TY - JOUR
AU1 - Snyder, Francis
AU2 - Kim, Yi Seul
AB - Abstract This article provides an overview of China’s 2015 Food Safety Law (FSL 2015). It analyses the main innovations of FSL 2015 compared to its predecessor, FSL 2009, which was China’s first-ever legislation expressly on food safety. It shows that FSL 2015 represents a dramatic step forward in China’s regulation of food safety. It also sets FSL 2015 in its social and economic context, drawing on the logic ascribed to Deng Xiaoping. It first emphasizes the gradual normative progress of Chinese food safety legislation, using the metaphor of crossing the river by feeling the stones—in other words, by step-by-step gradualism, exploration, and experimentation. Then, it notes that many stones in the watery pathway may be slippery, risky, insecure, or painful and that major difficult challenges remain. Finally, it considers certain structural obstacles or systemic features as overhanging branches to minimize or avoid; they constitute continuing issues in ensuring safe food in China. The article also compares FSL 2015 with selected features of food safety law in the European Union, the USA, and Brazil. While showing that FSL 2015 draws substantially on an international normative repertoire for food safety, it also emphasizes the extent to which FSL 2015 has specific Chinese characteristics. Introduction Food safety is a universal concern. Recent developments in efforts to ensure food safety in China are of great interest to people in China and all other countries, especially in light of China’s ambitious project called the Silk Road Initiative (also called One Belt, One Road). China’s Food Safety Law 2015 (FSL 2015) is designed to improve food safety in China and restore public confidence about food safety in China at home and abroad.1 It affects consumers, producers, wholesalers, retailers, importers, and exporters of food worldwide. This article analyses the main innovations of FSL 2015 compared to its predecessor, FSL 2009, which was China’s first-ever legislation expressly on food safety. It shows that FSL 2015 represents a dramatic step forward in China’s regulation of food safety.2 It also sets FSL 2015 in its social and economic context and shows that significant challenges remain if the objective of safe food for all people in China is to be achieved. While focusing mainly on positive law in analysing this very complex legislation, we seek also to put this important legislative reform in a broader theoretical framework, using sources from law and other disciplines.3 For this purpose, we draw on the logic of Deng Xiaoping. On the one hand, we emphasize not only the gradual normative progress of Chinese food safety legislation, using the metaphor of crossing the river by feeling the stones—in other words, by step-by-step gradualism, exploration, and experimentation. On the other hand, we also note that many stones in the watery pathway may be slippery, risky, insecure, or painful and that major difficult challenges remain. In addition, we consider certain structural obstacles or systemic features as low branches to minimize or avoid; they constitute continuing issues in ensuring safe food in China. Only time will tell whether FSL 2015 is capable of providing a pathway towards realizing its promise of improving the safety of food for most people. We situate these developments in a perspective of political and economic realism by referring to the eternal dialectic between normative progress and remaining challenges: a dialectic that is characteristic of almost all legislative reform. Virtually all legislation is a compromise between different interests, and almost none meets all its proponents’ expectations in normative terms. In addition, law on the books is rarely, if ever, reflected directly in law in action; in every society there is a gap, though the nature of and reasons for the gap may differ from jurisdiction to jurisdiction. Consequently, identification of appropriate comparators for the law on the books and also for the law in action is crucial. For law on the books, we anticipate that the Chinese government may take the USA and the European Union (EU) as comparators, partly because food safety law in these jurisdictions is more highly developed, so they provide templates and objectives for future progress, and partly because Chinese exports target the large US and EU markets and, hence, need to meet their standards. In view of their importance as normative templates, aspects of the US and EU regulatory systems are mentioned below. In terms of the law in action, however, we consider that the USA and the EU may not be the best comparators because of differences in per capita income and, hence, available economic resources. For example, World Bank statistics for gross domestic product per capita in Purchasing Power Parity terms in 2016, the most recent available, reported US $15,529.10 for China, compared to US $57,638.20 for the USA and US $39,602.10 for the EU; compare also US $15,123.90 for Brazil, US $24,788.78 for Russia and US $58,618.00 for Hong Kong special administrative region.4 We speculate that, all other factors being equal, per capita income and resources available are the best predictors of the safety of food for ordinary people. Consequently, regardless of the similarity of legislation, we consider it unrealistic to consider that the application and implementation of law would be similar in the USA, the EU, and China. For this purpose, Brazil would be a more instructive point of comparison. Consequently, we mention Brazilian law and practice on specific important points in the following discussion, even though a thorough comparison of food safety regulation in the two legal systems must await future research. This does not mean that Chinese food safety legislation is ‘fantasy law’, an expression used some years ago in the early law and development movement by common law commentators to refer to broad and ambitious legislative reforms in civil law systems, in which legislation was sometimes thought to play a guiding, teleological role: far from it.5 It does, however, mean that one should not expect the objectives or application of food safety law in China to be the same as in the USA or the EU. Nevertheless, this does not prevent one from identifying serious differences (the ‘stones’ and ‘branches’) between the law on the books and the law in action, which are due, for example, to flaws in the legislation, features of the social and economic context, or simply differences in resources. Indeed, undertaking this task is essential.6 This article makes three main arguments. First, FSL 2015 represents another step in the gradual adoption by China of many elements of an international normative repertoire for food safety policy and law; this process occurs in a historical context that is specific to China today. Second, in many respects FSL 2015 improves and innovates compared to its predecessors, but significant challenges remain; here we give selected examples. Third, there are also important systemic or structural obstacles to food safety law reform in China, and in assessing them it is important to focus on criteria and comparators which are appropriate and realistic in the Chinese context. These arguments are discussed in three sections, respectively. A brief conclusion summarizes the discussion. Crossing the river International normative repertoire for food safety In the field of food safety regulation, as in other internationalized fields of law such as anti-dumping law or competition law, we can identify an international normative repertoire, composed of ‘a handful of basic principles [involving] the constitution of a conceptual and normative repertoire, drawing on national legislation, multilateral negotiations and administrative [and judicial] decisions in several jurisdictions within a specific historical context’.7 This idea is based on an analogy to a theatrical or musical repertoire, from which a theatre company, orchestra, or other performing group draws as necessary and adapts to its specific audience. Usually, if not always, it involves some shifting combination of the international repertoire and local elements and innovations. In the partially globalized food economy of today, international and transnational institutions have been responsible for creating and developing the international normative repertoire for food, especially with a view towards trade. In institutional terms, the international normative repertoire for food safety derives primarily from the Codex Alimentarius Commission, created in 1963 in Rome by the World Health Organization (WHO) and the United Nations Food and Agriculture Organization,8 together with other transnational sites of food safety regulation, such as the World Trade Organization (WTO), created in 1995, and the International Food Safety Authorities Network, established by the WHO in 2004.9 In all such organizations, the USA and the EU have long played important, if not predominant, roles, so it is not surprising that their food safety regulatory systems have often served as pioneering normative models. China joined the WTO in late 2001, is a member of the International Food Safety Authorities Network, and now chairs the Codex committees on food additives and on pesticide residues and, hence, participates actively in making the rules. These institutions produce a vast array of concepts and norms, ranging from general principles to detailed technical standards. For food safety, the international normative repertoire includes ex ante prevention risk-based regulation, the precautionary principle, traceability, adequate alignment of domestic standards with international standards, clear administrative responsibilities, accountability, liability rules, and implementation of, and compliance with, the law. Ex ante risk-based regulation FSL 2015 represents another step in the gradual adoption by China of many elements of this international normative repertoire for food safety policy and law. A first element is contemporary risk analysis, which