Measures aim to toughen up on online food safety

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The China Food and Drug Administration (CFDA) has released the Measures of the Investigation and Punishment of Illegal Conducts Concerning Online Food Safety (order No. 27), governing online activities by food producers and operators, and their third party platform providers.

story_2Order No. 27 came into force on 1 October 2016, and is aimed at improving transparency and accountability of online food sales and advertising (online food trading).

It applies to all food producers and operators (including delivery service providers) engaged in online food trading (food traders) as well as any third-party platform that supports online food trading (third-party platforms).

Foreign food traders who use information from their home country web pages on their Chinese trading pages must now take special care to ensure that their online information complies with requirements under Chinese law.

Once order No. 27 is implemented, food traders must:

  • Display their food production/operation licences on their trading pages (if trading on third-party platforms) or their home pages (if trading through their own websites);
  • If engaged in restaurant/catering services, publish the information of their quantitative grading that is based on the administration system for food safety supervision;
  • If trading through their own websites, file a record with local food and drug administrations (FDAs) and obtain a record number;
  • Provide online instructions and tips concerning food, with special requirements in respect to storage, transportation and consumption;
  • Take measures in storing and transporting food to guarantee safety for food, with special storage conditions such as freshness preservation,
    thermal insulation, refrigeration or freezing;
  • If trading through their own websites, keep trading records for not less than six months upon expiry of the shelf life of food products, and, when there is no shelf life, the record shall be kept for at least two years; and
  • Ensure consistency between online information and information on
    food labels.

Food traders should also conduct due diligence of their online activities to ensure compliance with the disclosure requirements. Special care should be directed towards ensuring the completeness and accuracy of online information.

In addition, food traders must be careful to only trade within the scope of their licences, as these licences will now be open to public scrutiny.

FDA ENFORCEMENT POWERS

The local FDAs are responsible for investigation and punishment of illegal conduct regarding food safety. Under the Food Safety Law, third-party platforms must review permits of food traders and register their real identities. If a third-party platform becomes aware of food safety violations, the third party platform must immediately stop the food trader from the subject activity and report to local FDAs. For serious violations, the third-party platform must immediately stop providing platform services. If a consumer suffers damages from food products purchased through a third-party platform, the consumer can demand damages from the food trader. Where the third-party platform cannot provide valid contact information of the food trader, the third-party provider must pay the damages.

The investigation powers of the FDA include conducting on-site inspections, sampling of food, reviewing records and data and employing technological monitoring resources.

Although there is no provision relating to online counterfeits, order No. 27 may potentially make it easier to track down and prosecute counterfeiters because of the online disclosure requirements and strict product quality liabilities on third-party platforms.

Business Law Digest is compiled with the assistance of Baker & McKenzie. Readers should not act on this information without seeking professional legal advice. You can contact Baker & McKenzie by e-mailing Danian Zhang (Shanghai) at: [email protected]