China Food Law Year in Review: Reflecting on the Year of Rat and Welcoming the Year of Ox!

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Despite the global pandemic, China continued to make progress in 2020 with its food regulations and policies, including the formulation of new rules to cope with the safety of imported foods arising from COVID-19. The country maintained its routine development of food regulations and standards to optimize the food law system and made progress toward building a healthier China by 2030.[1] In this article, we summarize the major regulatory changes in 2020 concerning food products and provide an outlook on what we can expect to see in 2021.

The management of imported foods by China in 2020 continued to transition towards the risk-based approach that was laid down in the Food Safety Law.[2] The revised draft Registration Regulation for Overseas Manufacturers was released in 2020,[3] which requires facility registration for all overseas food manufacturers per risk level of the manufactured products, i.e., specified foods vs. unspecified foods. Manufacturers of specified foods (identified by the authority to include foods such as dairy, nuts and seeds, and dried fruits) must initiate their registration with the Chinese government at the competent authority in their home country. Conversely, manufacturers of unspecified foods can directly file their applications with the Chinese authority or through an agent in China.

The draft amended Administrative Measure on Import and Export Food Safety
[4] was also issued in 2020, which proposed new requirements governing the inspection and evaluation of imported foods. Compared with the current rules,[5] the draft set forth comprehensive measures to conduct conformity assessment of imported foods. For example, video inspection was noted as a routine measure to assess and confirm the safety and compliance with the Chinese requirements (e.g., the authorities will inspect effectiveness of the food safety management system of a foreign food company through video conference with the company).

Imported cold-chain foods became a focal point of food safety management in 2020. China adopted stricter rules to strengthen the supervision over imported cold-chain foods to prevent and control inbound COVID-19 transmission. For example, on September 11, 2020, the General Administration of Customs (GAC) issued Announcement No.103/2020 [6] to implement urgent preventive measures targeting overseas companies that export cold-chain foods to China. Per the announcement, GAC is authorized to suspend the import of food from an overseas company for one to four weeks if the company's cold-chain food or packaging tests positive in a nucleic acid test. Additional guidance documents on virus prevention of cold-chain food disinfection throughout production and operation also were developed by the authority.[7] Given the pandemic continues, the authority now has expanded these containment measures to all imported products, whether imported via cold-chain or not.[8] Industry has expressed` concern on the implementation and vagueness of these policy documents which create regulatory uncertainties. Close follow-up in this regard is advisable to keep up with the most recent interpretation and practice to minimize the potential impact on business.

Health foods were among food products for which significant progress was achieved via the development of regulations and standards. China continued to finalize regulations to help fill in some regulatory gaps to implement the new "dual-track" system for health foods, i.e., registration and notification. For example, on December 1, 2020, the Chinese State Administration for Market Regulation (SAMR) issued two positive lists setting forth permitted ingredients and claims for health food subject to notification (e.g., vitamins and minerals).[9] On November 24, 2020, SAMR also published the long-waited draft Catalog of Approved Function Claims for Health Food (Non-nutrient Supplements) 2020[10] for public consultation, in which 24 health food claims were authorized along with the corresponding testing protocols (e.g., efficacy tests). This was particularly important to industry since many testing protocols for health foods with certain function claims were abolished in 2018 without in-time replacements. However, SAMR's Catalog now provides clearer guidance for industry to prepare petitions in China seeking approval of health foods subject to registration (known as "blue hat" approval).

Alternative protein food, such as plant-based food, is a sector that attracted much attention in 2020. While the Chinese authority has not yet issued any new regulation or national food safety standard specific to plant-based food, discussion is ongoing to explore a proper framework for the new sector. Notably, SAMR's draft Measures for the Supervision and Administration of Food Labeling ("Labeling Measures"),[11] discussed in more detail below, established a requirement that when plant-based ingredients are used to imitate animal-derived food, words such as "imitated", "artificial," or "veggie" must be added to the product name section to indicate the true nature of the food. In response, industry has suggested to the Chinese authority to authorize the use of qualifying terms such as "plant-based" to describe the product. Industrial associations also have been promoting alternative protein products. In December 2020, the Chinese Institute of Food Science and Technology announced its voluntary group standard for plant-based meat product.[12] Additional details on the regulatory development of alternative protein foods in China were reported in Keller and Heckman's China Regulatory Matters (CRM) newsletters - Plant-Based Foods: Exciting Technology, But Don't Overlook the Regulatory Considerations and Chinese Food Industry Proposes the First Group Standard for Plant-Based Meat.

