Compared with the Food Safety Law, which came into effect on June 1 2009, this draft has made major amendments and supplements to the existing laws from six aspects: implementing the results of the reform of the supervision system and the transformation of government functions, strengthening the implementation of the main responsibility of enterprises, strengthening the implementation of the responsibility of local governments, innovating the supervision mechanism, improving the social governance of food safety, and severely punishing serious violations of laws and regulations, and at the same time increasing the food online trading and food safety supervision system.
Why did you "practice the law" for four years?
However, before she began to take action against the US Food Safety Law, we had called and urged it a thousand times. Why should we make major changes after only four years of implementation?
"The Food Safety Law was passed in February 2009 and implemented in June of that year. It was put on the government's revised agenda in just over four years, indicating that the food safety problem in China has become quite serious. Food safety, like environmental pollution, is a very serious social problem at present. Now there is a saying in the society that eating meat prevents hormones, being vegetarian prevents toxins, and drinking water prevents elements. It seems that no matter what you eat, there are unsafe factors, reflecting the fear of ordinary people. " Hu Jihua, inspector of the Civil Law Office of NPC Municipal Law Committee, told the China Business Daily reporter.
According to Cao Sanming, executive vice president of China Consumer Protection Law Research Association, "Our current Food Safety Law was promulgated by the National People's Congress Standing Committee (NPCSC) in February 2009. Before that, we implemented the Food Hygiene Law passed by the National People's Congress Standing Committee (NPCSC) 1995 in February. The reason why the Food Hygiene Law was revised into the Food Safety Law should be said that a series of major food safety accidents gave birth to this law. Since 2000, several major food safety accidents have occurred in China, including the moon cake incident in Nanjing Guanshengyuan, the dichlorvos incident in Jinhua ham in 2003, the inferior milk powder incident in Fuyang in 2004, the Sudan Red incident in 2005, the red-hearted duck egg incident in Chenhualiang in 2006, and the Sanlu milk powder incident with the largest scope and the heaviest loss in 2008. It is these major food safety accidents with great social influence and strong public reaction that contributed to the birth of the Food Safety Law. "
The Food Safety Law regulates the food safety supervision system, provides for the establishment of unified, authoritative and mandatory food safety standards, and formulates food inspection system, food additive inspection system, health care product management system and food advertisement management system. At the same time, it also stipulates the relevant legal responsibilities, the most commendable of which is "one fake and ten penalties", that is, on the basis of the original Consumer Protection Law, "one fake loses one". In a word, the legislative purpose of food safety law is to form a unified supervision system from field to table to ensure food safety.
After the promulgation of the Food Safety Law, major food safety accidents still emerge one after another. For example, the clenbuterol incident broke out on 20 1 1. At that time, it was found that lean meat was fed to pigs in some areas of Henan Province, and the pork produced would be harmful to human body. Since 20 12, there have been dead pork incidents in Guangdong, Zhejiang, Shandong and other places, among which the total amount of dead pork handled by a farmer in Pingdu, Shandong Province is as high as 6.5438+0.07 thousand Jin in a few years; A black slaughterhouse in Shenzhen sells more than 10 thousand kilograms of dead pork every day. Another widespread food safety incident is the gutter oil incident. Part of the waste oil is processed by waste oil recovered from canteens and part by waste from slaughterhouses. "
"What's the problem? There are strict laws, why are there still major food safety accidents? Is it poor supervision, or is there something wrong with our management system and administrative supervision system? Or is our legal responsibility punishment not enough? Now the State Council's food safety regulatory agencies have made appropriate adjustments, and it will take time to test. Some loopholes in our legal system also need to be filled. In other words, how should we increase the punishment in terms of legal responsibility? " Cao Sanming said.
When it comes to the revision of the Food Safety Law, Feng Yuan, director of the emergency management department of the US Food and Drug Administration, told the China Business Daily that an important reason is that the "core issue" of food safety has not been highlighted. He pointed out that the food safety problem in China is different from that in foreign countries. The major food safety incidents in foreign countries are basically biological, while the problem in China is that some people are driven by interests and engage in illegal activities without conscience. This problem has not been fundamentally solved.