is composed of risk assessment, risk management, and risk communication. FSL 2015 goes farther than its predecessor, FSL 2009, in adopting international practices of risk analysis. For example, risk assessment calls for the use of scientific expertise in evaluating the likelihood of potential risks and refers to international best practices. FSL 2015 aims to ensure more stringent regulation of the entire food value chain. It establishes new, clearer, and more detailed obligations about production and operation process control in food production and food operation enterprises and stricter controls on raw materials, production, and inspections. In principle, these legal obligations represent a step towards adoption of the international standard method, the Hazard Analysis Critical Control Point, which seeks to regulate food safety ex ante at the most risky points in the food chain instead relying on ex post regulation after the product is on the market. In China so far, however, ex post regulation remains the general practice.10 In this respect, it differs substantially from the basic orientation of the EU Food Safety Law11 or the US Food Safety Modernization Act.12 Ex ante risk assessment and international cooperation are therefore not always used in practice. Virtually repeating FSL 2009, FSL 2015 requires that national food safety standards be based on risk assessment, including for edible agricultural products, and refer to international standards and international food safety risk assessment results.13 However, Tu Yongqian reports that the majority of China’s food safety standards have not been subject to a risk assessment.14 In addition, China Food and Drug Administration’s mid-November 2017 release of the Implementation Plan for the Control of Fraud and False Claims in Food and Health Food Products indicates the government’s intention of stronger implementation of food safety regulations. The Implementation Plan covers a broad range of issues from unlicensed production, false claims, and inaccurate labelling to marketing methods and illegal advertisements.15 Yet it does not go far enough in encouraging cooperation with international organizations, trading partners, and public and private enterprises to deal with what is actually an international problem.16 FSL 2015 specifies when a risk assessment must be conducted, including, where required, ‘to provide a scientific basis for formulating or revising the national food safety standards’, ‘[w]here new factors that may harm food safety are found’, or ‘other circumstances’ deemed necessary by the Ministry of Health (MOH) (which is now the National Health and Family Planning Commission [NHFPC] until very recent institutional reforms [see below]).17 Until March 2018, institutional arrangements were those set out in FSL 2015; very recent institutional reforms are considered later. Relevant departments of the State Council may make suggestions to the MOH (NHFPC) in ‘any circumstances where food safety risk assessment is required’,18 —for example, for health food—which refers to the China Food and Drug Administration (CFDA), the Ministry of Agriculture (MOA), and the General Administration of Quality Supervision, Inspection and Quarantine of the People’s Republic of China (AQSIQ).19 The MOH (NHFPC) is now required to publish the results of risk assessment. Entry and exit authorities are required to collect risk warning information released by international organizations and overseas government agencies. Precautionary principle An important element in the international normative repertoire for food safety policy and law is the precautionary principle, even though it is not shared by all countries—notably the USA—and despite the WTO Appellate Body’s conclusions in the EC – Beef Hormones case.20 Perhaps the most succinct expression of the precautionary principle in food safety law today is in the EU Food Law: In specific circumstances where, following an assessment of available information, the possibility of harmful effects on health is identified but scientific uncertainty persists, provisional risk management measures necessary to ensure the high level of health protection chosen in the Community may be adopted, pending further scientific information for a more comprehensive risk assessment. Measures adopted on the basis of paragraph 1 shall be proportionate and no more restrictive of trade than is required to achieve the high level of health protection chosen in the Community, regard being had to technical and economic feasibility and other factors regarded as legitimate in the matter under consideration. The measures shall be reviewed within a reasonable period of time, depending on the nature of the risk to life or health identified and the type of scientific information needed to clarify the scientific uncertainty’.21 FSL 2015 expressly includes the precautionary principle, which, at best, was only implied in FSL 2009.22 It states that ‘in the food safety work, priority shall be given to prevention, risk management and full process control shall be implemented, the whole society shall participate [‘social governance’], and a scientific and rigid regulatory system shall be established’.23 The State Council Health Department, jointly with other departments, is to formulate a national food safety risk monitoring plan, according to ‘the needs of such work as assessment of food safety risks, formulation and revision of food safety standards and food safety supervision and administration’.24 Lower levels of government are to adjust the plan to local circumstances. Article 109 provides for the establishment of a graded risk management system by the food and drug administrative department and the quality supervision department of people’s government at the county level or above, ‘based on food safety risk monitoring and risk assessment results and the food safety status’ of food.25 Food safety funding, regulation, and safeguards are to be included in the social and economic development plan prepared by people’s governments at or above the county level. However, FSL 2015 does not specify in detail how to deal with relations between different levels of government. It does not define basic ideas such as ‘based on’, monitoring, results, and ‘food safety status’. Nor does it guarantee how much funding or whether sufficient funding is to be included in local development plans. The different drafts of the Implementation Regulations all aimed to strengthen the fundamental system of food safety management. They provided in more detail for a food safety risk monitoring and notification system; they also completed the procedure of making food safety standards and spelled out food safety risk assessment methods. For example, the national food safety risk monitoring plan was to pay special attention to those foods that have not yet had food safety standards. Reinforcing the precautionary principle, the Implementation Regulations Second Revision now makes it mandatory for the food and drug administrative departments and related departments to inform related food producers and operators in a timely manner of any safety risks shown by the food safety surveillance result. This is stronger than the previous version of the draft, according to which the departments had the discretion to make such a decision in informing the producer and the dealers.26 Whether this can be implemented in practice remains to be seen. Traceability Also focusing on regulation of the entire food chain are innovations to introduce a system of traceability.27 Traceability complements record-keeping, but the two have different core functions. Record-keeping enables governments to ensure compliance with licensing and other administrative requirements, while traceability enables governments, businesses, or consumers to trace a food product from farm to table. The introduction of a system of traceability was originally mooted for 2013, but this proved to be impossible to put into practice. Under FSL 2015, the State is to construct a traceability system by encouraging producers and distributors to ‘collect and preserve production and distribution information and to establish the traceability system for food safety by means of information technology’.28 FSL 2015 requires the State to maintain a system for whole-process traceability of food. The CFDA, together with the MOA and other relevant State Council departments, is to establish a ‘collaborative mechanism for whole-process traceability of food safety’. Producers and food business operators (traders) are each required to establish a system to ensure food traceability—if possible, using modern information technology. They are required to ensure the traceability of food by keeping records regarding raw materials, packaging, transportation, storage, sale, inspection, and other items. FSL 2015 provides sanctions for failure to do so. Many of these provisions are likely to be ineffective in the short run, however. The establishment of a system of traceability for such a complex network of diverse food chains as in China, with many small producers and distributors, is likely to be a very long-term project, even using satellite and internet technology. Here the USA and the EU can provide useful models. Of equal importance, however, are partnerships in China of foreign and domestic companies and Chinese universities. An example is the recent creation of the Blockchain Food Safety Alliance by IBM, JD.com,29 Walmart, and the Tsinghua University National Engineering Laboratory for E-Commerce Technologies to use blockchain technology to develop food traceability from farm to chopsticks.30 Recall of unsafe food Closely related to the precautionary principle and traceability is the recall of unsafe food. FSL 2015 extensively covers the State’s establishment of a food recall system that involves active participation from the food producer and the distributor. It stipulates that the food producer should ‘immediately stop production’ and proceed to recall the food product, notify related producers, and record the recall and