The Challenges for Food Safety in China: Current legislation is unable to protect consumers from the consequences of unscrupulous food production(1)


Bian Yongmin


After a long time fighting food shortages, China has been self-sufficient in food since 1995 (1). But in the Action Plan on Food Safety published by China’s Ministry of Health (MOH) on August 14th 2003 (2), the government classes the following current risks relevant to food safety in China as “very serious”:
1) Food-induced illnesses remain the supreme danger for public health; 2) New biological and chemical pollutants in food; 3) New food technologies and materials (such as transgenic food) raise new challenges; 4) The capacity for self-management among food producers is weak; 5) Food terrorism; 6) Slow food safety supervision by government organs. A number of scandals during 2002 illustrate the severity of the situation (3). The government is facing pressure from consumer demand for safe food (4). Moreover, since China’s accession to the World Trade Organisation (WTO), food imports and exports have increased, and disputes about food safety have arisen between China and its trading partners. The European Union has refused Chinese food many times for reasons of safety (5). These refusals not only cause huge losses of goods, they also discourage future transactions. How to ensure food safety has as a consequence become a government priority.

HISTORICAL BACKGROUND
In 1965 China promulgated its first food safety law—the Regulations on the Administration of Food Hygiene (trial implementation). These regulations mainly referred to state-owned food producers. The main concern at this time was the security of the food supply rather than the safety of the food itself, and came shortly after the terrible Three-Year Famine (6). These first regulations failed however, due to the collapse of the legal system in China in the decade following (7).
Before the end of 1970s, China’s economy was strictly planned and controlled by the state. All food production factories were owned and controlled by the state, and observed some simple food standards. There were few food safety problems because most food was produced using traditional methods without heavy use of chemical fertilisers, pesticides and additives. Profits were not the aim of food producers because the entire food production chain, from the materials, equipment and technologies, to distribution and sale, were centrally planned and controlled by the state. Food safety accidents were occasional, but did not damage the overall image of food safety. #p#分页标题#e#
Following the Cultural Revolution and with the economic reforms at the end of 1970s, many new laws and regulations were renewed or enacted. In 1979 the Regulations on the Administration of Food Hygiene was drafted. They were based on the 1965 Regulations and took into account the new economic situation. Three years later, the new regulations were replaced by a new version in 1982. This was the Food Hygiene Law. This was also a trial implementation to accommodate the situation of continuing economic reforms. The revised and current Food Hygiene Law was implemented in 1995.
This paper will outline China’s current legislation on food safety and evaluate its role as well as problems arising from it. We will look first at the law on the safety of “straight” food, and then at that on genetically modified (GM) food. A commentary on the enforcement of food safety law and on the implications of China’s experience for other developing countries will follow.

CURRENT LEGISLATION
The 1995 Food Hygiene Law forms the basis of the legal framework for food safety in China. Ironically perhaps, neither the 1995 Food Hygiene Law nor its predecessors provide a definition for “food hygiene”. In the 1982 Food Hygiene Law the main concerns with regard to hygiene focused on rotten or dirty food or food capable of causing poisoning, or food processing that was not clean. However, the scope of the 1995 Food Hygiene Law is not limited only to food hygiene problems; it also covers many safety issues, such as food made with new materials, food in hospitals, food for infants (8), etc.

The 1995 Food Hygiene Law
The 1995 Food Hygiene Law, promulgated by the National People’s Congress, consists of 57 articles that cover general principles, food hygiene, food additives, packages and containers of food, the enactment of regulations and hygiene standards on food, the administration of food hygiene, the supervision of food hygiene, penalties, and miscellaneous clauses including definitions. It adds 12 new articles to the 1982 Food Hygiene Law, and makes clear stipulations on the authority responsible for the administration of food hygiene (9), the supervision of food hygiene by NGOs (non-governmental organisations) and individuals, the production of food, food that may not be produced, the absence of drugs in food, and on food for military and the services, etc. Seven new requirements state that (10): #p#分页标题#e#
• the layout of equipment and the processing methods should be reasonable;
• food containers must always be clean;
• the instruments for storage, shipment, loading and unloading must be safe and do not constitute a hazard;
• ready-to-eat food must be packed using materials that are clean and safe;
• the workers must wash their hands and put on clean clothes and headwear before producing or selling food;
• the water used must meet the standards set by the state;
• the wash and disinfectant products used must be safe for human consumption and use.
The above are all crucial to ensuring the safety of an end product, but it is disputable whether these requirements are sufficient, or even exhaustive. For example, Article 8 (4) provides that ready-to-eat food should be packed with materials that are clean and safe for use: but no mention is made of the packaging used for ready-made food. This is quite typical of the articles contained in 1995 Food Hygiene Law, which covers only very basic practices.
Reference to planting and breeding, as these have relevance to food hygiene, is absent. So the law does not take a from-land-to-table approach. The inclusion of certain ingredients in food is illegal only when the ingredients affect the nutrition or hygiene of the food. So to mix a second grade rice with a top grade rice and sell the mix as top grade rice is not illegal under this law because both may be nutritious and hygienic. Of course rice sold in such a way is illegal according to other laws, such as contract law. The method of enumeration adopted in this law to provide rules in a few key articles barely covers the extent and requirements of actual practice.
The 1995 Food Hygiene Law did not establish a system to deal with major food safety incidents, such as the outbreak of bird flu in China in the spring of 2004. Although the government quickly enacted a series of orders upon the occurrence of the bird flu, it remains unclear in law what would be required were another food safety incident to occur of a similar nature or on a similar scale. #p#分页标题#e#