"Our food safety problems are actually not fully managed. This time, the institutional system reform in the State Council changed the diversified classified and hierarchical management of the food industry into centralized management. But from a local point of view, whether it will be effective to divide decentralized management into centralized management, we still have to make a question mark. At present, advanced countries in the world have adopted a combination of centralized management and decentralized management. For example, the management of eggs can be divided into imported ones. Who will manage the domestic eggs with shells? Who will take care of the eggs after they are beaten? Therefore, the key is not who is in charge, but how to coordinate and unify, clarify powers and responsibilities, and how to implement responsibilities. Therefore, we also put forward some corresponding opinions and suggestions on the revision of the food safety law this time. " Feng Yuan said.
There are still many defects in the Draft for Review.
According to Li Weimin, Deputy Secretary-General of China Consumer Protection Law Research Association, the Draft for Review added 30 articles on the basis of the original law 104, which can be said to be a major adjustment to China's food safety legislation. However, judging from the interpretation of legal provisions, the Draft for Review is not very standardized at present, and there are still some defects in standardization and accuracy.
Li Weimin pointed out that the first chapter of the current Food Safety Law sets forth the scope of adjustment, but the scope of adjustment only includes the production link and business link, excluding the source link of food safety. The five aspects listed in the Draft for Review still cannot cover the ever-changing changes brought about by the development of food science, such as new food varieties such as genetically modified foods, which cannot be adjusted by this law. "So my amendment to the first chapter is that it is best to use the principled provisions on the scope of legal adjustment, rather than the currently listed provisions. Because the production and operation of food-related raw materials are too complicated to cover all the adjustment ranges. "
Li Weimin also believes that although the title of Chapter III of the Draft for Review is food safety standards, it is actually to formulate principles and norms of food safety. Food standards should be quantified to specific indicators. Therefore, Chapter III food safety standards should be changed to norms or principles for formulating food safety standards. In addition, in the chapter of production and operation, small workshops for food production and processing, small food stores, small restaurants and food vendors are stipulated. Engaged in food production and marketing activities shall meet the food safety requirements stipulated in this law that are suitable for the scale and conditions of its production and marketing. Li Weimin believes that the word "small" should be deleted. There is no standard for the word "small" in small workshops and small food stores, which is difficult to grasp in practice and cannot be quantified, which is easy to cause ambiguity.
The expression "small workshop, small food store and small restaurant" is actually discriminatory in language logic. Just because the enterprise is small, it cannot be concluded that it does not have the equipment and conditions required by the Food Safety Law. The law should not put small workshops, small food stores and small restaurants in separate areas. This practice violates the basic principle that we now require food safety as a whole. "
Regarding food inspection institutions, the Draft for Review stipulates that food inspection activities can only be carried out after obtaining qualifications in accordance with relevant national certification and accreditation regulations. Li Weimin objected: "Only qualified food quarantine departments can do food inspection, which is a defect. My suggestion is that food inspection must be unified to the inspection department set up by the government, but it can be sent for inspection at different levels. If something goes wrong, everyone can send it for inspection, which will produce many different test results, and at the same time breed corruption, which invisibly increases the huge burden for food enterprises. Therefore, food inspection must be unified in the authoritative norms of the government, rather than checking and punishing as long as it is qualified. "
Another expert suggested that the "Draft for Review" put forward separate management in terms of legal liability, that is, after a food safety accident, quality inspection, monitoring, industry and commerce, health and other departments can be in charge, which may easily lead to confusion in punishment. "At present, it has been determined in legislation that the State Council will set up a food safety committee for supervision, and the state will set up a food safety committee. What is the necessity for all departments to participate in supervision? It is precisely because food safety accidents can be managed by any department and ignored by any department that food safety accidents are repeatedly prohibited. It is recommended to unify all supervision, inspection and punishment related to food safety to the Food Safety Committee established in the State Council to prevent kicking the ball. " Li Weimin said so.
Legal convergence is a big problem.
