Xinhua reports that in the wake of numerous domestic tainted food scandals, China enacted a sweeping new Food Safety Law on Saturday.
Of course, announcing that a law has been passed in China doesn’t tell you what’s going to actually happen. First, the general language of the law needs to be turned into detailed implementation procedures. (In the words of Tom Waits from his song Step Right Up, “The large print giveth and the small print taketh away!”) And even when the right words are in place, there is still implementation. Despite the image of China as a totalitarian state, enforcement of central directives in the provinces has gotten more and more difficult following the devolution of many governance responsibilities to localities in the 1990s.
That being said, the country was in desperate need of a revision to its food safety law, which has not been updated since 1996. I excerpt its main provisions below, with commentary:
“…the State Council, or Cabinet, would set up a state-level food safety commission to oversee the entire food monitoring system, whose lack of efficiency has long been blamed for repeated scandals. Departments of health, agriculture, quality supervision, industry and commerce administration will shoulder different responsibilities.”
The requirement that a food safety commission be set up under the State Council is a response to the problem of overlapping, unclear or conflicting responsibilities for food safety among the relevant government agencies. It also shows how seriously the National People's Congress (NPC) regards the situation. The State Council oversees the provincial governments and all of the ministries, and commissions are set up under the Council only for major, cross-cutting issues for which overarching powers are needed. This one will have the authority to divide up resources and clarify responsibilities among the ten different ministries and agencies charged with ensuring food safety.
“The law stipulated a ban on all chemicals and materials other than authorized additives in food production, saying that ‘only those items proved to be safe and necessary in food production are allowed to be listed as food additives.'. . .Health authorities are responsible for assessing and approving food additives and regulating their usage.”
This sounds like progress, but the devil is in the details. Critics of the U.S. law on food additives, for instance, point out that many questionable chemicals were grandfathered in because they were already in use when the law passed, and that the burden of proof is always on those seeking to stop approval of new additives rather than on the food companies.
“Producers of edible farm products are required to abide by food safety standards when using pesticide, fertilizer, growth regulators, veterinary drugs, feedstuff and feed additives. They must also keep farming or breeding records.”
Stated in such general terms, this one is nearly impossible to interpret. Since “producers of edible farm products” includes almost all of China’s 300 million farmers, this could simply be—like many of China’s laws—a regulation that sounds sweeping and strict but is unenforceable in practice. Worse, if record-keeping or sanitary requirements are onerous, enforcement of food safety regulations will be a huge additional burden for China’s beleaguered farmers, yet another mechanism for corrupt local governments to extract rents or control production.
“Offenders could face maximum fines which would be 10 times the value of sold products. If businesses are found producing or selling a substandard foodstuff, consumers can ask for financial compensation which is 10 times the price of the product. That's in addition to compensation for the harm the product causes to the consumer.”
This market-based approach to enforcement has precedent in China. In the 1990s, China passed a consumer protection law mandating that anyone who sold counterfeit goods should be compensated by the manufacturer at double the sale price. Uncovering fraud in order to claim compensation became a cottage industry, with some high-profile success stories such as Wang Hai, who was known (or dubbed himself!) as “China’s Ralph Nader.” But while Nader’s goal was to promote more effective government action on behalf of consumers, the Chinese government is essentially asking consumers to take over the job of law enforcement entirely. The law made no measurable dent in the spread of counterfeit goods, because there is little legal or administrative power to back up consumer grievances.
Perhaps the added incentive of a ten-fold compensation measure is in recognition of the earlier law’s weakness, and perhaps there will be stronger enforcement support for this measure, but unfortunately, China’s consumer rights movement still has a long way to go!
“To better protect consumer rights, the law bans food safety supervision and inspection agencies, food industry associations and consumers' associations from advertising food products.”
This is a response to the corrupt practices and conflicts of interest that plague the agencies and associations mentioned. (Imagine Consumer Reports or the FDA being paid by KFC to declare Extra Crispy a “heart-healthy” food!)
“Individuals or organizations are prohibited from advertising substandard food products. Those advertising such products would face joint liability for damages incurred.”
Permit me a short digression. Ultimate power in China has always been in the hands of the Communist Party, but there is also a legislature, the National People’s Congress (NPC). Despite acting as a rubber-stamp for Party decisions for most of its history, the NPC has in the past two decades grown if not independent then at least a bit more feisty. (Only a few laws have been defeated, but others have been withdrawn due to strong opposition from delegates.) It has also emerged as a forum for genuine debate over questions on which there is no consensus, and a place where new issues get raised.
This article prohibiting “individuals or organizations” from “advertising substandard food products” is an example of how public opinion gets expressed through the NPC in ways that would not otherwise be taken up by the government. It is clearly a direct response to the public outrage at celebrities such as actress Deng Jie who endorsed Sanlu Milk products that turned out to be contaminated with melamine.
The Bottom Line: Details, Teeth, Money
A lot will depend on how the law gets fleshed out, presumably by the new State Council Food Safety Commission. What does it mean to say that an additive must be “safe and necessary” to be approved for use? How will food safety standards be set throughout the supply chain, and by whom? Will the Commission or an agency under it have independent enforcement powers, or will these still fall to other agencies?
That one is BIG: enforcement. Laws are made centrally in China but enforced locally, and whether it’s because they’re in cahoots with local lawbreakers, lack capacity or disagree on principle, local leaders often simply don’t carry out Beijing’s orders. To counter the unwillingness of local governments to carry out environmental laws, the Chinese Ministry of Environment set up five regional enforcement offices in 2006. Is this the direction that food safety enforcement is moving?
If so, it will be very costly. In 2007, an industry consulting firm estimated that China will need to invest more than $100 billion by 2017 to build a modern food safety infrastructure. This was extrapolating demand growth that has subsequently slowed considerably, and is based on assumptions about what a “modern food system” should look like that I don’t agree with—centralized, highly processed, energy-intensive—but it gives a flavor for the magnitude of the investment that is needed.
Finally, let’s pull back from the new Food Safety Law itself for a second. Ultimately, China’s food safety problems are unintended consequences of a set of decisions the country’s leaders made about food production, technology, economic growth and China’s insertion into the global system. Those decisions have set the country on a path that is fundamentally unsustainable, and as the U.S. financial crisis has gone global, the wheels are starting to come off. It’s time for a more basic re-think of how and what to feed China.
