A recent decision about consumers claim for food product compliance recently grabbed our attention. Please find hereby some analysis of this case.
On April 2017, the plaintiff bought several food products in Chengdu, including motherwort honey jars and infant formula. He believed that some of these products were non-compliant with Chinese regulations and hence the he filed a litigation with the Court requesting 1) refund of the price paid; 2) payment of 10-fold compensation; 3) publication of apology on newspapers.
Which were the claims and their legal grounds?
Claim of the plaintiff about honey products
As motherwort (leonurus cardiaca) is listed as a plant in the Chinese Pharmacopoeia, Plaintiff claimed that motherwort honey was breaching the following legal provisions:
Article 8 of Notice 109/2001 of the MOH (Ministry of Health) and Notice 7/2007 of the MOH, which forbid food to be named with drugs name;
Article 34 of the Food Safety Law which prohibits production of foods, food additives, food-related products that do not comply with laws, regulations or food safety standards;
Article 71 of the Food Safety Law which requires labeling of food and food additives not to contain false contents and in particular not to involve disease prevention and treatment functions;
Articles 5 and 6 of the “Measures for Punishment of Consumer Rights and Interests Infringements”, whereby commercial operators shall provide consumers with true, comprehensive and accurate, information about goods or services, avoiding any misleading information and avoiding any misrepresentation in the goods they sell.
Claim of the plaintiff about infant formula
The plaintiff complained that (i) the purchased infant formula contained – amongst its ingredients – casein but (ii) the production date of such product was precedent to the entry into force (on 23 June 2017) of the Chinese national standard for casein (GB 31638).
Therefore – the plaintiff claimed – the production (and use) of food ingredients without any applicable standard would constitute an illegal use of raw materials and a serious risk for the majority of infants and young children.
Decision of the Court for the honey product
The Court held that (i) under the Chinese GH/T18796 industry standard for honey (article 4.6) “If honey is produced mainly from a plant or flower and has the physical, chemical and microscopic characteristics of this plant or flower, the name of the plant or flower can be added before the word “honey”; (ii) Motherwort is indeed a plant; (iii) According to 3.1 of the Chinese national standard for honey (GB14963-2011) honey is defined as “The nectar, secretion or honeydew got from the plant by bees must be safe and non-poisonous and cannot be originated from a toxic honey plants” and therefore motherwort is not forbidden nectar species. Based on this, the denomination “motherwort honey” is not inappropriate.
As for Notice n. 109/2001 from MOH, the Court held that such notice is mainly to prevent unauthorized use of drugs denomination in food products as well as the illegal addition of pharmaceutical raw materials in food. Moreover, such notice applies to health food, cosmetics, hygiene products involving drinkable water, disinfection products etc. and health-related products approved by the Ministry of Health.
As motherwort is a plant, its inclusion in the denomination of honey is according to the industry standard of this product, and it is not considered illegal.
In our opinion the interesting part of this decision is the clear rejection that of naming a product with herbs included in the Chinese Pharmacopeia constitutes – per se – misrepresentation and/or misleading reference to treatment properties.
Decision of the Court for the infant formula product
The Court held that there was no law violation in casein being an ingredient of the involved infant formula as (i) according to the requirements for raw materials set by national standard of Infant Formula GB10765-2010, casein is not forbidden; (ii) according to article 2.1 of GB14880－2012 “Use of nutritional fortifiers in food products”, the chart n. 2 sets quantitative limits for casein calcium peptide and casein phosphopeptide; (iii) according to the NHFPC Notice n. 897/2014 “Casein is a naturally occurring protein found in milk, and potassium (calcium, magnesium, sodium) caseinate is a milk protein that is made by adjusting the acidity, neutralizing and drying of casein. GB10765-2010 provides that milk protein can be used as food raw material, and casein sodium has been used as a food additive in the “National Food Safety Standard for Food Additives” (GB2760-2011). Therefore, potassium caseinate, calcium caseinate, Magnesium can be used as food ingredients“; (iv) standard GB/Z 21922-2008 “Fundamental Terminology and Defintion of Nutritional elements in Food” also mentions casein.
The Court decision acknowledges that use of food an ingredient – even when this is not covered by a specific standard – does not constitute per se breach of food safety provisions.