The reporter noted that the Law on the Protection of Consumers' Rights and Interests just passed in the National People's Congress Standing Committee (NPCSC) will be implemented on March 15 next year, and the amendments in the draft food safety law overlap with the provisions of the new consumer law in some places. In addition, regarding the convergence, coordination, integration and unification of laws, how will laws with a large number of overlapping relationships, such as food safety law, agricultural product quality safety law, import and export commodity inspection law and animal and plant quarantine law, be connected?
Hu Jihua, inspector of the Civil Law Office of the NPC Law Committee, who participated in the revision of the Food Safety Law, said that the regulation of online sales platforms in the Food Safety Law is not quite consistent with the "elimination method". The Consumer Law stipulates that online platform sales of goods have the same responsibility as rental counters and exhibition counters and must be paid in advance. Considering the particularity of the online sales platform, the "Draft for Review" lists the sales of the online platform as a separate specification, that is, the online platform should fulfill the obligation of review. If the seller provides the real address, name, address, etc. The platform allows consumers to seek compensation from the store. Of course, if the information provided by the store is untrue, consumers can seek compensation from the online platform.
"The Consumer Protection Law stipulates the principle of unreasonable return of online sales. There is no similar provision in the draft Food Safety Law. This is because the food is special. For example, the European Union stipulates that flexible packaging products in food cannot be returned without reason. In addition, I noticed that the warning recall system proposed by the draft for review was basically consistent with the Consumer Protection Law. The draft does not see the problem of inversion of the burden of proof. It is very difficult for consumers to obtain evidence. Whether the food safety law should stipulate the inversion of the burden of proof and in which food fields consumers can be exempted from the burden of proof should be carefully considered. "
Hu Jihua also said that if food is falsely advertised to deceive consumers, the penalty for submitting the draft Food Safety Law is obviously much lighter than that of the Consumer Protection Law. If, in violation of the provisions of the Food Safety Law, the food safety supervision and management department or the agency responsible for food inspection, food industry associations and consumer associations recommend food to consumers by advertising or other forms, the illegal income shall be confiscated by the relevant competent department, and the directly responsible person in charge and other directly responsible personnel shall be taken according to law.
Feng Yuan, director of the emergency management department of the US Food and Drug Administration in Beijing, stressed that in the revision of the Food Safety Law, there is always an unclear issue, that is, the division between food and agriculture. The current food safety law introduces two concepts, one is food and the other is edible agricultural products. At present, there are two laws on whether eating agricultural products is food or not. The Law on Quality and Safety of Agricultural Products regulates edible agricultural products, and the Law on Food Safety regulates food. "What is the relationship between the two? Neither law clearly stipulates it. This revision still does not clearly define the division of power. In the future, we and the agricultural sector will have overlapping responsibilities in the management process. At present, Beijing is negotiating the division of responsibilities with the agricultural sector, especially in the management of edible agricultural products before and after entering the market. Because once it enters the food market, if it is food, it is necessary to implement the licensing system in accordance with state regulations, while agricultural production does not implement the licensing system. Then, after entering the market with licensing system, what about products without licensing system? Who will supervise? In the current law enforcement and administrative management, this contradiction has accumulated a lot. "
To this end, Feng Yuan suggested that the convergence of the Food Safety Law and the Agricultural Products Quality Safety Law should be done well, and the convergence of the two laws should be refined. If it is not refined, it will be very difficult to operate in practical work, and it is easy to appear "wrangling" phenomenon.
"Since the implementation of the Food Hygiene Law from 1982, the laws related to food supervision have formed a relatively scattered legal framework. Coupled with some administrative regulations and departmental rules, it is conceivable how many thorny problems judges will encounter in their work. The subjects of these laws and regulations involve market subjects, production and operation subjects and consumption subjects. At present, social organizations and social groups have also been put forward, which should be said to be quite complicated. I think there is a problem of multi-law unification and multi-law integration. " Wei, director of the Economic Law Office of the former Political and Legal Committee, said this.