notices, distributors, and consumers when the food produced does not meet the food safety standards or appears likely to be harmful to human health. Similarly, a distributor should halt processing of food and take similar actions, and any food the distributor deems necessary for recall is to be recalled immediately. With the exception of food that failed to meet the standard for labelling, marks, or specifications, food that has been recalled must be prevented from re-entering the market—for example, by innocuous disposal or destruction. The penalties for refusing to recall or stop operation after being ordered to do so by the food and drug administration include revocation of the production license or business license.31 In drafting the Implementing Regulation, however, the provisions concerning recall proved to be very controversial. The First Draft provided for different grades of risk with regard to recalls.32 For example, food recalls could fall under Grade 1, Grade 2, or Grade 3. Grade 1 refers to food that has inflicted ‘serious harm to human health, or even death’. Grade 2 refers to food that has caused ‘general harm to human health’. Grade 3 refers to food the label or description of which fails to comply with food safety standards, but which otherwise does not cause harm to human health.33 The Second Revision of the Implementing Regulation retained the requirement that food recalls are to be made according to different grades of risk, but the detailed provisions concerning these grades appear to have been deleted.34 Such a grading system does not, however, go far enough: the adoption of uniform food safety standards and an improved tracking system are preconditions to a successful recall system.35 Alignment Alignment with international standards is closely associated with risk assessment; both call for the use of scientific expertise and refer to international best practices. To facilitate international trade, alignment, or convergence with international standards has long been a preoccupation for the Chinese government and for China’s trading partners.36 FSL 2015 aims to achieve increased alignment of Chinese food safety standards with international standards, both directly, by encouraging increased references to international standards when China makes national standards, and indirectly, by promoting greater emphasis on scientific risk assessment. It states that: The formulation of national food safety standards shall be based on the results of a food safety risk assessment, with full consideration for the results of the risk assessment of safety of Edible Agricultural Products and by reference to relevant international standards and the results of international food safety risk assessments; the draft national food safety standards shall be made available to the public to widely solicit opinions from food producers and distributors, consumers, and relevant departments.37 The legal language is stronger than in FSL 2009, but the basic ideas are not new.38 In addition, if interpreted according to usual international methods of legal interpretation, this provision does not create very precise legal obligations, thus leaving considerable discretion to administrative authorities for determining national policy. FSL 2015 states that the national food safety standards are to be reviewed by a National Food Safety Standard Review Committee consisting of experts from various industries and backgrounds. This may encourage convergence. FSL 2015 also promotes possible convergence of standards indirectly. The State import-export inspection authority is now required to collect risk warning information and other food safety information released by international organizations and overseas government agencies. Nevertheless, certain types of food that are novel or more sensitive to public opinion are to be governed exclusively by national food safety standards; they include dietary supplements, formula food for special medical purposes (FSMP) and formula food for infants, food additives, food-related products and new food raw material. Food safety standards, like all standards, are a double-edged sword. On the one hand, they regulate food safety and quality; on the other hand, they constitute a barrier for market entry. Though usually understood to refer only to access to the importing country’s market, market access as determined by standards inevitably includes the impact of standards on employment in the exporting country. This may seem surprising, but standards have a direct impact on access by workers to the exporting country’s labour market, because companies that cannot meet higher standards, if required, are likely to be driven out of business. The treatment of small workshops, which is discussed later, is a good example. So, too, is the Chinese distinction between higher standards for exported food than for food for domestic consumers; this puts at a disadvantage those companies that cannot meet the higher export standards, with unfortunate knock-on effects on domestic consumers. Alignment thus involves a careful balancing of several policies and interests; it does not necessarily mean convergence. Consequently, the extent to which FSL 2015 actually leads to increased convergence of Chinese standards with international standards will depend very much on political will, economic interests, and administrative cooperation, to ensure that the law is implemented. In addition, China is often considered to have too many, often conflicting, standards, including many that are out of date; the multiplicity of private standards make this complex picture even more confusing.39 A recent study concluded that many standards were not effectively enforced, there was much overlap between standards, and standards often were not respected and unable to prevent food fraud.40 Another recent research article distinguished between standards in general, food safety standards, and standards for pesticide residues.41 According to the WTO Trade Policy Review Body, by 2015 for general consumer goods ‘some 74.3% of mandatory standards and some 75.2% of voluntary standards were adoptions or an adaptation of international standards, compared to 69.0% and 73.7% at end-2013’.42 A 2016 State Council guideline set a target of 95 percent by 2020;43 this does not include food. The same research article quoted a World Bank study to the effect that as of 2006 China had about 3000 food safety standards, about 50 percent of which were based on international standards.44 For pesticide residues, it estimated that about 78 percent of maximum residue limits (MRLs) in China were aligned with Codex MRLs. However, the real problem was that China had, so far, adopted only a limited number of MRLs: only about 5,000 as of 2016 compared to 28,000 adopted by Codex. The article also concluded that ‘this was a question of gradual legal reform, a process which is conditioned heavily by resource constraints and competing priorities’.45 Imports Chinese legal arrangements for imports and exports are both concerned with market regulation—the former with domestic Chinese markets and the latter with access to foreign markets. As with any country’s import and export regimes, the common theme and the principal focus in both cases are on enhancement and protection of domestic interests. This section considers imports. The treatment of exports raises more complex policy issues and is discussed later. China’s domestic retail market for food as of the end of 2014 was growing by at 12 percent a year, fuelled by urbanization and rising disposable incomes.46 Despite the recent slowdown, consumer demand, changes in the one-child policy, and the expansion of retail and food service industries mean a steadily increasing demand for domestic and foreign food products.47 FSL 2015 clearly reflects these changes. It creates a more centralized system in that the state entry-exit inspection and quarantine administration oversees safety supervision and administration of both imports and exports. However, China does not have an equivalent of the EU Rapid Alert System for Food and Feed, even though such an explicitly networked system could be useful given China’s size, diversity, and fragmented institutional system. FSL 2015 imposes stricter rules on foreign exporters and producers, which now are required to ensure that their exports to China conform to FSL 2015, relevant regulations, and national Chinese food safety standards, and they are legally accountable for contents specified in labels and instruction manuals. Imported foods, food additives, and food-related products are required to comply with China’s national food safety standards. However, foods for which there are no Chinese standards but which meet foreign or international standards may be imported into China if the Ministry of Health decides to apply these standards temporarily and then formulate appropriate national standards; this exception in favour of specific imported products contrasts with Article 63 of FSL 2009, which required the importer to apply to the Ministry of Health for authorization to import. Recently, however, the NHFPC set up a detailed procedure for examining and inspecting imported food for which there is no comparable Chinese national food safety standard.48 A similar policy of more stringent, centralized controls on food imports into China informs other elements in FSL 2015. Exporters, including those located outside of China, and importers are both to be put on record at the state entry-exit inspection and quarantine administration. Such registration is subject to cancellation in the event of a major food safety accident for imported food. To ensure respect for these obligations, importers are required to establish a system for reviewing overseas exporters and producers. This requirement extends to food additives and food-related products entering China as well. Any unqualified imports are prohibited. In the event of food that does not comply with the standard or is likely to cause harm to human health, the importer should also recall the food. Seen from the