Foreign Experts Advisory Committee
Proposals
Food safety

 

 

 

 

 

Francis Snyder 施奈德

C.V. Starr 教授;让·莫内欧盟法教授;跨国法律研究中心联合主任

地址:深圳市南山区西丽大学城北京大学B栋

邮编: 518055

办公电话:(86755)26035583

手机:(86)13718685550

电子邮箱:fgsnyder@gmail.com

 

 

5 March 2013

 

 

 

As a foreign expert living in China, it is a great privilege for me to be able to contribute to China’s development and reform every day. I am honoured by the invitation of the State Administration of Foreign Expert Affairs to make an assessment and submit proposals about reform of food and product safety regulation to improve public health. China has made tremendous achievements in a short time in setting up a legal framework and institutional infrastructure to ensure food safety. Nonetheless, great challenges remain. Globalization of the food economy and China’s rapid development have dramatically increased the incidence and visibility of food safety risks. Yet the rapid international circulation of ideas about food and product safety regulation nowadays facilitates mutual learning. China can both learn from and teach other countries.

 

In the following paragraphs, I have the honour of providing you with my candid assessment and proposals for measures which China should take to achieve its food safety goals. There are three parts: principles and rules, institutions, and enforcement and education. I conclude that China should adopt a national food safety strategy.

 

National principles and rules

Basic principles: China’s food safety system should be based on several clearly articulated principles: (a) national strategy, goals and substantive principles, (b) focus on prevention, (c) traceability, (d) enterprise responsibility, (e) local enforcement, (f) strategic alignment with international standards,

and (g) diversity, experimentation and adaptation. Currently, much is in progress.

 

As part of a national food safety strategy, food safety regulation should shift to a system focused on prevention, rather than on end-products. The new Food Safety Risk Assessment Center contributes to this goal. Risk management should be based on a precautionary principle. Hazard Analysis and Critical Control Point (HACCP) should be promoted as an objective, adopted by all enterprises capable of putting it into practice and adapted to China’s market structure.

 

A major obstacle to establishment, implementation and enforcement of a preventive system is the very large number of small enterprises, workshops and itinerant traders. The FSC should give this high priority, with attention to social justice. Provincial governments are supposed to adopt specific measures to regulate small enterprises, but practices diverge greatly. Natural attrition, market rationalization (eg horizontal or vertical integration), or changes in consumer demand due to rising incomes are only long-term solutions. I suggest that all enterprises which operate in the market, and notably those which produce or sell food or provide catering services, should be required to have an appropriate license. A transition period should be allowed for enforcement. I note that, despite a similar market structure, the EU Food Law does not make any exceptions for small enterprises with regard to the basic principles that food is not to be placed on the market if it is unsafe and that food business operators are required to ensure that the legal requirements are met.

 

Traceability is to be introduced in China before 2017. Some pilot projects are now underway. China should continue to cooperate with the US and the EU about how to implement such a system in China. Together with licensing, traceability can ensure that food enterprises, including farmers, bear the main responsibility for the production and marketing of safe food. Legislative reform can contribute. For example, EU law has the concepts of ‘food business’ and ‘food business operator’, which provide for clear assignment of responsibilities and cover the whole food chain from farm to table.

 

China participates actively in the Codex Alimentarius. Its objectives should be to increase participation, promote Chinese standards for selected products as international standards, and align national and local standards selectively with international standards, while maintaining independent policy so that Chinese standards reflect the Chinese context. The experiences of the US and the EU provide examples of how to achieve selective alignment.

 

China is a large and diverse country. Its policy style for many years has been based on learning from practice, adaptation to local conditions, and a high degree of experimentation. These valuable features should be preserved, but subject to the three overriding conditions: respect for national policies, laws, and standards; mutual recognition among provinces of different standards; and the basic threshold requirement that food must be safe.

 

Ensuring coherence and consistency: Since enactment of the FSL, China has made historically unprecedented progress in developing and clarifying laws, regulations and standards about food safety. Further reforms are necessary. Overlapping and conflicting laws, regulations and standards should be eliminated. Reducing the sources of rules should be considered, in conjunction with the creation of a unified food safety system. The gap between standards for export markets and those for the domestic market should be gradually eliminated.

 

Relations between different kinds of standards need to be clarified. Government should work with capable enterprises to develop, register and spread standards higher than national standards within each sector. Industrial associations have a key role to play. Private standards, good manufacturing practices (GMP), and corporate social responsibility (CSR) should be promoted, with legally binding standards as the floor.

 

In food safety law, administrative sanctions are based on strict liability (in addition to criminal sanctions where appropriate). Today, sanctions are inadequate and scattered across administrative law, civil law and criminal law. Considerable effort is required to achieve more coherence, but gains in terms of compliance and education can be substantial. For example, currently the Criminal Code articles on food safety offences are limited in scope. Sanctions should be proportionate to offences. More effective compensation for victims is needed.

 

General product safety rules or rules on additives should be reviewed to ensure their pertinence to and coherence with food safety law. The problems of plasticizers (phlalates) and waste cooking oil require greater enforcement of existing law, better regulations and market-based solutions such as comparative pricing. Creative ‘thinking outside the box’ about how to achieve food safety goals

should be encouraged.