He also suggested that the United States have a federal food, drug and cosmetic bill to uniformly supervise food, drugs and cosmetics. Should we also consider integrating the supervision of food and drugs to form the Food and Drug Law? In fact, the current two regulatory agencies are one, namely the State Food and Drug Administration. In the implementation and construction of the law, which direction will we integrate in the future, so that our legal system will be more unified and the allocation of resources will be more reasonable, and there is a lot of room for discussion.
(Reporter Li Yuanfang)
shut up shop
Cross management needs to be solved as soon as possible.
"From the perspective of resource integration of the Food Safety Law, we must integrate the resources of the entire administrative power according to the requirements of our current system. The contents of our integration this time include: Beijing food research may be managed by the former Food Safety Committee and the Office of the Food Safety Committee, which is mainly responsible for comprehensive coordination and comprehensive supervision, and then each department will take its own responsibilities. The US Food and Drug Administration in Beijing consists of five departments. The former Beijing Food Safety Committee was changed to the Beijing Food and Drug Safety Committee, with an office as a comprehensive coordination department. "
According to Feng Yuan, "In the past, the five departments of our regulatory power could add up to tens of thousands or even tens of thousands of people. At present, the total establishment of administrative law enforcement personnel is only 2500. In this case, diversification or centralized management is not the key issue. The key lies in the clarity of responsibilities and the division of responsibilities after we integrate resources. "
Regarding the operability of the law, Feng Yuan also proposed that "the draft for review requires an evaluation system for food and food-related products. There are thousands of food-related products. If all assessments are made, you can imagine what the results will be. " ? I think it should be the key products and key production processes related to food, which have an important relationship with the life and health of consumers. Security evaluation can be carried out, and directory management can be implemented. If you don't have a catalogue and take care of everything, you will fall into the misunderstanding of blind obedience. "
Feng Yuan also pointed out that the food safety law has been implemented for more than four years, and the problem of filing enterprise standards has not been well solved. At present, all food production enterprises are filed in the provincial health administrative departments, and the licensing, supervision and management of food production have also changed from the former Quality Supervision Bureau to the current US Food and Drug Administration. "We now require enterprises to record their standards and do not undertake substantive review of the contents of the record. Therefore, under the state of production license, there is inconsistency between the filing department and the regulatory department. In addition, there is the lack of timely communication between information, which leads to the inability of production enterprises to start work. The standards of production enterprises fight between departments, the health department cuts in from the perspective of hygiene, and the food and drug department cuts in from the perspective of safety, so there will be contradictions between the two standards. Enterprise standards should be filed with the department responsible for supervision and management, that is to say, with the Food and Drug Administration, and then the food and drug administration department will inform the health administrative department of the corresponding contents of the filing, which is also conducive to the formulation of local standards and national standards. This is actually a question of power division. "
Public opinion has generally noticed that in food safety incidents, there are very few cases caught by the regulatory authorities, and some food safety incidents are often first disclosed by the news media. Feng Yuan believes that this involves a problem of obtaining evidence. "For the current behavior that has not been caught, the regulatory authorities can handle it. In other words, enterprises illegally added products during the production process, and the regulatory authorities found out illegal additions during the inspection. How should this situation be handled? Can it be handled according to the test results? The current legal provisions do not clearly stipulate this. "
On the issue of how to supervise health food, Feng Yuan thinks that most countries don't have this concept at present, but there is a transition between food, non-food and medicine in China, which may be neither food nor medicine, but we regard imported things as non-food substances with no medicinal function, such as VC, which is not medicine, but definitely not health food. How should we treat it? We have now defined health food as food with specific health functions. If you add medicine, you can use it as medicine; if you don't, you can eat it as food.
"So, how much regulatory resources have we spent on health food? It is necessary to approve, manage and formulate policies. This is actually a waste of resources and the cost of government supervision. Therefore, I do not recommend separate supervision of health foods. " Feng Yuan said that the management of food safety is a very complicated system, and different departments are managing different food varieties and different links. Even the regulatory systems vary from place to place. In the process of supervision, there are still some overlapping functions, ambiguity and blank areas. I hope this revision can solve the problem of cross-functional management to the greatest extent.