foreign exporters’ perspective, however, FSL 2015 may appear to lag somewhat behind best international practice.49 Imported food with new raw material, new food additives, or new food-related products must undergo inspection in China. China does not have a system for accrediting foreign exporters, except for health foods—an increasingly lucrative market.50 However, FSL 2015 now permits (but does not require) the State entry-exit inspection and quarantine authority ‘to evaluate and review the food safety management systems and food safety situations of the countries (regions) that export food into the territory of China, and determine appropriate inspection and quarantine requirements based on the evaluation and review results’.51 Food is a sensitive commodity, with unknown risks and a strong cultural connotation. FSL 2015 aims to protect Chinese consumers from potentially unsafe imports, but its mandate for evaluating and reviewing foreign exporters’ systems is discretionary instead of being a more proactive and mandatory requirement. The most elaborate system of this type is the US Food Safety Modernization Act, which provides for third-party certification and a voluntary qualified importer programme and could serve as a model for future Chinese policy.52 Legal liability FSL 2015 provides a legal liability regime, essentially following the structure of FSL 2009. It deals separately with a long list of numerous distinct civil offenses, each with specific sanctions. The identification of many offences responds directly to China’s recent food safety scandals, such as melamine-laced baby formula, the use of gutter oil, the use of deceased pigs, and many others. In regulation of food safety, FSL 2015 is complemented by other legislation, administrative regulations, standards, and interpretation by the Supreme People’s Court and the Supreme People’s Procuratorate. Courts also play an important role—for example, there were almost 2,000 cases involving pesticides between 1997 and 2017, during which new Pesticide Regulations were adopted.53 This is likely to become even more significant in the future, especially with the use of the Guiding Cases system. The offenses in FSL 2015 included engaging in food production or trade activities without a food production or trade permit or engaging in the production of food additives without a food additive production permit, or providing premises for such acts.54 Another group includes: producing food with non-food raw materials, adding potentially hazardous substances, or producing food with recycled food as raw materials for producing food; producing or dealing with sub-standard food for infants of other sensitive groups; dealing in meat or other products where the animal died from disease, poisoning, or unknown causes, or meat that has not been quarantined or inspected or has failed quarantine or inspection; producing or dealing in food that is prohibited from production or trade; and producing or dealing in food to which medicine is added.55 A third, more serious set of offenses includes numerous acts such as: producing or dealing in food or food additives in which pesticide residues, biotoxins, heavy metals, and other hazardous substances exceed legally specified limits; producing food or additives with raw materials or additives whose shelf life has expired or which are spoiled by rancid oil or fat or otherwise contaminated or with a false production date or shelf life; producing infant formula by sub-packaging, or producing different brands of milk powder with the same formula.56 Analogous provisions of uniform national law govern other civil offences.57 Dealing with small workshops, including production or processing workshops and small food vendors, Article 127 provides that the punishment of their illegal acts is to be ‘governed by the specific administrative measures developed by each province, autonomous region, or municipality directly under the Central Government’.58 Further specific sanctions are provided for other separate offenses, such as failure to recall unsafe food, unlawful imports or exports, and failure to perform required inspections. For example, if an online, third party platform fails to register the legal name or to examine the permit of a food producer using the platform, the Food and Drug Administration (FDA) at or above the county level can order corrective action, confiscate illegal income, and impose a fine of not less than 50,000 RMB but not more than 200,000 RMB, or if there are ‘serious consequences’, order the provider to cease operation or have its permit revoked, and, if consumers are damaged, ‘to assume joint and several liability with the food trader’.59 If the offenses are sufficiently serious, many civil offenses regarding food are dealt with as criminal offenses under Chinese Criminal Law.60 They fall under Chapter III: Crimes of Undermining the Order of Socialist Market Economy, and more specifically, under Section 1: Crimes of Manufacturing and Selling Fake and Shoddy Goods. For example, Article 141 provides for imprisonment and fines for the production and sale of fake medicines that ‘are sufficiently able to serious endanger human health; sanctions depend on the seriousness of the offense and range up to life imprisonment or death penalty and confiscation of property.61 The sale of food not conforming to hygienic standards ‘which sufficiently gives rise to food poisoning accidents or other severe food-originated diseases’ is subject to sanctions including imprisonment, fines, or confiscation of property.62 The production or sale of food mixed with non-food materials is to be sanctioned by terms of imprisonment ranging from less than five years and not more than 10 years, together with a fine or, if the offense results in serious harm or death, by sanctions under Article 141.63 A similar range of sanctions is provided by the production or knowing sale of fake or ineffective pesticides, chemical fertilizers, or seeds.64 The concept of ‘serious’ in Article 143 on the production and sale of sub-standard food has been the subject of joint interpretation by the Supreme People’s Court and the Supreme People’s Procuratorate. The same interpretation also specifies the acts to be punished as crimes of ‘production and sale of poisonous and harmful food’ within the meaning of Article 144 of the Criminal Law.65 Some offenses are also dealt with as ‘other illegal business activities that serious disrupt the market order’ and are subject to imprisonment and heavy fines.66 The purpose of these measures is to crack down heavily on food-related offences. Much depends on how these measures are implemented. But feeling the stones? The stone of public confidence: infant formula Crossing the river by feeling the stones, even though it appears to be a sensible, gradualist strategy, may be risky and even dangerous, depending on the stones. In this part of the article, we examine some of the stones that confront potential food safety regulators in China. We begin with the stone of public confidence, using the aftermath of melamine infant formula crisis as an example. The 2008 melamine infant formula scandal poisoned more than 300,000 infants and led to six deaths. Among its numerous consequences was a disastrous decline of public confidence in national or local food safety regulation. It stimulated fundamental reforms of Chinese law and standards and resulted in FSL 2009.67 Since then, domestic food safety problems have continued, with the result that foreign companies and online sales now occupy an increasing share of the Chinese market. It is not surprising that FSL 2015 seeks to impose stricter controls on the production and sale of infant formula.68 This is a strongly symbolic set of measures by which the government also hopes to achieve specific results to protect the public. Detailed legal controls now govern virtually every part of the value chain. Producing enterprises are required to exercise quality control over the entire value chain, including ex-factory, batch-by-batch inspection.69 Infant formula must contain ‘nutritional components necessary for the growth of babies and infants’;70 previously, vitamin enrichment was not permitted in infant formula.71 Strict information requirements apply to baby and infant formula.72 The product formula (recipe) must be registered.73 Sub-assembly is prohibited, and the same enterprise is not permitted to use the same formula to produce milk powder for different brands.74 Applicants for registration or record filing concerning infant formula are legally responsible for the authenticity of the materials they submit.75 They are required to follow good manufacturing practice, establish a production quality management system, and conduct regular self-inspection and submit self-inspection reports to the county-level food and drug administration.76 FSL 2015 creates specific sanctions for the producing or processing of formula food and baby and infant milk powder without registration or without following technical requirements, for producing formula by sub-assembly or use of the same formula by the same enterprise to produce baby and infant milk powder of different brands, or for failing to submit required information on baby and infant formula.77 Infant formula was also given special priority by the Implementing Regulations. According to the first two drafts, the national food safety monitoring system was to pay special attention to food affecting the health of infants.78 The Second Revision states that the foods for infants are to be given priority ‘in establishing the food traceability systems’.79 The label placed on infant food was to have content that complies with the registered or recorded content.80 While the formula was to acquire a registration certificate from the food and drug administrative department of the State Council,81 the Second Revision added that the CFDA will revoke such registration certificate when the infant formula powder is produced without meeting the ‘registered technical requirements’.82 The producer of the formula formerly was to