Other regulations
Many food hygiene regulations were formulated in accordance with the 1995 Food Hygiene Law, which generally covers the following five areas: 1) food and raw materials, including administrative measures on food additives, transgenic food, milk, egg, meat and related products thereof, aquatic products, food made from new resources (11), etc.; 2) food production and processing, which focuses for example on food disinfection; 3) food packaging, containers and equipment; 4) supervision and administrative penalties; 5) food inspection and testing.
It is very difficult to evaluate these regulations and their effectiveness in practice. Regulations that can be enacted by ministries are called guizhang. The administrative organs would enact new guizhang in order to deal with a new problem, but without checking carefully whether they were in agreement with effective laws or regulations enacted by the same administrative organ or by other administrative organs with jurisdiction in the same area. Thus, conflict among guizhang provisions is not rare.

Standards
The system of food hygiene standards is complicated. There are basically two categories of food hygiene standards—compulsory and voluntary. Most compulsory standards are established by the state; however, local government has the right to formulate local standards that do not conflict with national standards, or when there are no national standards.
When the government formulates a compulsory standard, it refers to foreign and international standards, such as the food code developed by Codex Alimentarius founded jointly by the Food and Agriculture Organisation and the World Health Organisation. But referring to the Codex does not mean that China is adopting the Codex. The level of protection depends to a large extent on the capacities of Chinese producers, especially with regard to their technical and financial capabilities, and trade interests of the state. In the 1980s, the majority of food producers were either unable or could not afford to produce food that met Codex standards. #p#分页标题#e#
Trade interests also play a role in determining the level of standards. For food for which China is mainly a net exporting state, the government is inclined to set a low standard that is easy for exporters to reach. Up to 2000 only 14.6% of food hygiene standards met those of the Codex (12). Before entering the WTO, China made many adjustments to laws and standards in accordance with the provisions of the WTO. In the field of food hygiene standards, the government reviewed 464 standards and identified 1,379 issues (13). It made huge modifications, raising standards, especially those on the limits of pesticide residues, 85.4% of which now meet Codex requirements (14). In addition, 81% of the standards on pollutants met Codex standards (15). On the other hand, where Chinese food producers are capable of producing very safe food, or areas in the food industry where China is mainly a net import market, the government sets food standards even higher than those of the Codex.
Both the government and NGOs, i.e., various chambers of commerce which, according to the Chinese law, are non-governmental organisations, can recommend voluntary standards to food producers. These standards focus on many areas of food. Some of them relate to food safety, which may help food producers increase their share in domestic or export food markets. With the improvement of technology and financial ability, more and more food producers adopt many voluntary standards which may lead to better market success.
Among all the voluntary standards, the green food programme deserves much attention. The green food programme was launched by the Ministry of Agriculture (MOA) in 1992. Two categories of green food, AA and A, are defined by it. AA green food has the same standard as for organic food. For example, GM ingredients are not permitted to be used in the production of AA green food. But as much of the land in China is heavily polluted with pesticides or other pollutants, it is not only expensive but also very difficult to produce. #p#分页标题#e#
Category A green food was created to provide safe food based on the reality of China’s natural environment. A green food is of a higher standard than normal food but lower than AA green food or organic food. For example, only limited amounts of pesticide and chemical fertilisers may be used in crop elevation in order to be considered “safe” without affecting yield. The environment, including the land, air and water, where crops are planted or animals live should also meet certain conditions.
The green food programme did not develop well in its first few years. Yet, with the export of “normal” food having to meet safety requirements and consumers becoming more aware and more cautious about food safety, green food has become more popular (16). Growing exports of green food motivated the government to promote the expansion of green food production (17).
The development of a green food industry may have implications for the agricultural policies of other developing countries. Organic food is too expensive for most consumers, even for consumers in developed countries. It cannot therefore be the main direction for the development of agriculture. On the other hand, the health risks associated with the heavy use of chemical fertilisers and pesticides are clear. Green food is a compromise. The cost to produce it is not too high, while the use of chemical fertilisers and pesticides is permitted but heavily restricted to ensure yield and a guaranteed level of food safety.


