice, there is no clear legal basis for the distinction between substandard food and unsafe food. Most cases mainly rely on the discretion of judges, and different judgments in the same case are common. Take the roasted shrimp involved in the case as an example. Some judges in Hangzhou believe that it contains residual sulfur dioxide, which does not meet the national standards. They speculate that long-term consumption must be harmful to the human body. Therefore, it is an unsafe food and the ten times compensation rule should be applied. Some judges in Shandong believe that the roasted shrimp involved in the case can only be substandard food without considering the reasons for sulfur dioxide introduction, there is no scientific conclusion to support whether it is harmful to the human body.

The author believes that whether the food is qualified or not should be based on the national compulsory standard, and the food that does not meet the standard is the unqualified food; whether the food is safe or not should be based on whether it is harmful to human health, and it should be concluded by scientific risk assessment and scientific appraisal. There is a certain connection between the two, but they should not be confused.

Lack of systematic legislation [2]]

For example, the punitive damages clearly stipulated in the Food Safety Law are a right to claim compensation for consumers. The definition of consumers refers to the purchase and use of goods for daily consumption in accordance with the provisions of the Consumer Rights Protection Law. Or the subject of receiving services. The Provisions of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Food and Drug Disputes also stipulates that if a dispute occurs due to food and drug quality problems, the buyer claims rights to the producer and seller, and the producer and seller defends on the grounds that the buyer knows that the food and drug have quality problems and still buys, the people's court does not support it. The resulting problem is that buyers who do not have the identity of ordinary consumers know to buy fake, according to the "Food Safety Law", ten times compensation cannot be applied, and compensation can be awarded according to judicial interpretation.

Specifically in this case, judges in Hangzhou believe that judicial interpretation should be applied, the distinction between buyers and consumers should be relaxed in the field of food and medicine, and no restrictions on the rights of professional counterfeiters in order to purify the market. Some judges in Shandong believe that professional counterfeiters deliberately buy unsafe food for the purpose of making profits, and it is unfair to protect their rights by means of violence, moreover, the organized and regular activities of professional anti-counterfeiting have also caused a waste of social resources, and their behavior should be treated with caution and restricted. The author believes that giving consumers and non-consumer buyers the same rights, although its original intention is to seriously deal with the chaotic food and drug industry, it has given birth to the phenomenon that professional anti-counterfeiting groups use consumer identity to make ten times claims and receive a large number of judicial support, which has formed a certain degree of social harm and should not support this kind of behavior.

(III) Differences in Judgment of Food Safety Disputes in Judicial Practice

With the progress of the rule of law society, but also due to the shortcomings of legislation and the huge social impact of food safety issues, the number of food safety civil disputes has increased significantly across the country, and the results of the judgment are very different. Taking the more extreme professional anti-counterfeiting cases as an example, the Supreme people's Court has never issued a guiding case on professional anti-counterfeiting, and the attitude of local courts is often diametrically opposite, and the author is also dazzled when studying the cases. the seriousness and authority of the law is questioned.

In this case, the reason why professional counterfeiters filed lawsuits in the three courts is to test the judicial attitudes of different courts. Once the "green channel" is found, they will do the same. The final result of this case is indeed different. The court in Hangzhou clearly supports professional anti-counterfeiting, and the judgment standard for food insecurity is very strict. It does not investigate the cause of sulfur dioxide detected in roast shrimp in this case. Xinhai Company has to mediate with professional anti-counterfeiting agents in order to reduce losses and social impact. The courts of Yantai City and Jinan City have carried out detailed reasons for the detection of sulfur dioxide in roasted shrimp. They believe that Xinhai Company did not deliberately add additives that are not allowed by national standards during the production process, and the roasted shrimp involved in the case is not unsafe. Food does not apply ten times punitive damages.

Negative Effects of (IV) Professional Counterfeit

In the process of legal services for food production enterprises, the author found that dealing with professional anti-counterfeiting has become an important part of business. The three people in this case, as plaintiffs, filed dozens of lawsuits in the courts of their respective domiciles, involving many large and medium-sized food companies across the country. The subject matter of the lawsuit was huge, and litigation preservation measures were taken to seal up the accounts, affecting the normal operation of the company.

The author believes that, on the one hand, at the beginning of the rise of professional anti-counterfeiting, it is of positive significance to protect the rights and interests of consumers. Although it is subjectively seeking personal gain, it can have the effect of cracking down on unscrupulous businesses and help to make up for the lack of consumer rights protection; on the other hand, professional anti-counterfeiting targets are mostly large and medium-sized supermarkets and enterprises, and these targets are precisely groups with relatively standardized production and operation, however, the governance effect of professional anti-counterfeiting on micro and small producers and operators with more concentrated violations of laws and regulations is not ideal. Professional counterfeiters also use administrative complaints and other means to blackmail in disguise, which annoys business operators. In order to make huge profits, professional anti-counterfeiting even has the trend of division of labor and cooperation, industrial management, in order to obtain ten times the compensation to buy goods, which essentially violates the civil law principle of good faith.