make sure that that the raw materials, food additives, formula, and the label were recorded prior to the products entering the market; this language no longer exists in the Second Revision.83 There were also specific details in early drafts on where baby formula is to be sold, but this was deleted in the latest revision.84 All three drafts state that ‘health foods, foods for special medical purposes (FSMP), infant formula foods and new food materials are not of local character and therefore lack local food safety standards’.85 These many changes of detail testify to the controversial nature of the subject. They also indicate how quickly China is trying to develop a suitable food safety regulatory system for infant formula. In China, food safety laws have grown out of food safety crises, as was the case in the USA following the publication of Upton Sinclair’s 1906 book The Jungle about the Chicago stockyards or in the EU after the outbreak of bovine spongiform encephalopathy (BSE), also known as mad cow disease. The stone of bureaucratic turf wars: edible agricultural products The fragmentation of regulatory authority has long been a Chinese hallmark in matters of food safety. However, to take one example, a major innovation of FSL 2015 was to bring edible agricultural products more fully under food safety law. At stake is the administrative fragmentation and adequate regulation of agrochemicals, or in governmental bureaucratic terms a ‘turf war’ between the then Ministry of Health (now National Health and Family Planning Commission) and the Ministry of Agriculture. Similar administrative fragmentation of responsibilities contributed to the melamine scandal. Edible agricultural products were previously governed mainly by the Law on Quality and Safety of Agricultural Products, except for standards development and communication of food safety information. Now, however, FSL 2015 brings edible agricultural products more fully within the administrative regulatory scope of the Ministry of Health (now NHFPC) rather than that of the Ministry of Agriculture. This change is most evident, perhaps, in stricter regulation of agricultural use of pesticides, which as the source of pesticide residues in food directly affects food safety. First, FSL 2015 adds ‘marketing of edible agricultural products’ to the matters within its scope. Second, it delimits more precisely the required scope of food safety standards, which now must cover, inter alia, ‘the quantitative limits of the pathogenic microorganisms, pesticide residues, veterinary drug residues, biological toxins, heavy metals and other polluting substances, as well as other substances harmful to human health that are contained in food, food additives and food-related products’.86 Third, certain provisions of FSL 2015 concerning agricultural inputs apply to edible agricultural products. For example, ‘[t]he State shall apply strict management system to use of pesticides, accelerate the elimination of hyper toxic, highly toxic and highly residual pesticides, push forward the research, development and application of substitutes and encourage the use of pesticides with high efficiency, low toxicity and low residual’.87 FSL 2015 prohibits the production and operation of ‘[f]ood, food additives and food-related products in which…pesticide residues…exceed the limits prescribed by food safety standards’.88 Hyper-toxic or highly toxic pesticides may not be used for ‘vegetables, fruits, teas, Chinese medicinal herbs and other crops specified by the State.’ FSL 2015 imposes more stringent obligations on farmers and local agricultural administrative departments. It also provides specific sanctions for use of hyper-toxic or highly toxic pesticides and for producing or trading food in which ‘pathogenic microorganisms, pesticide residues, veterinary drug residues, biological toxins, heavy metals and other polluting substances, as well as other substances harmful to human health exceed the limits prescribed by food safety standards’.89 However, a license is not required for sale of edible agricultural products, in contrast to general requirements for food production, food distribution and catering services. In February 2017, the State Council reformed substantially the national regulation of pesticides, including new marketing and labelling requirements that, if correctly implemented, are likely to improve food safety and quality. The stone of many, complex value chains: small workshops The path to providing safe food for ordinary domestic consumers, thus, is full of difficulties, obstacles, and risks. In addition to infant formula, there are other challenges that often pose particular challenges in China because of the scale, size, and complexity of Chinese society. One such challenge, manifested in the melamine scandal, is the problem of small workshops. Among the most problematic aspects of Chinese food safety law, both in the past and today, is the regulation of the numerous, different types of food value chains, which are characteristic of the scale and variety of agriculture and food processing and marketing in China. China is a large country with substantial local, regional, and urban-rural variations. As of 2009, there were more than 200 million farmers and 450,000 food processing enterprises; small farms with less than two hectares of land or workshops with fewer than 10 employees accounted for almost 80 percent of the food processing industry but less than 10 percent of the market; many enterprises had no safety standards or even production licenses.90 This agricultural and industrial structure confronts regulators with almost insurmountable challenges, which simply cannot be resolved in the short run without a major restructuring of the agricultural sector and the food industry and a substantial injection of domestic or foreign capital. So-called ‘small workshops’, including, but not limited to, street food, pose particular difficulties. In policy terms, the expression ‘small workshops’ refers generally to food producers, processors, food vendors, or restaurants with fewer than 10 employees.91 The State Council White Paper on Food Safety and Quality92 noted that, as of 2008, they numbered 353,000 and made up 78.8 percent of all enterprises but had a market share of only 9.3 percent, yet they accounted for the largest share of food safety incidents. Consequently, food safety regulation of such a large number of economically diverse, geographically dispersed enterprises to eliminate risks of bacterial contamination of food is a major challenge. Options range from uniform national regulation, through a national normative umbrella combined with decentralized regulation, to purely local regulation. Adopting a characteristic Chinese policy response when faced with great diversity of conditions, FSL 2015 opted for a national normative framework combined with decentralised regulation.93 It follows FSL 2009 in giving special, differentiated, and decentralized treatment to small workshops.94 China’s first food safety law, FSL 2009, recognized special treatment for small workshops. It provided that ‘[a] food producer or trader shall obtain the corresponding food production or trade permit according to the law, except for small food production or processing workshops or food vendors as otherwise prescribed in laws and regulations’.95 FSL 2015 imposes somewhat greater food safety obligations on small workshops. It requires small workshops to comply with the requirements of FSL 2015 that ‘are suitable for their respective scale and conditions of production and operation’ and to ‘ensure that the food under their respective production and operation is hygienic, non-toxic and harmless’.96 However, FSL 2015 does not contain any clear, national guidelines about the meaning of these requirements. Instead, national rules are essentially delegatory and procedural. Detailed rule making and implementation concerning small workshops is to be decentralized and flexible. Provinces, autonomous regions, and municipalities directly under the Central Government are required to formulate specific administrative measures concerning the production and processing workshops and food vendors.97 Local governments at or above the county level are required to ‘carry out comprehensive management’, ‘strengthen services and unified planning’, and support small workshops to improve and carry out business in specific places or during specific times.98 People engaged in the production and operation of ‘ready-to-eat food’ are required to have annual health checks and a health certificate for accepting employment.99 Provinces, autonomous regions, and municipalities directly under the Central Government have adopted, or should adopt, administrative measures to sanction illegal activities of small food producers, processors, or vendors.100 The Implementation Regulation does not address this problem satisfactorily. The First Revision provided that the State Council was to enact administration regulations ‘according to the level of economic and social development, production scale, technical conditions, food safety requirements and other factors’.101 However, the Second Revision states simply that ‘[w]here a food producer or operator commissions others to produce foods or food additives, the commissioned party shall obtain a food production permit or a food additive production permit’.102 The inevitable result of this conjunction of measures has been wide regional and local variations in the treatment of small workshops, including giving priority to local concerns, including employment and others, instead of to food safety. The diversity of regulation is borne out by recent empirical research based on content analysis of local legislation. This research also provides a range of useful suggestions.103 Yan Hai proposes the adoption of a unified legislative model, a unified mechanism of administrative supervision, and the improvement of self-regulation and public supervision.104 Zhang Sheng’s study of market access for small workshops in 14 provinces, municipalities, and autonomous