Once the sampling results are unqualified, food producers and operators are likely to face legal responsibilities such as high fines. Then, what actions should food producers and operators take after learning that the sampling results are unqualified? How to strive for relatively favorable results? Based on relevant practical experience, this paper puts forward analysis opinions and suggestions for food producers and operators.
First, food producers and operators should take countermeasures after learning that the sampling results are unqualified.
1. Product recall and other measures should be taken immediately.
According to the Measures for the Administration of Food Safety Sampling Inspection, food producers and operators shall take the following actions immediately after learning that the food they produce and operate is unqualified:
Seal up and suspend the production and operation of unqualified food; Notify upstream producers (if any), downstream operators and consumers; In accordance with the requirements of the Measures for the Administration of Food Recall, recall unqualified foods that have been put on the market for sale; Investigate the causes of non-conformity and make rectification, and report the handling situation to the local market supervision department in time; Actively cooperate with the investigation and handling of market supervision departments; After receiving the conclusion that the sampling inspection is unqualified, the food business operators shall also publicize the unqualified product information in a prominent position in the sampled business premises in accordance with the provisions of the State Administration of Market Supervision.
Once entering the punishment procedure, food producers and operators who actively take the above risk control measures and cooperate with the investigation will generally be comprehensively considered by the market supervision department as a lighter or mitigated circumstance.
2. You can apply for a second interview.
The general market supervision department will not inform the food that has passed the sampling inspection; For the unqualified food, the local market supervision department will send a notice of sampling results with inspection report to the food producers and operators who have been sampled. According to Article 30 of the Measures for the Administration of Food Safety Sampling Inspection, producers and operators have the right to request re-inspection if they have objections to the sampling conclusion. Regarding the re-inspection procedure, the following points are worth noting:
(1) The application for reinspection shall be made in writing within 7 working days from the date of receiving the notice of sampling inspection results. If an application for reinspection is not made within the prescribed time limit, it shall be deemed that there is no objection to the inspection conclusion;
(2) Food producers and business operators may not only apply for reinspection of the inspection conclusion, but also raise objections to the sampling process, authenticity of samples, inspection methods, application of standards and other matters of the sampled food;
(3) The re-inspection conclusion is the final inspection conclusion. If the re-inspection results are still unqualified, the market supervision department shall conduct verification and disposal.
It should be noted that during the re-inspection, food producers and operators shall not stop fulfilling the obligations of 1 such as product recall. If the food producers and operators do not take the initiative to perform, the market supervision department will order them to perform.
3. Prepare media response
According to Article 46 of the Measures for the Administration of Food Safety Sampling Inspection, the market supervision department will publicly supervise the sampling results and relevant information on the verification and disposal of unqualified food through government websites and other media. If the food producers and operators are well-known enterprises, or the food involved is special food [1], it will easily attract media attention and lead to large-scale negative reports, which will have an impact on future production and operation. Therefore, food producers and operators should be prepared to deal with the media as soon as possible when they know that their food is unqualified. For some malicious false reports, we can take necessary legal measures to safeguard our reputation and legitimate interests.
Second, the responsibilities that food producers and operators may face.
According to the relevant provisions of the Criminal Law and the Food Safety Law, if the inspection conclusion finally determines that the sampled food is unqualified, the legal responsibilities of the producers and operators shall be determined according to the illegal nature, harmful consequences and severity of the production and operation, including two specific types:
The first is criminal responsibility, which mainly includes "the crime of producing and selling food that does not meet the safety standards" stipulated in Article 143 and "the crime of producing and selling toxic and harmful food" stipulated in Article 144 of the Criminal Law. According to the relevant regulations, the person in charge and other directly responsible personnel who can be directly responsible for the enterprise are sentenced to life imprisonment and fined.
The second is administrative responsibility. In general, in most cases, penalties are imposed according to Articles 123 to 125 of the Food Safety Law. Details are as follows:
Regarding the calculation of "illegal income", neither the Food Safety Law nor the implementation regulations have made clear provisions, and the calculation methods are not uniform throughout the country at present. For example, according to the "Guiding Opinions of Beijing US Food and Drug Administration on Handling Food-related Cases (Trial)", it is calculated according to the sales volume (sales quantity × sales unit price); In Shanghai, food-related punishment cases are generally calculated according to gross profit (net profit in individual cases), that is, the cost of purchasing food can be deducted, and the cost of paying taxes and fees can also be deducted in individual cases.
Regarding the calculation of the fine, if the value of the goods is more than 10,000 yuan, it shall be calculated by multiplying the value by the corresponding multiple. Regarding the "value of goods" as the basis for calculating the fine, neither the Food Safety Law nor the implementing regulations clearly stipulate it. In practice, it is generally calculated by the producer's production quantity or the operator's purchase quantity × the sales unit price. Because unsold inventory products are also included in the "purchase quantity" [2], and the value of goods is calculated according to the sales unit price (not the purchase price), the value of products operated by manufacturers, general distributors or food operators with large purchase quantity is relatively high, and if a fine of more than 5 times and less than 30 times is imposed, the fine amount may be very huge.
