The year 2015 holds a lot of important news for the PRC food industry: new food safety law (in force from Oct 1, 2015), new advertising law (in force from Sept 1, 2015), CFDA Administrative Measures for Food Recall (in force from Sept 1, 2015) and several standards being revised – both vertical and horizontal.
The new food safety law comes into force on the 1st October 2015 and China Food and Drug Administration (CFDA) becomes the main, central authority for food safety. Other ministries who also share regulatory competences in this matter are The General Administration of Quality Supervision, Inspection and Quarantine (AQSIQ) which overview food import/export and The National Health and Family Planning Commission of Peoples Republic of China (NHPFC) which is in charge of risk assessment.
Traceability becomes a key principle of the new law as well as the so-called whole society approach. This approach aims to gather all players (producers, traders, caterers, authorities, consumers, media) in the pursuit of food safety. Therefore it is important to note that the new law clearly outlines the obligations that producers and traders have to recall non-compliant or unsafe products.
Sanctions become very harsh: beside criminal liability, punitive damages or fines can be up to 20 or 30 times the value of the non-compliant products.
Impact On Import Food
When dealing with import food without a specific vertical standard - which is not so rare - it is now possible to apply for ad hoc approval by submitting documents proving compliance with foreign and international safety standards.
Export of meat, aquatic and dairy products are only allowed by producers approved and listed on the specific pre-approved lists by AQSIQ.
Requirements are more relaxed for health food import: new Catalogues shall be issued for health food ingredients and for allowed claims (up to now, only 28 claims). Food supplements and health foods using ingredients in the Catalogue will not need to undergo the extenuating registration procedure with CFDA (up to two years), and will only need a simpler, shorter (and cheaper) record procedure.
The new Food Safety Law includes specific provisions dedicated to this product – very likely the most sensitive: the new law expressly states it is forbidden to import in bulk and then repackage baby-formula. Baby-formula therefore shall need to be already imported in its minimum retail package – with a Chinese label directly printed (not pasted) on the package (such a requirement is de facto, often applied also to UHT milk) – and with at least a 3 month shelf life from custom clearance.
Another provision, which prohibits baby formula producers from selling different brands from the same formula, appears aimed at targeting domestic producers (up to 30 brands per producer!) rather than foreigners – although the definition of “same formula” needs to be better sharpened. For the same reason, CFDA registration is required for baby formula (the law does not specify whether only domestic or also import).
Perhaps the biggest news for this product concerns claims: GB 13432/2013 - just entered into force on July 1, 2015 – bans any content and comparative claim for baby formula 0-6 months. Content and function claims may be brought for other kinds of foods for special dietary use, but to a narrower extent than ordinary food. Interestingly it will be possible to use nutrition claims allowed but without a pre-defined wording under PRC law: as long as supported by international or a foreign country’s regulations.
Today’s retail transactions are largely conducted through e-commerce platforms. The new regulation takes this into due consideration and finally requires e-platforms to:
- implement a real name registration system for food traders,
- exclude food traders without the due legal qualifications,
- cooperate in a proactive way to take down such e-commerce platforms who’s case is a violation of food laws.
Labeling and advertising: more protection for food companies
In the case of non-compliant products, the new food safety law raises the amount of damages that can be claimed by the consumer (up to 10 times the price paid, or 3 times the damage suffered and in any case never less than 1000 RMB).
The (very) good news lies in the provision excluding such damages in the case of mislabeling which neither have a real impact on the product safety nor mislead the consumer. This is a very important provision, because as of today a huge number of complaints are filed for mere typos by so-called “professional consumers” (more and more similar to organisations pursuing profit from non-compliant products by exploiting provisions of the law in bad faith). This problem exploded in December 2013, when the Supreme Court clearly stated that the consumer shall be protected in food and drug litigations even in cases of so-called bad faith purchase.
Another interesting provision are punishing those – even from a criminal liability perspective – the media, consumers and anybody for spreading false news about food safety or food incidents and disturbing the public order. It will be very interesting to see if and how such provisions will be enforced – for instance in cases of rumors or boycott campaigns on social media.
New Advertising Law
Finally, the new advertising law comes into force on September 1, 2015. In summary, below is an outline of the new provisions:
- e-advertisement (identity of sender shall be disclosed),
- limits to use of testimonials/endorsers (never under 10 years old, and they really have tried the product),
- for health food (mandatory CFDA pre-approval)
- infant food (which can never claim to be «totally or partially equivalent to breast milk).
Sanctions are harsh and it will be important to not that misleading advertising will lead to joint liability of food producer, distributor, advertising agent and publisher.