Measures of Investigation and Handling of Illegal Acts Involving Online Food Safety (Mainland China)

James Cheng
With the rapid development of e-commerce in China in recent years, the wide variety of food products for online shopping has attracted many consumers as well. However, the supervision of food products sold over the Internet faces issues such as the vast number of businesses, wide geographic areas, high technical level, legal complexity, insufficient supervisory capabilities, and the lack of clear investigation procedures for violations of safety requirements for food sold on the Internet. To ensure the safety of food sold on the Internet, Director Jinquan Bi of the China Food and Drug Administration executed on July 13, 2016 the Measures of Investigation and Handling of Illegal Acts Involving Online Food Safety (hereinafter, the “Measures”), which will go into effect on October 1, 2016. This article will briefly introduce the Measures as below.
First, the Measures introduce more obligations on the third party platform providing online food product transactions services than those under the Food Safety Law, such as real-name registration and examination approval certificates. For example, the platform is required to obtain an approval from the communications authority and make a file recordation with the provincial food and drug authority before it may commence business operations. In addition, the platform must also setup a food safety self-inspection system, stop and report illegal conduct, establish a mechanism for handling of food safety complaints, create files on food producers using the platform and record and maintain their transaction records, as well as put together a dedicated online food safety management unit or a team of dedicated staff managing food safety.
Second, the Measures stipulate four types of serious violations and five prohibited acts for producers of online food products. The four serious violations are the following: (1) the producer is facing a criminal investigation or is being prosecuted for alleged food safety offenses; (2) the food producer has been convicted sanctioned by a people’s court for relevant food safety offenses; (3) the producer is detained by a public safety agency or is subject to other public safety sanctions for food safety violations; or (4) the producerÕs license has been revoked by a food and drug supervisory agency or has been ordered to suspend production and business. Once the platform discovers that a producer has committed any one of the aforementioned serious violations, it shall suspend providing online transaction services to that producer. Meanwhile, the Measures also provide that food producers may not engage in any of the following acts: (1) the names, ingredients or ingredient list, country of origin, shelf life, storage conditions, producer’s names and addresses of the food product as disclosed on the Internet are inconsistent with those specified on the food labels or specifications; (2) information disclosed on the Internet for non-health food products explicitly or implicitly indicates that such products promote health; or that the health food registration or recordation as shown online is inconsistent with the registration or recordation information; (3) the information disclosed on the Internet about baby formula products explicitly or implicitly indicates that such products enhance intelligence development, disease resistance, protect the digestive tract or other health promotion functions; (4) failure to provide any explanation or notice on the Internet for foods with special requirements in storage, transportation and consumption; and (5) any other act prohibited by laws or regulations.
Third, the Measures specifically set out the jurisdiction over violations. The Measures provide that the local food and drug supervisory agency above the county level in the place where the platform is located shall have jurisdiction to handle investigations of food safety violations by a third party platform for online food transactions, while the investigation and handling of online food producers shall fall within the jurisdiction of the local food and drug supervisory agency above the county level either where the food producer is located or where its production or operation site is located. In case of a food safety incident or any other seriously harmful consequence triggered by online food transactions, the jurisdiction may be assumed by the local food and drug supervisory agency above the county level in the place where the food safety violation took place or where the results of the illegal act occurred. In case of any complaint or tip about online food safety violations or issues, the jurisdiction should be assumed by the local food and drug supervisory agency above the county level in the place where the platform or the online food producer or is located, or where the producerÕs production or operation site is located.
Fourth, the Measures provide that the food and drug supervisory agencies above the county level may conduct random inspections based on samples purchased online, which means that the national and local offices of such agencies may also conduct sampled inspection of online foods as needed in the course of supervision. Such “anonymous buyer” system allows supervisory agencies to purchase samples as customers, record the names, types and quantities of the samples taken, the personnel purchasing the samples, the account used for payment, the registered accounts, the delivery addresses and contact information and retain the relevant receipts. In addition, the personnel buying the samples shall examine the packaging of the online samples as purchased, seal the samples and backup samples separately, and photograph or video the package opening process. The “anonymous buyer” scheme is designed to be a relatively more effective supervisory model to accommodate the virtual characteristics and information asymmetry of online shopping in the Internet era.
Fifth, the Measures increase the liabilities to be assumed. The Measures provide that in the event the third party platformÕs failure to perform its obligations result in any of the following five results, its business will be shut down by a local food and drug supervisory agency above the county level, and the matter will be referred to the communications authority for handling. The five results are: Death or bodily harm; relatively large-scale food safety incidents; relatively more serious foodborne diseases; violation of consumer rights to the extent of causing serious negative impact to the public; and other serious consequences. The Measures also provide that if the platform fails to set up the aforementioned systems such as the review and registration of producers or a food safety self-regulation mechanism, or it fails to disclose the existence of such systems as required under the Measures, a local food and drug supervisory agency above county level will order rectification or issue warnings. In case of failure to rectify, a fine of RMB 5,000 to RMB 30,000 will be imposed.