In addition, food producers and operators may also face the risk of being asked by consumers to bear civil liability for compensation.
Three, the main points of defense that food producers and operators can claim
1. Food business operators may request exemption from punishment according to Article 136 of the Food Safety Law.
Because in most cases, food does not meet the food safety standards caused by producers, it is unfair to ask the middle and low-end food operators in the whole food supply chain to take full responsibility for food safety; At the same time, food safety problems are hidden, and it is unrealistic to ask operators to inspect food one by one before selling it, which will also cause huge waste of resources. Therefore, it is generally believed that the obligations of food operators are limited. In this regard, Article 136 of the Food Safety Law specifically stipulates that food business operators who have fulfilled the obligations of incoming goods inspection stipulated in this Law and have sufficient evidence to prove that they do not know that the purchased food does not meet the food safety standards and can truthfully explain the source of the purchased food may be exempted from punishment, but the food that does not meet the food safety standards shall be confiscated according to law.
However, there are strict restrictions on the application of Article 136 of the Food Safety Law:
First of all, because this article stipulates that punishment can be exempted, not that punishment should be exempted, the market supervision department has certain discretion.
Secondly, this article only applies to food operators, not producers. However, for importers of imported food, although they are not "producers" of food, because the producers of imported food are overseas enterprises, in practice, food importers are generally required to bear more food safety responsibilities, even equal to "producers", and the application of Article 136 of the Food Safety Law is usually stricter to avoid punishment.
Third, the three applicable conditions stipulated in this article must be met at the same time. Among them, in law enforcement practice, food operators are generally required to perform different levels of obligations according to their scale and position in the food supply chain. For example, for small food operators, they only need to fulfill the basic obligations stipulated in Article 53 of the Food Safety Law [3]; However, for large wholesalers, it is necessary to fulfill the obligation of high attention, requiring food operators to pay attention to food safety issues and take the initiative to take measures to find problems [4]. In addition, some people think that the understanding of "incoming inspection obligation" should include not only the incoming inspection obligation stipulated in Article 53 of the Food Safety Law, but also the self-inspection and self-correction obligation stipulated in Article 47 and the wholesale sales record obligation stipulated in Article 53, paragraph 4 [5].
2. It is advocated that no punishment shall be imposed according to Article 27 of the Administrative Punishment Law.
Article 27 of the Administrative Punishment Law stipulates that if the illegal act is minor and corrected in time, and no harmful consequences are caused, no administrative punishment will be imposed. In line with the provisions of this article, food producers and business operators may claim not to be punished accordingly. However, the applicable conditions of this article are also strict. For example, according to the "Beijing Food Administrative Punishment Discretion Benchmark", to meet the above conditions, the following conditions must be met at the same time: (1) The risk of the products involved is low; (two) the number of products involved is small and the value of goods is low; (three) the parties voluntarily stop the illegal act, and the illegal act has not caused harmful consequences; (four) has not caused adverse social impact; (5) There is no aggravating circumstance.
3. Advocate a lighter and mitigated punishment.
According to the Food Safety Law, the Regulations for the Implementation of the Food Safety Law and the relevant supporting provisions of the Administrative Punishment Law, administrative penalties involving food safety may be given a lighter or mitigated punishment if they meet the relevant conditions. Under normal circumstances, circumstances that can be given a lighter or mitigated punishment include:
(1) Stop production and operation and implement food recall;
(2) Taking other effective measures to reduce or eliminate food safety risks without causing harmful consequences;
(3) the parties take the initiative to eliminate or mitigate the harmful consequences of illegal acts;
(four) actively cooperate with the market supervision department to investigate, truthfully state the illegal facts, and actively provide evidence;
(5) There is sufficient evidence to prove that the parties have no subjective intention or gross negligence.
In addition, local governments have detailed provisions on the discretion of administrative punishment in the field of food safety.
Four, food producers and operators can apply for administrative and judicial procedures.
1. Apply for a hearing before the market supervision department makes a decision on punishment.
According to the Administrative Punishment Law and the Interim Measures for Hearing Administrative Punishment in Market Supervision and Management, if the market supervision department intends to make an administrative punishment decision on the operator, such as ordering to stop production or business, revoking the license or license, and imposing a fine of more than RMB1100,000, it will inform the parties that they have the right to request a hearing. Food producers and operators can apply for a hearing within three working days from the date of the notice of hearing, and can entrust one or two agents to attend the hearing.
