By Ching-Fu Lin
[See Part I here.]
In response to the melamine-tainted milk scandal in 2008, China replaced its outdated Food Hygiene Act with the Food Safety Law, which came into effect in 2009. The 2009 Food Safety Law includes provisions on risk assessment methods, establishment of a food safety committee, mandatory product recall requirements, and unification of food safety standards. However, this legal reform has left many key areas of the regulatory framework intact—such as industry compliance and law enforcement.
First, the crucial problem of overlapping competencies among responsible authorities is not addressed in the 2009 Food Safety Law. Although the Ministry of Health (MOH) is mandated to take the lead on food safety regulation, the current state is flawed as multiple agencies are only organized in a loosely coordinated system. For example, the State Food and Drug Administration (SFDA), the Ministry of Agriculture (MOA), the State General Administration of Quality Supervision, Inspection and Quarantine (AQSIQ), and the Ministry of Commerce (MOC) all take part in the regulation of the entire food supply chain. The result is a fragmented regulatory environment, which creates blind areas for agencies to push responsibility away, and therefore, perpetuate rather than alleviate loopholes in routine control. Thus, timely response and cooperation is difficult.
Second, a “from farm to fork” supply chain approach that emphasizes the food industry’s primary responsibility for ensuring the safety of products has yet to be adopted by the 2009 Food Safety Law in a manner that corresponds to China’s decentralized food industry structure. Among the half a million food establishments in China, almost 80% of them are “cottage industries” with no more than 10 employees. Unlike the situation in Europe and the United States, where the food industry is highly concentrated and integrated, the legal and reputational risks that drive the industry’s own supply chain regulation or social responsibility are extremely weak. Moreover, in cases of food safety incidents, it is difficult to locate (even with a basic traceability program) responsible parties. This partly explains why when the Chinese authorities keep cracking down on illegal food producers and adulterated food, the problem persists. Mom-and-pop producers can easily change a name, move to another village, and hire new employees to produce a different product. The complexity of food supply chains and the lack of a tracking system, together with the flat industry structure, have made it extremely difficult to pinpoint the source of contamination or to respond to food crises in an efficient manner.
Third, there is no provision prohibiting the export of unsafe food products. In the section “Import and Export of Food” in the Food Safety Law, there are six articles related to the obligations of food importers. But there is merely one article requiring sample inspectors and food exporters to “go through the record-filing formalities at the entry/exit inspection.” Because of such asymmetric regulations, governing exports and imports is inconsistent with China’s status as one of the largest exporters of food products in the world. For instance, the Chinese SFDA’s statement clearly indicates its officials’ unwillingness to assume responsibility for the safety of their pharmaceutical product exports: “Safeguarding the legality, safety and quality of raw materials imported for use in pharmaceuticals is the responsibility of the importing country.” Unfortunately, food safety issues are no exception to such irresponsible Chinese attitudes.
Lastly, what is required by the law is not necessarily what will be implemented and enforced on the ground. The 2009 Food Safety Law stipulates lengthy and toughened penalties against makers of tainted food and violators of food safety regulations, but fails to ensure industry compliance and law enforcement. Some critics argue that a lack of laws and regulations in China is the central reason for the nearly unmanageable melamine-tainted milk case. However, a blind establishment of new laws and regulations is itself insufficient, insofar as enforcement of adequate laws is the answer to food safety issues in China (China has more than 3000 food laws, regulations, and standards). The problem of law enforcement is very serious, and the gap between written and enforced laws has been widening. In this regard, a Chinese citizen in Sanlitun noted, “There are so many people and factories in China. At the local level they don’t obey the laws of the central government. Why should this law be any different?” The recent reoccurrence of melamine-tainted milk in 2009, 2010, and 2011 perfectly exemplifies the serious problem of law enforcement in China. In this case, authorities discovered tainted milk powder previously “confiscated” in the 2008 melamine case had made its way back to the Shanghai Panda Dairy Co. The powder was used to manufacture over 1,000 metric tons of melamine-contaminated milk. This case had allegedly been kept secret by the Shanghai food-safety authorities for about four months. Such scenarios can also be seen in many other regulatory fields, including environmental law and labor law.
The root causes of this enforcement problem include the dilution of responsibility caused by China’s multilevel government structure (state, provinces, and counties), pervasive corruption problems, implicit regulation-free industry policies, and the generally underdeveloped nature of China’s legal system (including the lack of an independent judiciary). Unfortunately, in the area of food-safety regulation, both the complicated nature of food science and the high threshold requirement for technical expertise would further exacerbate the ineffectiveness of law enforcement, especially at the level of local governments.
China’s State Council has listed a food safety law amendment as its legislative work for 2013, aiming to ensure the effective food safety supervision mechanisms. Last March, the SFDA was renamed as the China Food and Drug Administration (CFDA) and elevated to the ministerial level, directly under the State Council of the People’s Republic of China. The CFDA is restructured to replace the aforementioned overlapping agencies (further definition and clarification of different agencies’ responsibilities need to be designed) so as to provide a streamlined and comprehensive regulation of food and drug safety. Nevertheless, as the 2009 Food Safety Law has never fully addressed the nation’s regulatory failure, China is bound to initiate yet another wave of amendments.