Q1. What is the current state of the environmental legislation in China?
A1. The Standing Committee of China’s National People’s Congress (NPC) finalized the third draft of amendments to China’s Environmental Protection Law at the end of October 2013, while the Law would have to undergo a fourth draft before the New Environmental Protection Law enters into force.
Q2. According to the likely first amendment of the Environmental Protection Law, what kind of areas does the amendment focus on?
A2. The amendments emphasized seven key areas: i) the overall role of the law, ii) the responsibilities of local governments, iii) the sharing of environmental data, iv) preventing pollution related to farming in rural areas, v) public participation, vi) information transparency and vii) punishment.
Q3. Who can initiate class-action law suits according to the current law?
A3. The list of claimants is limited, and the best known might be the quasi-governmental All-China Environment Federation.
Q4. The third draft seems to reflect that the legislature is convinced by the arguments that the claimant list should be extended. More NGOs may be allowed to initiate proceedings. What conditions of a claimant have been prescribed by the third draft?
A4. In order to initiate an environmental class-action lawsuit, the claimant should:
1. Be a national organization
2. Be registered with the Civil Ministry
3. Have been continuously active for at least 5 years
4. Have a “good standing”
Q5. Since china has become the key importer and exporter on the world stage, food safety is one of the major concerns of the Chinese government. How does it impact the related legislation in China?
A5. It leads to the overhaul of the food safety law in 2013 as the key legislative work of China’s cabinet, which could stipulate harsher deterrent penalties and more stringent measures compared with the former one which was enacted in 2009 in response to the melamine infant milk scandal in 2008.
Q6. What are the applicable laws and regulations that deal with Food Safety in China?
A6. There are the Food Safety Law (2009), Product Quality Law Standardization Law, Metrology Law, Law on the Protection of Consumer Rights and Interests, Law on the Quality and Safety of Agriculture Products, Criminal Law, Food Hygiene Law, Law on Import and Export Commodity Inspection, Law on Animal and Plant Entry and Exit Quarantine, Frontier Health and Quarantine Law and Law on Animal Disease Prevention etc., while specific administrative regulations and departmental rules have been stipulated by the governmental agencies to further protect the public on food safety issues. Further, there are over a thousand “national standards” concerning food safety in China.
Q7. What kind of penalties does criminal prosecution apply?
A7. Chinese courts have handed down penalties ranging from fines, life imprisonment and the death penalty (for fatal cases of serious food safety breaches), and sentencing for food safety crimes becomes harsher since the Supreme Court repeatedly announcing its stance publicly.
Q8. How many Food Safety cases have been heard by Chinese court, and its outcome?
A8. According to relevant report, between 2010 and 2012, the Chinese courts have heard 1,533 criminal cases related to the unsafe food and the production, and 2,088 people were sentenced respectively.
Q9. How about the status of the food recall system in China?
A9. The food recall system is stipulated in the Provisions of the Administration of Food Recall (“Provisions”) which were promulgated by the General Administration of Quality Supervision, Inspection and Quarantine of the PRC (AQSIQ) in 2007.
Q10. What are the main contents of the “Provisions”?
A10. It mainly provides for the assessment and investigation standards of food safety hazards, implementation methods for food recalls, and the legal liabilities for breaching the food recall system.
Q11. Who would be liable for the sale of unsafe food according to the “Provisions”?
A11. The Provisions clearly state that the food producers and vendors should bear the legal responsibility for preventing and eliminating unsafe food. It is required that the food producers and vendors shall stop the production, circulation and sale of unsafe foods, report such unsafe foods to the relevant authorities and notify the customers or vendors of the same.
Q12. Does the food recall have to be compulsory? What if the recall fails?
A12. Food recalls can be voluntary or compulsory, while the food producers and vendors are encouraged to voluntarily recall their defective food products. According to Article 34 of the Provisions, “where a food producer voluntarily recalls its food, a lighter or mitigated punishment may be imposed.” Failure to carry out such recalls will lead to a series of legal liabilities. The administrative penalties for non-compliance with compulsory recalls are increased.