Chinese national food safety standards for food additives and nutrition fortifiers were under further development in 2020.[13] Revisions also were proposed to horizontal food safety standards, such as the maximum levels of contaminants, as well as to vertical product standards, such as the standards for cheese and whey powder.[14] Those draft standards are expected to be finalized later this year. In addition, in 2020, the Chinese National Health Commission (NHC) continued to review and approve new food ingredients and food additives, e.g., including seven new food ingredients and 35 new food additives through Announcements No.4,[15] No.6,[16] No.8,[17] and No.9[18] of 2020.

Food labeling standards were under review and revision in 2020. Notably, the draft GB 28050 National Food Safety Standard for Nutrition Labeling of Prepackaged Foods,[19] which details the nutrition labeling requirements for prepackaged foods, was released on August 31, 2020, by NHC. A range of changes were proposed in draft GB28050 in line with Beijing's 'Healthy China 2030'[20] campaign, e.g., sugar is added to nutrients subject to mandatory disclosure in the nutrition information panel. Also, China, for the first time, introduced a voluntary front-of-pack (FOP) nutrition labeling scheme in GB28050 by encouraging the industry to provide supplemental nutrition information on the front panel to facilitate consumer understanding, (see more details in our prior CRM newsletters - China Revamps Food Nutrition Labeling Regulations and China Places a Higher Priority on Food Nutrition).

As noted above, China released the draft Labeling Measures in July 2020.[21] The Labeling Measures detail the labeling requirements for various foods, including special foods, food ingredients, and food additives produced or distributed in China. Notably, industry has expressed concern that the draft would prohibit label stickers for imported foods and, therefore, correction of a labeling error through affixing a sticker may no longer be available. It remains to be seen what the final text of the regulation will say.

The Chinese government also has been working on the amendment of GB 7718 General Standard for the Labeling of Prepackaged Foods. A draft revision was published for public consultation in late 2019 and we anticipate this standard to be published in 2021. Details of draft GB 7718 were reported in our prior CRM newsletter - Are You Ready for China's New Food Labeling Requirements?

Food advertisements were under closer government and media scrutiny in 2020, as food producers and operators attempted to take advantage of consumers' fear of catching Coronavirus. In March 2020, SAMR announced Typical False and Non-compliant Advertising Cases (1st Batch),[22] in which they enumerate claims that are considered suggesting disease treatment functions (e.g., effective in preventing and treating the new coronavirus), and thus, are prohibited for their falsehood or exaggerating effect. Sensitive terms such as "antiviral", "antibacterial", "killing germs", "enhance immunity" also are being questioned by market watchdogs.

U.S.-China Trade Agreement ("Agreement") [23] between China and the United States reached in December 2019 has brought changes to the food regulations. For instance, in May 2020, China, fulfilling its commitment in the Agreement, released a provisional product standard for dairy permeate powder that allows the industry to export the product to China that was not possible prior to the Agreement.[24] For more details on this standard, please see our CRM newsletter - Getting to Know the U.S.-China Trade Agreement: Obtaining a Chinese Standard for an Imported Food. Notably, there are certain provisions that have not met the deadline set forth in the Agreement.[25]

Anti-food waste was also an important topic in 2020. To ensure food security, the Chinese government is currently working on an Anti-Food Waste Law[26] to establish the responsibilities of government bodies and legal obligations of different market participants (e.g., food enterprises, catering service providers, online food delivery platforms, individual consumers, industry associations, schools, and social media). For instance, the draft law proposed to establish a food donation system and develop further rules to govern expired foods.

Outlook for 2021

As the Chinese authorities endeavor to further improve its food safety management system, we expect to see some draft regulations and standards for imported food, health foods, and food labeling, etc., finalized in 2021. Consumers' growing demands for alternative protein foods will likely drive forward the process for establishing applicable regulations and product standards at a more rapid pace. In the meantime, some administrative measures that were adopted to ensure food safety and security during the pandemic may become the 'new normal' in China. Surviving the uncertainty in 2020, the food industry awaits a thriving market in 2021.

If you are interested in more details or have further questions, please do not hesitate to contact David Ettinger (ettinger@khlaw.com), Jenny Xin Li (li@khlaw.com), Yin Dai (dai@khlaw.com) or your existing contact at Keller and Heckman LLP.

China Food Law Year in Review: Reflecting on the Year of Rat and Welcoming the Year of Ox!

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