regions before and after FSL 2009 shows the importance of licensing, registration and record-keeping, category management (positive or negative list of food products), and public participation in decision making.105 In our view, the essential elements are a national legislative and administrative framework that provides for a basic obligation to ensure safe food; the recognition of local variations and the normative power of local governments to take them into account; the importance of food safety education for small workshops; and the fact that public participation is crucial in such local food safety decisions. At every level of government it is essential to adopt an objective of consumer protection. The example of the COBRACANA cooperative in Brazil shows that changes in cost-accounting methodology, regulatory incentives and effective external auditors can help small-scale producers to cooperate and compete.106 The stone of market access and public demand: health food and special foods In 2015, the domestic Chinese market for health foods and nutritional supplements accounted for almost US $160 million (1 trillion RMB), with a projected annual growth rate of 20 percent, due partly to China’s aging population and increasing health awareness. Health food refers to food that claims to have a health care function or the purpose of which is to supplement nutrients such as vitamins and minerals, rather than to cure specific diseases.107 By July 2015, the CFDA had approved 15,802 health food products, including 15,063 domestic products and 739 imported products. So far, however, Chinese health food producers are relatively small in size, and large foreign companies occupy an increasing share of the market.108 This economic pattern forms the background for legislative innovations concerning health food and explains our detailed treatment of the subject. Health food is required to undergo risk assessment109 and is subject to robust supervision and administration.110 Health food must not only to obtain a food production license but also be registered or recorded.111 Both production and the food production quality management system are to comply with good manufacturing practices.112 China has issued multiple special food production good manufacturing practices as mandatory national standards. They include ‘Good Manufacturing Practices for Health Care Food’ (GB17405-1998). Domestic producers are required to establish a production quality management system, conduct regular self-inspections, and submit the inspection reports to the county-level government.113 China, thus, conjoins hard law and soft law in the regulation of health food. To facilitate the importation and sale of health foods, FSL 2015 adopts a notification system for certain imports. Foreign trade associations severely criticized the previous system, which required costly and lengthy re-testing.114 Health care food that uses raw materials other than those on the list of raw materials available for health food and health care food and that are imported for the first time, still must be registered with CFDA.115 For certain products, however, China now accepts the marketing approval by the authorities of the exporting countries.116 This requirement also extends to the period after the health care food has been imported to China. However, health food that is later forbidden in the exporter’s market will no longer be allowed for import and will be recalled in China.117 Health care food containing vitamin supplements, mineral substances, and other nutrients is subject only to record-filing (notification) with the CFDA; other health care food is subject to record-filing with provincial or other local authorities.118 This distinction stems from the concern that different types of health food may involve different degrees of risk.119 For example, health food containing traditional Chinese herbal medicine may have risks inherent to its components, while health food containing vitamins, minerals, and other nutrients can adequately be evaluated under national standards and other general requirements.120 One benefit of having a different record-filing procedure is minimized cost and increased efficiency.121 Applicants for registration or record filing are responsible for the authenticity of the materials which they submit.122 FSL 2015 provides specific sanctions for the production and operation of health care food without registration or without following technical requirements.123 The CFDA is to establish specific administrative measures for health care products.124 Many health food products produced in China and in other countries, as well as traditional Chinese medicine,125 combine the attributes of food and medicine. In the interest of consumer protection, however, FSL 2015 aims to draw a clearer distinction between food products and medicinal products. For example, the State is to conduct robust supervision and administration of formula food for special medicine purposes.126 Claims for health-care functions cannot be made arbitrarily127 and must have a scientific basis, as was also required by FSL 2009.128 While there are no detailed requirements on establishing a scientific basis under FSL 2015, this has been understood to require sufficient research data and scientific consensus.129 The list of raw materials130 and the list of health care functions that health care food is allowed to claim are to be formulated, adjusted, and promulgated by the CFDA in conjunction with the Ministry of Health and the State Administration of Traditional Chinese Medicine.131 The most fundamental requirement of health food is safety in the sense of ensuring that consumption does not result in toxicity or side effects.132 The list of raw materials available for health care foods must contain specified information, and raw materials used for production of health care food cannot be used for producing other kinds of food.133 The raw materials must also meet national standards and safety requirements.134 Further, to guarantee the safety of the health food, documents such as the research report, materials, and samples related to evaluating the safety and function of the food, with any other relevant documents, must be submitted.135 Likewise, materials that demonstrate the safety and the functions of health food must be submitted for record filing.136 Health food containing raw materials included in the raw materials list that provides information on the dosage and efficacy does not require registration but only needs to be recorded. Labels and instruction manuals for health care food are not permitted to refer to disease prevention or medical treatment and are required to state: ‘this product is not a substitute for medicine’.137 Health food labels and directions are to be true, accurate, and consistent with the contents specified in the registration or record filing. The functions and the ingredients contained in the health food must also be consistent with the label and directions.138 Advertisements must state that ‘this product is not a substitute for medicine’ and must be examined and approved by the provincial or other local FDA where the production enterprise is located.139 The amended Advertising Law further stipulates that advertisements for dietary supplements shall not be published in a ‘disguised form such as introducing health or health care knowledge’.140 In the case of such publication, disciplinary action is to be taken against any supervising executive and persons who are directly liable.141 The Advertising Law prohibits the following in health care food advertisements: assertions or assurances of efficacy and safety; functions related to disease prevention and treatment; claims or suggestions of the necessity of health care food for health protection; comparison to drugs or other health care food products; the use of advertising spokesperson for recommendation and proof; and other contents that are prohibited by laws and administrative regulations.142 Applicants for registration or record keeping of such products are legally responsible for the authenticity of the material they submit.143 An applicant must also ensure that all relevant information for the application is made known, at the risk of having its application refused or administrative license not granted. The Administrative Law states that if the application for the administrative license directly concerns public security, human health, and safety of life and property, the applicant is not allowed to re-apply for the license for another year.144 Applicants are also required to establish a production quality management system and to conduct, as well as report, self-inspections.145 The local people’s government at the county level or above is required to specifically focus on developing the annual plan of supervision on health food production, labelling, and advertising.146 Foods for special medical purposes are also required to be registered with the CFDA, and product receipts, production processes, labels, and instructions and materials proving the safety, nutrition, and clinical effects of the food are to be provided.147 Advertisements of such food are subject to the Advertising Law of the People’s Republic of China and related administrative regulations.148 This may result in advertisements for foods for special medical purposes being ‘subject to same approval requirements as non-prescription drug advertisements’.149 Several aspects of the regulation of health foods and special foods proved controversial and were subject to changes in different drafts of the Implementing Regulation. First, sanctions for failure to keep records vary according to the value of the health food and the number of people affected by food poisoning or illness. According to the First Draft, any health food production enterprise that failed to file a record at the food and drug administrative department or failed to organize production according to the product formula, production technology, and other technical requirements, would be sanctioned under the criteria of ‘severe