CFDA Submits to WTO the Third Revised Draft Regulation on the Implementation of the Food Safety Law
On August 14th, 2017, China Food and Drug Administration (CFDA) submitted the Revised Draft Regulation on the Implementation of the Food Safety Law (hereinafter "Draft Regulation") to World Trade Organization (WTO) for comments by October 13th, 2017. Compared to the previous draft announced in December 2015 (see: Keller and Heckman China Regulatory Matters), the revised Draft Regulation has streamlined the regulation from 200 to 98 articles.
Food labeling and cross-border E-Commerce (CBEC) are among the most significantly changed areas. Notably, the new Draft Regulation no longer contains labeling requirements such as the prohibition of sticker use on imported food products and that all prepackaged foods must be directly printed with a Chinese label before being imported into China.
Below we highlight a few other areas that could be impacted by the Draft Regulation.
Removal of Third Party Safety Assessment Requirement
Under Article 36 of the previous draft regulation, when applicants submit safety assessment information to NHFPC for new food ingredients, food additives
Food Production and Operation
After the publication of the Food Safety Law in 2015, CFDA issued two administrative measures implementing the food licensing system, i.e., Measures for the Administration of Food Production License and Measures for the Administration of Food Operation Licenses.
Now, instead of being called a "food operation license", it is now called a "food sales and catering service license" in the Draft Regulation. In addition, the valid period for the food sales and catering service license (currently food operation license) is revised from 5 to 3 years.
Food Import and Export
According to the previous Draft, imported foods will be managed and controlled based on a number of factors such as food safety risk, enterprise safety control capacity and food safety conditions in the exporting countries (regions). Specifically, foods of higher risk are subject to more comprehensive inspection at ports. Although this language no longer exists in the current Draft, the same spirit of risk management endures. Specifically, China's General Administration of Quality Supervision, Inspection
It is important to note, however, that in June 2017, AQSIQ notified WTO for comments re the Administrative Measures on General Certification of Imported Food (hereinafter "Administrative Measures"). Under the Administrative Measures, all imported foods shall be accompanied with a certificate issued by authorized agencies or designated organizations in the exporting country. The certification is designed to prove that all imported foods are produced, processed, stored, transported and exported under appropriate supervision and suitable for human consumption. The Draft Regulation echoes the new AQSIQ certification requirements in Article 49, which states that food importers shall report and attach qualified certification materials to the entry-exit inspection and quarantine authorities.
AQSIQ's new Administrative Measures, scheduled to become effective on October 1st, 2017, is causing quite a stir in the food industry because it places a new burden on every imported food, regardless of risk category. In fact, many government officials from around the world have raised
On a related note, on September 13th, 2017, AQSIQ notified WTO regarding the draft Measures for the Supervision and Administration of Import and Export Food Safety. According to Article 15 of this draft Measures, the following documents can be accepted as the "quality proof document": declaration of compliance, inspection reports and certification documents issued by exporting country/region's authorities in charge or authorized agencies. Article 15 also states that when certification documents are required to be issued by government authorities of exporting countries, the format, content
Third-party Online Food Trading Platform and Liabilities
Both Food Safety Law (FSL)and