Point of view | diet pills contain forbidden ingredients, what should be the crime?
Published:
2024-08-23
With the prevalence of weight loss, there are all kinds of weight loss drugs on the market, but few can achieve the effect of weight loss. In order to meet the market demand and make the weight-loss drugs sold have weight-loss effect, manufacturers and sellers do not hesitate to add ingredients that are explicitly prohibited by the state, such as sibutramine, phenolphthalein and even ephedrine.
1. common diet pills contain forbidden ingredients
With the prevalence of weight loss, there are all kinds of weight loss drugs on the market, but few can achieve the effect of weight loss. In order to meet the market demand and make the weight-loss drugs sold have a weight-loss effect, manufacturers and sellers do not hesitate to add ingredients that are explicitly prohibited by the state,Prohibited ingredients such as sibutramine, phenolphthalein and even ephedrine.
Sibutramine is a central nervous appetite suppressant, which has the effect of suppressing appetite, but may cause serious side effects such as hypertension, increased heart rate, anorexia, and abnormal liver function. After taking diet pills containing sibutramine, the human body will be thirsty, anorexia, do not want to sleep, dizziness, serious can cause neurological disorders and even death. In 2010, because sibutramine can increase cardiovascular and cerebrovascular risks, relevant departments have explicitly stopped the domestic production, sales and use of sibutramine preparations and APIs.
Phenolphthalein in the pharmaceutical as a pharmaceutical raw material, the drug name is phenolphthalein tablets (Phenolphthalein Tablets), mainly for the treatment of habitual, intractable constipation. Excessive or long-term abuse, can cause the human body electrolyte metabolism disorder, serious even can induce arrhythmia. Infants and lactating women are prohibited, children and pregnant women with caution. China's relevant laws clearly stipulate that it is forbidden to add sibutramine hydrochloride and phenolphthalein in food (including health food).
As for ephedrine, it is a precursor chemical, which is widely used in the treatment of allergic diseases, pollinosis, bronchial asthma and spinal anesthesia, which can prevent blood pressure drop. Although ephedrine can speed up metabolism, make people excited for a long time, and reduce hunger, it can indeed play a role in weight loss to a certain extent, but it belongs to the first category of precursor chemicals, and has addiction and withdrawal reactions., Long-term consumption will have headaches, palpitations, insomnia and other problems, causing irreversible damage to the human heart function and nervous system.
How do 2. tell if diet pills are food or medicine?
If the producer adds the above-mentioned prohibited ingredients to the weight-loss drug, does it constitute a crime? The answer is yes, but what constitutes a crime depends on whether the weight-loss drug is a drug or a food (health food). As we all know, weight loss products include both weight loss drugs and weight loss health foods.If the weight-loss drug involved in the case belongs to food (health food), it can be characterized in accordance with the crime of producing and selling toxic and harmful food as stipulated in Article 144 of the Criminal Law; if the weight-loss drug involved in the case has approval documents for drugs, it can be characterized in accordance with the crime of producing, selling and providing counterfeit drugs as stipulated in Article 141 of the Criminal Law.
The biggest difference between drugs and health products is that the former can change or find out the physiological function and pathological state of the body, which is used to prevent, diagnose and treat diseases, while health products belong to the category of food and have no function of treating diseases. According to the "the People's Republic of China Drug Administration Law", as a special commodity, drugs must be approved by the drug regulatory department of the State Council and obtain the drug approval number before they can be produced and marketed. The format of the drug approval number is one letter and eight digits of the national drug approval number. The so-called one-digit letter is the common H (chemicals), Z (traditional Chinese medicine), B (health care drugs), S (biological products), T (in vitro chemical diagnostic reagents), F (pharmaceutical excipients) and J (imported sub-packaged drugs). Therefore, there is no formal approval number on the packaging is not a drug.
Therefore, in a specific case, it is generally possible to judge whether the product is a drug or a health food by the outer packaging of the weight-loss drug involved. The outer packaging of the drug will have the product approval number, the product description has indications or functional indications, usage and dosage and other appearance marks. If the product identification is unclear, it can be judged by the name of the operator to publicize and sell the weight loss products involved. When the product identification is consistent with the external publicity, the product attribute can be determined directly according to the identification. However, when the labeling of the weight-loss drug product involved is inconsistent with the seller's external publicity or the labeling is unclear,It should be in accordance with the production, sales of external publicity of the product performance and combined with the buyer to buy, use the purpose of the product to determine whether it belongs to food or medicine.For example, in the case of "Criminal Trial Reference" No. 1531 "Zhong Mouben Selling Toxic and Harmful Food", the attributes of the products involved cannot be defined by the appearance marks such as the approval document number and product description. Zhong sold the products in the name of "strengthening yang and tonifying kidney", but did not publicize the treatment function and treatment effect. Consumers bought and used the products for the purpose of "sexual health care" rather than treating diseases. Therefore, the products involved in the case should be identified as health food.
Analysis of 3. charges
Crime of (I) production and sale of toxic or harmful food
The crime of producing and selling toxic and harmful food refers to the violation of food management regulations,The act of mixing toxic or harmful non-food raw materials into food produced or sold, or selling food that is known to be mixed with toxic or harmful non-food raw materials.Those who commit this crime shall generally be sentenced to fixed-term imprisonment of not more than five years and a fine; those who cause serious harm to human health or have other serious circumstances shall be sentenced to fixed-term imprisonment of not less than five years but not more than 10 years and a fine; those who cause death or have other particularly serious circumstances shall be punished in accordance with the provisions of Article 141 of this Law, that is, fixed-term imprisonment of not less than 10 years, life imprisonment or even death, and a fine or confiscation of property.