violation’ if the products were valued over 30,000 RMB.150 This financial value was later deleted in the First Revision, which further added that such imposition of punishment would only apply to those food producers related to the occurrence of food safety accident involving more than 10 persons.151 The Second Revision restores the financial threshold and combines it with the number of people affected by the incident. It provides that, when the value of health food exceeds 30,000 yuan and when more than 10 people are affected by food poisoning or illness, the circumstances will be considered as ‘serious’ under Article 124 of the Food Safety Law, leading to the sanction of revocation of the production permit.152 A second point concerns the available market platform for the sale of formula foods for special medical purposes. Both the first and the second drafts of the Implementation Regulation made it clear that, among formula food for special medical purposes, ‘special whole-nutrient formula’ was to be sold in medical institutions or pharmaceutical retail enterprises, and not to be sold online. This restriction was not made clear in the First Draft.153 In the end, however, the Second Revision stipulates that ‘special whole-nutrient formula foods which is categorized as foods for special medical purposes are to be sold in hospitals or pharmaceutical retail enterprises’. Online sales are not allowed.154 A third point concerns the registration certificate. The First Revision explicitly stipulated that the formula for health food, formula food for special medical purposes, and formula milk powder for infants and young children subject to registration administration to be produced, sold, or imported shall obtain a registration certificate issued by the food and drug administrative department under the State Council.155 This was a minor revision of the First Draft, which had not previously included the phrase ‘produced, sold or imported’.156 The Second Revision states that where a registration certificate is revoked on grounds of serious violation, the producer ‘cannot apply for registration of health foods, FSMP, or infant formula powder recipe in five years after the decision for punishment is made’.157 Fourth, on traditional Chinese medicine, the First Revision required a substance traditionally considered as both food and Chinese medicine to: (i) have a history of consumption in China, without acute, sub-acute, or chronic danger nor potential to be dangerous to human health; (ii) have a record of human consumption in ancient books without a record of toxicity; (iii) be listed among the National Drug Standards; (iv) maintain sustainability of related species resources, without adversely affecting wild medicinal herb resources and the ecological environment, and not fall within the wild animals and plants listed in the catalogue of wild animals under national priority protection and wild plants under national priority protection; and (v) comply with relevant laws and regulations.158 The health administrative department under the State Council was to regularly collect and publish a catalogue of new raw materials, food additives, new varieties for food-related products, and executive national food safety standards. The department was also to conduct follow-up evaluations for safety.159 The latest revision states that catalogues published by the NHFPC are to contain new food ingredients, new food additives, and relevant food safety standards. With the CFDA, catalogues of food and Chinese medicine will be updated.160 A final point concerns health claims. The First Revision, unlike the First Draft, no longer explicitly mentioned that the name of the health food could not indicate or imply the function of that health food. Rather, any statements concerning its function were to conform to the health function catalogue, registration, or record filing.161 According to the latest revision, it is only written that the ‘content of the health food conform with the labels and the instructions used in registration and record filing’.162 The stone of business interests and public concerns: genetically modified food Another challenge is to reconcile business interests, whether domestic or foreign, and public concerns about genetically modified food. In China, as elsewhere, the sale of genetically modified organism (GMO) food is a controversial issue.163 It is well known that the USA and the EU have diametrically opposed policies.164 China is a leading producer of GMO food crops165 and has issued licenses for imports of GMO crops mainly as raw materials, but it has approved few domestically produced GMO food crops for domestic marketing.166 GMO crops must be labelled as such in order to be marketed.167 Previously, this requirement was contained in administrative regulations,168 but now for the first time it appears in the FSL. Any application for food production containing new raw materials, new food additives, or food-related products must submit coordinating assessment materials to the health administration under the State Council. The health administration then will organize a review of the submitted materials within sixty days and grant a license for those that comply with the requirements. Any rejections made on the application will include a written explanation for the reasons for refusal of a license. In regard to marketing of GMO agricultural and food products, FSL 2015 is supplemented by several administrative regulations. The Measures for the Safety Evaluation Administration of Agricultural GMOs deal with research, testing, production, processing, marketing, and imports and exports of agricultural GMO products.169 Separate Measures deal with examination and approval of processing agricultural GMOs.170 The Administrative Measures for Safety Control of Importing Agricultural GMO products concerns imports of GMO Products.171 The Administrative Measures on the Entry and Exit Agricultural GMO Products Inspection and Quarantine concern inspections of imported and exported GMO products by the AQSIQ.172 The Administrative Measures for Labelling Agricultural Genetically Modified Organisms Marks provides detailed information on labelling standards.173 FSL 2015 further contains specific rules concerning GMO food174—notably rules concerning pre-packed food and bulk food. Production and business operations for GMO food must be ‘prominently indicated on labels for consumer information.175 FSL 2015 establishes specific sanctions for failure to follow these rules.176 Depending on the gravity of violation, the sanctions vary from having food and tools used for production or distribution confiscated, or being subject to a fine, to being prohibited from further production or having the license revoked, depending on the gravity of the violation.177 Despite the recent legislative reform, however, it appears that, compared to other countries, the definitions, standards, thresholds, indications, and traceability of GMO food in China are not yet clearly specified.178 The stone of new markets: online sales of food Online commerce is worldwide. China is the world’s largest e-commerce market, with total retail sales in 2013 totalling US $300 million. Exports from China account for more than 90 percent, but imports of food and beverages into China are increasing especially rapidly. Supermarket chains such as Metro and many other platforms such as Taobao and JD.com offer online food shopping services.179 Previously, according to government interpretations of customs rules, cross-border food purchases benefited from a favourable import tax rate, and cross-border purchases were required only to meet the standards of the exporting country; Chinese labelling, including nutritional labelling, was not required.180 Now, however, foods imported into China under the bonded Internet shopping model (but not including products delivered into China via international courier) are required to meet Chinese standards. For example, health foods, genetically modified foods, foods for which there is no Chinese national food safety standard, and new food raw material must be registered and pass Chinese safety assessment. Infant formula imported under bonded Internet must be labelled in Chinese, with the label directly printed on the sales package prior to entry.181 These requirements bring e-commerce food imports into line with FSL 2015. Imported and exported foods through cross-border electronic commerce are required to abide by FSL 2015 and the revised Implementing Regulation. In practice, these protections were watered down during the drafting of the Implementing Regulation. Both the First Draft and the Draft Revision provided that the food and drug administrative department would determine the purchaser of samples, payment account, registered account, delivery address, contact information, save the purchasing bill, and record the name, type, and quantity of samples drawn for sampling inspection.182 Under the First Draft, the sample purchaser, the sampling person of the inspection institution, and the law enforcement officers of the food and drug administrative department were to unpack and check the pack together, have the sample and reserved sample sealed, and give notice to the producer or operator of foods being traded online. There was no requirement of taking photos or recording a video of any of the process.183 However, according to the First Revision, the sampling person would check the mailed pack and other items, have the sample and the reserved sample sealed, and record the unpacking process by taking photos and video.184 Further changes were introduced in the Second Revision, which states that ‘qualified institutions’ are now to conduct sampling tests for foods in accordance with the regulations.185 The Second Revision, thus, provides fewer specific obligations than its immediate predecessors. A major innovation of FSL 2015 is the requirement that online food transaction platforms must register the real names of food producers using their platform.186 In addition, there are strict rules for consumer protection