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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

China’s new food safety law must provide courts with real enforcement authority

As I recently wrote in JURIST:

"China’s recently enacted "Food Safety Law" is, at least on paper, a significant leap forward in terms of proactive food safety measures designed to prevent crises before they happen. Provisions contained in the Law, such as creating a system to recall problem products, nationwide standards for allowable additives, and creating a schedule of fines for violators of the new provisions are certainly all steps in the right direction. One is left to wonder, however, how effectively the measures will be enforced.

Recent food-related health scares in China have erupted despite preexisting legal measures aimed at deterring manufacturers from adulterating their food products. The Product Quality Control Law, enacted in 1993, in theory established a product liability legal scheme on par with laws in the United States. The Quality Control Law, however, was of little use to the families of the nearly 300,000 infants sickened in the 2008 melamine-contaminated infant formula crisis due to the fact that Chinese courts simply refused to hear any of the filed cases. Similarly, the 2007 criminal trial and subsequent execution of Zheng Xiaoyu, the former director of the Chinese State Food and Drug Administration, appears to have done little to deter government corruption in food crises.

Despite these past failures, the new Food Safety Law provides a necessary bookend in the Chinese food safety scheme. Just as the Product Quality Control Law was designed to react to product safety disasters, by allowing victims of such disasters some recourse against negligent manufacturers, the Food Safety Law aims to prevent food safety disasters before they happen. Still, for the sake of the Chinese public, let’s hope that the elephant in the room – Chinese courts’ lack of enforcement authority – is finally addressed and resolved with the enactment of the Food Safety Law. The stakes are simply too high at this point for the government to generate false enforcement measures, aimed at restoring consumer confidence, and then go back to conducting business as usual."