 

Institutions

Towards a unified system: China’s institutional arrangement for food safety suffers from fragmentation, despite the 2009 Food Safety Law (FSL) and many other measures. The recent shift of some responsibilities to the Food Safety Committee (FSC) from the Ministry of Health (MOH) may help solve the problem of regulating other administrative bodies of the same-rank. However, the current system, based on ‘regulation by segment’ (fen duan jian guan) and derived from the planned economy, requires reform.

 

China needs a single, unified food safety authority .Institutional changes since the melamine crisis have moved in this direction. Nevertheless, further reforms are needed because (a) a strong strategic voice is lacking due to insufficient integration or oversight of central or central/local authorities; (b) regulators often are tied too closely to the regulated, sometimes with economic interests leaving substantial room for local protectionism or corruption; and (c) command-and-control regulation alone cannot possibly deal with today’s challenges combining food safety, social inequality in public health, industrial upgrading, promotion of biotechnology, and environmental protection.

 

A unified agency with a network structure could enable China to implement a strategy that balances the creation of a common baseline of principles with the need for ongoing local experimentation. ‘Unified’ does not mean ‘centralized’. The US and EU systems are instructive. Responsibility for food safety in the US is now delegated mainly to the Food and Drug Administration (FDA) and the Department of Agriculture (USDA), but many federal, state and local agencies are also involved. Currently there is a lively debate about whether and how to create a single national agency. The EU has a networked system, led by the European Commission, with a weak central scientific support and information-providing body, the European Food Safety Authority (EFSA), and implementation and enforcement mainly by national authorities. I think China should explore seriously the US debate and the EU example, including the work of the EU Food and Veterinary Office (FVO).

 

Encouraging cooperation: Lack of clarity in governmental responsibilities currently hinders achievement of China’s food safety goals. China should work to settle institutional boundary disputes efficiently and encourage cooperation. Not just law reform, but also information sharing among institutions at the same level and at different levels of government should be reinforced.

China may benefit from looking closely at the EU and US experiences. There, the media and consumer groups play an important role in bringing inconsistency, incoherence or lack of effective action to the public and governmental eye. Other institutions, such as courts, resolve boundary disputes. China is different, but things are changing. In China, resolving institutional boundary disputes falls mainly to the administration. The FSC should take on the task, exercising it if necessary by delegation. Other means should also be explored to combine the best of Chinese and foreign experience. A useful example may be the EU Common Implementation Strategy (CIS), a network established to manage implementation of the Water Framework Directive.  Further work is required, however, to determine whether such an organizational form could help to ensure greater coherence while preserving local diversity and China’s well-established tradition of experimentation and continuing adaptation.

 

Enforcement and education

Improving enforcement: Good laws are worth little if they are not applied. Enforcement of food safety law rests mainly with local governments. Central government should provide more supervision for provincial and local authorities. Career advancement for government officials must take account of performance in implementing food safety law. Development of a network system of supervision and compliance controls can mitigate local protectionism.

 

FSC can aim to enable the judiciary increasingly to deal with food safety litigation. Today the media is usually more important than the procuratorate in stimulating court cases. Local administration should be more proactive, with clear guidelines and sufficient resources. The watchdog role of the media can be further encouraged, both traditional media such as TV and also social networking sites.

 

Useful comparators are the US, with a very wide range of sanctions, and the EU, where the Member States are responsible for enforcement, including verification of compliance and application of sanctions, but central EU authorities increasingly set guidelines for enforcement and provide for supervision.

 

Education and training: Public education and participation are among the most important keys to achieving China’s food safety goal. Government should devote considerable attention to food safety education, both for professionals and businesses and also for the general public of citizens/consumers/schools/associations/workplaces.

I suggest three overlapping educational campaigns. One should reach the rural population, agricultural producers, small enterprises and itinerant traders. A more technical campaign should be addressed to larger enterprises about food safety law and standards, internal management systems, mandatory pre-market inspection, traceability, and recall. Enterprises should be required to set up food safety training for relevant employees and offer a ‘food safety manager’ qualification before or within a specific time after recruitment. A third campaign should be targeted to the general public, using all media, including internet and social media.

 

All three campaigns should combine practical, legal, and moral education. All should provide for feedback, comments, and discussion. Administrative and criminal sanctions, in addition to enforcing rules, can educate the public about food safety. Media could reinforce the exposure of enterprises that fail food safety inspections.

 

Conclusion

China’s four main challenges are to provide consistent, coherent and effective laws, regulations and standards; to bring small enterprises under the food safety umbrella; to establish optimum institutional arrangements; and to improve enforcement and public education. To meet these challenges, I propose that China adopt a specific national food safety strategy. It would set down goals, means, benchmarks and procedures for the short term (1-4 years), medium term (5-9 years) and long term (10 years or more). The strategy would provide a solid basis for ensuring safe food for present and future generations.

 

                                                                                                                        Sincerely,

                                                                                                          

 

 

                                                                                                                        Francis Snyder

 

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