Hearing procedure is an important administrative procedure for producers and operators who may be subject to administrative punishment to safeguard their rights. Through the hearing, you can play an active role in the following aspects:
First, you can cross-examine the facts and evidence identified by the market supervision department. During the hearing procedure, the case-handling personnel will state the facts of the case identified in the investigation, and the food producers, operators or agents may require the case-handling personnel to produce relevant evidence, and may express cross-examination opinions to exclude illegal evidence and clarify relevant facts;
Second, you can present evidence in favor of food producers and operators in the hearing, fully advocate the reasons for exemption and non-punishment, and the reasons for lighter or lighter punishment, and gain the understanding and support of the market supervision department.
The third is to refute the opinions of the case handlers through hearings and debates, put forward opinions and opinions that are beneficial to food producers and operators, and emphasize them.
In the hearing procedure, the staff of the legal department of the market supervision department generally acts as the moderator. According to the principle of "separation of investigation and trial", except for summary procedures, the legal department usually has to review and put forward opinions before making a decision on punishment. The opinions and opinions put forward by food producers or business operators or their agents at the hearing will have a direct impact on the legal audit opinions put forward by the legal department.
2. Apply for administrative reconsideration and bring an administrative lawsuit after the market supervision department makes the punishment decision.
Food producers and business operators who refuse to accept the decision on administrative punishment may, within 60 days from the date of receiving the decision on punishment, apply for administrative reconsideration to the people's government at the same level (district government) or the market supervision department at the next higher level (municipal market supervision department) that made the decision on punishment; You can also bring an administrative lawsuit directly to the grassroots people's court where the market supervision department that made the punishment decision is located within 6 months from the date of receiving the punishment decision without reconsideration. After administrative reconsideration, food producers and business operators who refuse to accept the reconsideration decision may bring an administrative lawsuit to the people's court.
Compared with administrative litigation, administrative reconsideration belongs to the internal processing procedure of administrative organs, which is relatively less confrontational and has a longer time limit, but the final correction range is relatively small. Administrative litigation enters the judicial process, which is more antagonistic, but the court's review of the legitimacy of administrative law enforcement agencies is relatively strict, paying more attention to fairness and rationality; At the same time, when food producers and business operators file an administrative lawsuit against administrative punishment, they may request the people's court to review the normative documents made by administrative organs.
Verb (abbreviation of verb) Suggestions on Compliance Management of Food Producers and Operators
1. Establish daily compliance management system.
Establish a risk investigation mechanism to eliminate risks in advance through regular or irregular inspections in cooperation with external legal consultants or food safety management consultants;
Establish a food safety response mechanism, set up a special response team, determine a unified window, and respond to government investigations and media. , and formulate a response plan as soon as possible for possible problems, so as to deal with problems in a timely and effective manner;
Carry out internal training and study, and strengthen the implementation of various systems.
2. Pay close attention to the food-related national standards for production and operation in time.
Seriously understand and master the national standards and industry standards related to the company's production and business activities, share information within the company and reflect it in internal systems and standards;
The scope of collection and sorting includes not only the food produced, but also the relevant additives, labels and other standards.
3. Pay attention to reducing your own risks in the transaction.
According to the Food Safety Law, establish a system of incoming inspection and food sales records, and conduct incoming inspection and sales records according to law;
Pay attention to the preservation of food production/business license, food factory certificate, import food declaration form, inspection and quarantine certificate and other documents of upstream food producers and operators, as well as the incoming inspection and sales records of enterprises;
According to the actual situation such as the risk of products, regularly or irregularly or require suppliers to send the food they operate for inspection, and check the inspection report;
Through contractual agreements with upstream and downstream food producers and operators, possible economic losses will be minimized.
4. Hire professional legal counsel
In daily operation, with the cooperation of legal counsel, establish daily compliance management system, answer legal questions in time, and carry out internal training related to food safety regulations;
In the face of administrative punishment or consumer claims, you can entrust a lawyer to handle it, and strive for a lighter or mitigated punishment, even exemption or no punishment, or reduce the amount of compensation. footnote
[1] refers to health food, formula food for special medical use and infant formula food.
[2] According to the author's understanding, in individual punishment cases, there are also cases where the market supervision department deducts the number of products recalled by upstream suppliers when calculating the value of goods.
[3] According to the provisions of Articles 50 and 53 of the Food Safety Law, when purchasing food, food business operators shall check the supplier's license and the food factory inspection certificate or other qualified certificates; A food incoming inspection record system shall be established to truthfully record the name, specification, quantity, production date or batch number, shelf life, purchase date, supplier name, address and contact information of the food, and keep relevant vouchers. The storage period of records and vouchers shall not be less than six months after the expiration of the product shelf life; If there is no clear shelf life, the shelf life shall not be less than two years.
[4], Hu: "Analysis of Article 136 Obligation of Incoming Goods Inspection", in China, 20 17, 10. The writer is an employee of Dongcheng District of the US Food and Drug Administration.
[5] Li: "Reflections on the implementation of new topics", contained in "China Business News" 20 16 1.7 (003). The writer is an employee of Lishui County Administration for Industry and Commerce in Nanjing, Jiangsu Province.
[6] If the operator is a natural person, it is 10000 yuan.