According to relevant judicial interpretations, "toxic and harmful non-food raw materials" mainly include the following:(1) substances that are prohibited by laws and regulations from being added or used in food production and business activities because they are harmful to human health;(2) because they are harmful to human health, the 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;(3) other toxic and harmful substances. "Knowing" should be identified by combining subjective and objective factors such as the actor's cognitive ability, food quality, purchase or sales channels and prices.
The crime of producing and selling toxic and harmful food is an intentional crime,The perpetrator is required to knowingly mix toxic and harmful non-food raw materials into the food produced and sold, or knowingly sell food mixed with toxic and harmful non-food raw materials.It should be noted that the crime does not require the perpetrator to have definite and specific knowledge of the specific ingredients of illegal food raw materials. In determining whether the perpetrator subjectively "knowingly" not only combines the confession of the criminal suspect or defendant, witness testimony, and victim statement, but also combines the perpetrator's age, education, occupation, job position, work experience, living environment, and transaction Price, supply channels, familiarity with the food industry, whether the relevant departments conduct inspections, reminders, penalties, or relevant records of the platform prohibiting sales, etc, comprehensive consideration of whether the perpetrator is knowingly. Generally speaking, "knowing" can be determined in the following circumstances, except where there is evidence to the contrary and verified to be true:(1) long-term engagement in the production, planting, breeding, sales, transportation and storage of relevant food and edible agricultural products, failing to fulfill the obligation of ensuring food safety in accordance with the law;(2) without legal and valid purchase certificate, and unable to provide or refuse to provide the relevant food sources for sale;(3) Purchase or sell at a price significantly lower than the market price without reasonable reason;(4) Continue to sell under the condition that the relevant department issues a ban or food safety warning;(5) Administrative punishment or criminal punishment for the implementation of acts endangering food safety, and the implementation of the same behavior;(6) Other circumstances sufficient to identify the perpetrator's knowledge.
The main points of common defense are:1. The perpetrator does not know that the non-food raw materials he added are toxic and harmful, or does not know that the food he sells is mixed with toxic and harmful non-food raw materials, and does not have subjective intention. 2. The harm of the added non-food raw materials to the human body is unknown, the safety is not clear, and the harm caused is not great, so it is not considered a crime. 3. Due to the lack of important objective evidence such as the identification of material evidence seized on the spot, it is impossible to prove that toxic and harmful food is produced or sold, and the evidence for accusing the crime is insufficient. 4. The content of toxic and harmful substances is low, the sales quantity is small, the amount is small, the circumstances are significantly minor, and the harm is not great, which does not constitute a crime. 5. There is no causal relationship between the actor's production, sales behavior and the harmful consequences.
(II) the crime of producing, selling or providing counterfeit drugs
Whoever produces or sells counterfeit drugs shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also be sentenced to a fine; if it causes serious harm to human health or has other serious circumstances, it shall be sentenced to fixed-term imprisonment of not less than three years but not more than 10 years and shall also be fined; if it causes death or has other particularly serious circumstances, it shall be sentenced to fixed-term imprisonment of not less than 10 years, life imprisonment or death, and death, and shall also be fined or confiscation of property. Any person in a drug-using unit who knowingly supplies a counterfeit drug to another person for use shall be punished in accordance with the provisions of the preceding paragraph.
The so-called counterfeit drugs refer to drugs and non-drugs that are counterfeit drugs or treated as counterfeit drugs according to the provisions of the Drug Administration Law. According to Article 98 of the Drug Administration Law, a counterfeit drug is one of the following circumstances: (1) The ingredients contained in the drug are inconsistent with the ingredients specified in the national drug standards; non-drugs are (II) passed off as drugs or other kinds of drugs are passed off as such drugs; drugs that (III) deterioration; (IV) drugs indicate indications or functional indications beyond the prescribed scope.
The crime of producing, selling and providing counterfeit drugs also requires the perpetrator to subjectively know that the drugs produced, sold or provided are counterfeit drugs. In practice, the subjective knowledge of the actor is mainly from the following aspectsThe subjective intention of the actor is determined by comprehensive judgment: the actor's experience, cognitive ability, drug quality, purchase channels and prices, sales channels and prices, and production and sales methods.According to the relevant judicial interpretation, in any of the following circumstances, it can be determined that the perpetrator has the subjective intention to commit the relevant crime, except where there is evidence to prove that it does not have the intention: (1) the price of the drug is obviously different from the market price; it is (II) to purchase drugs from unqualified producers and sellers, and cannot provide legal and effective proof of origin; (III) evades or resists supervision and inspection; (IV) transfer, concealment, or destruction of the drugs involved in the case, the records of the purchase and sale; (V) have been punished for committing illegal and criminal acts endangering drug safety, and have committed similar acts; (VI) other circumstances sufficient to determine the subjective intention of the perpetrator.
Common defense points:1. Whether the drugs involved are fake drugs. (2) Subjectively unknowable. 3, did not find physical evidence, lack of quality inspection basis, can not come to the test conclusion that the drugs involved are fake drugs. 4. The inspection agency lacks the inspection standards and inspection methods for this drug and cannot identify this drug. There is no causal relationship between taking fake drugs and death and other harmful consequences.
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