We had the honor to attend the 2017 Food and Drug on Criminal Enforcement of Safety Forum, held in Beijing on July 7.
High-level rankings from police department of several provinces of China, public prosecutors of Supreme Court of China, high-profile university professors and in-house counsel of prime food and drug companies joined the event, both as speakers and as audience.
Interesting experiences and data were shared about food fraud and crime repression; it was also a very important moment for all stakeholders to share best practices as well as main challenges related to food and drug crime.
Food crime is basically regulated by specific provisions the PRC Criminal law, and in particular by:
- Article 143, which punishes whoever produces or sells food non-compliant with hygiene standards, sufficient to cause serious food-poisoning accident or serious disease by food-borne bacteria. Punishment has different grades if the criminal conduct generates specific consequences;
- Article 144, which punishes whoever mixes the food to be produced or sold with toxic or harmful non-food stuffs, or sells the food mixed with toxic or harmful non-food stuffs
with clear knowledge of this. Punishment has different grades if the criminal conduct generates specific consequences;
- Article 140, which punishes producer or sellers mixing impurities or imitations into a product, or passing a fake product off as a genuine one, or passes a defective product off as a high-quality one, or passes a substandard product off as a standard one, if the sum obtained through sale amounts to not less than 50,000 yuan. Punishment is harsher based on the turnover generated by the sale of such shoddy products.
Beside these, it is not infrequent application to food-related cases of article 222, which punishes any advertiser, advertising operator or advertising publishers who takes advantage of advertisements to conduct false propaganda on merchandise or service in violation of the state’s stipulations, if the circumstances are serious.
Despite an Official Interpretation issued by the Supreme Court in 2013 to provide interpretation guidelines to some core elements of the abovementioned provisions (such as “serious consequences”, “serious food poisoning”, “serious harm to human health”), the ultimate interpretation of the abovementioned articles remains somehow vague (for instance, “serious harm to human health” is defined by the Supreme Court interpretation as “causing minor injuries, causing minor disability” etc..).
Current situation of food crime repression
On the enforcement side, it was stressed how – despite great efforts by authorities are indeed paying off – food crime repression can be challenged by factors such as very low economic value of the vast majority of food crimes (more than 90% of food-related crimes involves a turnover lower than RMB 100,000, and in around 80% of those cases the actual turnover could not be identified due to lack of any records).
This results in sustained time being less than 1 year in around 51% cases, and in pecuniary punishment being usually below RMB 100,000 (but largely below RMB 10,000).
Vague meaning of certain provisions of criminal law also hampers punishment.
Other challenges include proving the crime intention – as the abovementioned crimes shall be committed intentionally, while negligence is not punished – as food crime suspects often claim not being aware that their conduct was non-compliant/illegal.
False advisement of food and drugs – despite vague criminal law provisions – is rather frequent and it is often punished by authorities. Usually the false element of such propaganda stays in therapeutic claims, or curative claims with no scientific foundations – such as in a recent case involving false advertising for “Cordyceps Sinensis/冬虫夏草” were actually discovered to be “cordyceps militaris/蛹虫草”, a very different product. (advertising broadcast on television claimed disease treatment functions, while the products were not qualified for any such claims).
In another case, the first of its kind, one person was sentenced to five year and nine months of detention for credibility fraud of certain products offered for sale on e-shops. Cases like this – for example: having accomplices with whom the owner of a T-mall store can simulate a fake transaction (no products are delivered and payment is returned to the “fake” purchaser) so that the fake purchaser can give high rating on the Tmall rating system – are rather frequent and contribute to vast-scale commercial fraud.
Enforcement authorities expressed their ideal wishes for the future:
1) Improve the mechanism of inter-provinces investigation cooperative;
3) Promote the informatization of investigation and law enforcement;
3) Increase punishments