Suggestions 3. Improving China's Food Safety Legal System]

 
Through the above cases, the author put forward and analyzed the relevant legal issues, through in-depth study of China's food safety related laws and regulations and communication with the judge, put forward the following suggestions:

(I) enhance the unity and coordination of legislation and promote the revision of existing laws and regulations

There are many mutually restrictive provisions in food safety laws, such as Article 123 of the Food Safety Law, Article 49 of the Product Quality Law, and Article 56 of the Consumer Rights and Interests Protection Law. The three laws all belong to the same rank, but the penalties are obviously different and cannot be coordinated with each other, which will lead to unclear law enforcement basis for law enforcement agencies and lack of seriousness in punishment conclusions; another example is that the regulatory subjects of the Food Safety Law and the Criminal Law are inconsistent. The Food Safety Law involves food production, processing, transportation, sales and supervision personnel in the main body, and involves production, sales, transportation, and storage in the process. And other links. However, the scope of food safety stipulated in the Criminal Law is relatively narrow. Only production and sales personnel are stipulated in the subject, and only production and sales are involved in the process. This leads to the fact that some actors should bear criminal responsibility for violating the relevant provisions of the Food Safety Law. When it comes to responsibility, it is impossible to find the corresponding criminal and criminal norms.

These situations listed by the author show that China's food safety legislation is still in the initial stage of development, and we should actively promote the work of food and drug legislation, carry out systematic revision of food safety legislation from a certain height, strengthen the legality review of normative documents of food and drug supervision, and improve public participation in food and drug supervision legislation.

(II) improve national food safety standards

China's food industry has always had problems such as low level of industry standards, incomplete coverage of standards, and unscientific standards.

To improve the scientific nature of standards, we should refer to the mature standards of the United States, Japan and other developed countries in the food industry, pay attention to the forward-looking and dynamic development of the standard system, and improve the problem of lack and lag of standards. Some backward and invalid standards should be discarded in time and new standards should be formulated to adapt to the food safety situation and the continuous development of the food industry.

(III) Improve the Level of Administrative Law Enforcement and Establish the Authority of Administrative Law Enforcement

"It is not difficult to legislate in the world, but it is difficult to enforce the law." In the face of the complex and changeable food safety situation, how to ensure that the administrative supervision agency is in place has become an important issue.

The author believes that it is necessary to achieve strict, standardized, fair and civilized law enforcement, but also to strengthen the restriction and supervision of regulatory power, to attach importance to the quality of the rule of law as the guidance for the selection of law enforcement personnel, to strengthen the education and training of the rule of law for law enforcement personnel, and to generally carry out the establishment of public lawyers and legal advisers to help law enforcement agencies establish law enforcement authority. If law enforcement agencies can have a higher level of law enforcement, it will greatly reduce the probability of food safety cases.

The construction of (IV) honest society is of great significance to the construction of food safety legal system

The reason why the vicious food and drug cases that shocked the whole country have repeatedly occurred in our country has an important relationship with the lack of integrity and the weak construction of the social integrity system.

The author believes that we should build the internal foundation and external environment of moral integrity in the field of food safety, promote the formation of an honest and trustworthy moral atmosphere outside the society, guide enterprise self-discipline, make food practitioners proud of producing high-quality food, and denounce illegal profit-making behaviors such as professional anti-counterfeiting; build a system outside the society, improve the food safety blacklist, and establish a reward and punishment system for trustworthy income and illegal suffering, strong external constraints are created on offenders in all aspects of social management, such as loan financing and financial services.

4. closing remarks

Montesquieu said in the spirit of the law that human security is the supreme law. Safety is the basis of survival, and food safety, which is closely related to survival, is essential. After efforts in recent years, China has made great progress in the field of food safety governance. The Food Safety Bureau is oriented to good development, but there is still a gap with the expectations of the public. The construction of food safety legal system is inseparable from the joint efforts of legislation, law enforcement and the whole society, so that we legal people can contribute to the construction of a better food safety environment.

Comments:

[1] Compilation of National Food Safety Standards, National Center for Food Safety Risk Assessment, China Population Publishing House, 2016

[2] Some Thoughts on Strengthening Food Safety in China, Ge Shaofeng, Social Science, 2012.10

[3] China's safe food strategy system and its countermeasures, Zhang Hucheng, Xu Ning, Jilin Agricultural News, 2013.2

References:

[1] Guide for Safe Use of Food Additives, edited by Zhou Jiahua, Chemical Industry Press, 2010

[2] Food Safety Control, Xin Zhihong, Chemical Industry Press, 2017