【Exprss】
1.Chen Xiwen, “Jiaru shijie maoyi zuzhi yu woguo nongye de fazhan” (Entering the WTO and the Development of Agriculture in China), Nongye jingji wenti (Economic Issues in Agriculture), Vol. 6, 2002, p. 5.
2.See Web site.
3.Food safety scandals published by the MOH and disclosed by the official media included the poisoned rice scandal: four rice factories in Guangdong province produced rice by polishing and whitening mouldy rice and mixing it with mineral oil. The hair solution scandal: six soy sauce factories in Chongqing used hair dissolved by hydrochloric acid and water in the production of a kind of blended soy sauce. (See Chongqing shangbao [Chongqing Commercial Newspaper], July 3rd 2003). The colouring use scandal: five rice noodle factories in Shandong province were found to be using a bleaching agent for industrial use only to whiten the rice noodles that they produced, which caused food poisoning in more than 87 students in four schools in Guangxi province. This agent was also found in a sugar factory in Zhejiang, capable of producing 50 tons of sugar a day. Fifteen tons of sugar treated with this bleaching agent were found in the factory. See “Who Can Protect Our Food Safety?”. Recently, a substandard milk powder produced in Anhui province was found to have led to the death and malformation of many babies. #p#分页标题#e#
4.In 2003 the State Administration of Industry and Commence published the top ten categories of complaints by consumers in 2002. Food safety was topmost. See Web site .
5.The exportation of tea, shrimps, honey, frozen chicken and beef from China to the EU met with difficulties in 2001 and 2002, see Shen Jifeng, “Chuqin chanpin zaoyu rushi xin tiaozhan” (Animal and Poultry Products Meet New Challenge of Entering WTO), in Chinese and Foreign Food, No. 12, 2002, p. 60; Ye Xingqing, “Ba lüse shipin chanye fazhan chengwei yige da chanye” (The Challenge of Increasing Green Food Production), Nongye jingji wenti (Economic Issues in Agriculture), Vol. 8, 2002, p. 3.
6.At the end of the 1950s and the beginning of the 1960s, most of the Chinese population experienced the Three-Year Famine (1959-61), or the “Three-Year Natural Disaster” as the government had called it. Several million people died of starvation. In 1959, 97.7 million people had to find some means in order to survive or leave their homes to look for food. In 1961, the last year of the disaster, 218 million people were affected. See Chen Donglin, “Three-year Disaster and the Great Leap Forward: A Historical Observation of the Relationship Between ‘Natural Disaster’ and ‘Man-made Ruin’”; Jin Hui, “Memorandum of ‘Three-Year Natural Disaster’”; Zhou Xiangling, “The Facts of the ‘Three-Year Natural Disaster’, The Biggest Lie of the Last Century”.
7.In 1966 the government of China launched the ‘Cultural Revolution’. See Jiang Ming’an (ed.), Administrative Law and Administrative Litigation Law, Peking University Publishing Company and High Education Publishing Company, 2002, Peking, pp. 53-63.
8.The 1995 Food Hygiene Law provides that food for infants and in hospitals must meet MOH standards. However, the MOH has not yet formulated any such standards.
9.The MOH is authorised by this law to govern food hygiene. #p#分页标题#e#
10.These new requirements are provided in Article 8, Chapter II.
11.There is a separate administrative measure for each of these categories of food.
12.See Kan Xuegui and Zhang Zhiqiang, “The Chinese Food Hygiene Regulations and Standards in Contrast to International Relevant Codes”, Speeches in the Workshop on Food Safety, September 2002, Peking. See Web site.
13.Ibid.
14.Ibid.
15.Ibid.
16.The volume of green food produced in China in 1998 was 56 times that in 1990. In 1998, 1,018 sorts of green food amounted to 8 million tons. In 2002, 3,046 sorts of green food amount to 25 million tons. See http://www.greenfood.org.cn/lsspjj.htm. See also Liang Zhichao and Mu Jianhua, “Fazhan lüse shipin—tigao nongchanpin zhiliang he anquan shuiping de youxiao tujing” (Developing Green Food—An Effective Way to Improve the Quality and Safety Level of Agricultural Products), in Zhongwai shipin gongye (Chinese and Foreign Food Industry), No. 5, 2003, p. 47. Yang Yishou, Zhongguo lüse jingji lüse chanye lilun yu shijian (The Theory and Practice of China’s Green Economy and Production), published by China Mining University Press, 2002.
17.Sales of green food in 2001 amounted to 50 billion yuan (about US$6.05 billion), of which US$0.4 was from exports. In 2002 sales increased to 59.7 billion yuan (US$7.22 billion), of which US$0.84 billion was from exports. See Ye Xingqing, “Kuoda lüse shipin shengchan” (Broaden and Increase Green Food Production), in Nongye jingji wenti (Economic Issues of Agriculture), Vol. 8, 2002, p. 4.