and sanctions for online platforms that fail to use real-name registration, or to examine the licenses of food producers if such licenses are required, or to meet reporting and other obligations. In particular, if the platform provider finds that there is a serious breach in meeting the registration, management, or license requirements, the provider is required to immediately stop providing the services to the food distributors.187 When the online platform fails to provide the name, address, and contact information of the distributor, the provider will be liable. It may be ordered to make corrections, have gains confiscated, and be fined between 50,000 and 200,000 RMB; if the consequences are serious, it may be required to suspend business operations or have its license revoked. If consumer rights and interests are infringed, it is to be jointly and severally liable with the food business operators.188 There is considerable doctrinal disagreement concerning the potential availability of punitive damages.189 However, we hope that the major online food providers will support the successful application of these provisions, in their own interests and in those of ordinary consumers. Then they can play a major role in improving the quality of food sold online, combatting food fraud, and educating the public and producers of food for online sale. A consumer may demand compensation from either the food producer or the food business operator using the platform. If the platform provider is not able to provide the real name and contact details of the business operator, the platform is to be liable for paying compensation but has the right to seek recovery from the business operator or the food producer. If the online platform makes more favourable undertakings to consumers, it is required to fulfil them.190 Following indemnification, the online platform may then seek to recover its loss from either the producer or the distributor. Consumers may demand compensation from either the online platform or the food producer. The revised Implementation Regulation provides detailed requirements for online food exchange platforms. These reforms are intended to protect the rapidly increasing number of consumers who purchase food online. However, earlier drafts of the Implementing Regulations provided for stronger duties on the platform provider. In the case of purchasing through a third-party online trading platform, the First Revision compared to the First Draft placed a lesser burden on the platform provider. It no longer stipulated that the provider may assist in giving notice to the producer and trader of foods being traded online. Further, while under the First Draft, the food and drug administrative department that organizes and implements supervision and sampling inspection of food traded online was to notify the received inspection results in a timely manner to the sampled food producers and traders, the First Revision required only those inspection results shown as unqualified to be made known to the sampled food producers and traders. The Second Revision contains no such language. However, where an online food trading third-party platform gets involved in numerous cases where there are serious consequences and illegal operation of online food operators, the platform provider’s representative may be asked to attend a meeting to determine their accountability.191 Avoiding low branches The branch of institutions and implementation While crossing the river by feeling the stones, Chinese food safety regulators also confront horizontal, cross-cutting obstacles, which we can envisage as branches that hang low over the path and that might delay, impede, or prevent the achievement of the objectives of FSL 2015. Legislative reform does not serve society unless the law is implemented. Implementation of law depends, in turn, on institutions, infrastructure, participation, communication, and public education. Institutional fragmentation and problems of implementation of law have been continuing problems in Chinese food safety law. FSL 2015 improves considerably on FSL 2009 in this respect. Basic features of earlier institutional arrangements were severe fragmentation, lack of clearly defined responsibilities, failure of cooperation among institutions, and hence, blockage and inertia.192 Concerning administrative reform, FSL 2015 provides that government officials are to be assessed partly on their contribution to food safety. It renders more specific the obligation set out in FSL 2009193 by requiring governments at or above the county level to implement an accountability system for food safety supervision and administration, including approval and assessment of government officials.194 It also assigns regulatory duties to the local FDA instead of, as before, to several administrative departments. A National Food Safety Inspector System is to be established, and the FDA departments in provincial and higher governments are to have full-time food safety inspectors.195 FSL 2009 required FDAs at the county level or above to prepare an annual supervision and administrative plan,196 but FSL 2015 sets much more specific obligations concerning priorities, methods and frequency of supervision, and management according to risk assessment and the specific situation,197 including listed priorities.198 Procedures for responses to food safety accident emergencies are more precise, graded, better organized, and with clearer responsibilities,199 with provision for enterprise accident handling programmes.200 Medical institutions are required to report cases of actual or suspected foodborne diseases to the local MOH department.201 The Second Revision explicitly states that the Food Safety Commission is now ‘responsible’ for carrying out various efforts such as analysing situations and studying and guiding national efforts towards food safety.202 This was a clear strengthening of the language from the previous version, which merely stated that the Food Safety Commission ‘shall study, deploy and uniformly guide the national food safety efforts’.203 Inevitably, however, such coordinating bodies are weak. John K. Yasuda rightly summarizes this strategy as serving ‘only as an organizational palliative laid on top of a poorly integrated regulatory system’.204 The FSL 2015 reforms are not sufficient, however. Even since before China’s first Food Safety Law 2009, the institutional structure for making and implementing food safety laws and regulations has been extremely fragmented. In addition, relations between central and provincial governments were very poorly defined. A recent study argued that the principal problem of Chinese food safety regulation lay in the ‘politics of scale’: which level of government should regulate, how tensions between different levels of government should be addressed, and how should the impact of policies of one level on other levels be managed.205 Comparisons with other systems of multilevel governance of food safety may be instructive, not only with the EU and the USA, where debates about the best institutional arrangements have long been common, but, in particular, with Brazil, because China and Brazil have many of the same concerns regarding coordination, supervision, and implementation.206 Recent institutional reforms of government structure in China aim for greater centralization and increased Communist Party of China (CPC) control of government. Following the nineteenth National Congress of the CPC on 18–24 October 2017 and the third Plenary Session of the nineteenth CPC Central Committee, the National People’s Congress, on 17 March 2018, approved the State Council Institutional Reform Plan of 2018,207 and on 21 March 2018, the CPC released its Plan to Deepen Reform of Party and State Institutions.208 The functions of the State Administration for Industry and Commerce, the AQSIQ, and the State Food and Drug Administration have been incorporated into the new State Administration for Market Regulation (SAMR) (国家市场监督管理总局), directly under the State Council, except for the customs functions of AQSIQ, which went to the General Administration of Customs. Also incorporated into the State Administration for Market Regulation are the price supervision and inspection and enforcement of anti-monopoly law functions of the National Development and Reform Commission, anti-monopoly functions of the Ministry of Commerce, and the responsibilities of the State Council’s anti-monopoly committee office.209 The functions of the MOA were assigned to the Ministry of Agriculture and Rural Affairs and four other ministries and the State Forestry and Grassland Administration. The functions of the NHFPC were assigned to the National Health Commission and the State Medical Security Administration.210 It is too early to evaluate these reforms, except to say that they are designed to strengthen the role of the CPC, to give more prominence to the market, and to improve the efficiency of governmental administration. On first inspection, however, ‘food safety’ as a clearly expressed priority and an institutional label would seem to be given less prominence than before, despite the recognized public importance of such symbolic politics. In any event, even assuming that current law continues to apply, some confusion and delays are inevitable. In fact, it is too early to speculate about how the new institutional structure will deal with food safety. Concerning implementation, FSL 2015 establishes general procedural principles for investigation of food safety accidents211 and determining liabilities,212 enables investigating authorities to obtain information and require relevant materials and samples,213 and creates a right to obtain information.214 The different drafts of the Implementing Regulations strengthened food safety regulatory work. The First Revision stipulated that the most serious food safety violations would be investigated by the food and drug administration and relevant ministries as directed by the State Council. Less serious offences would be handled by the people’s government and the relevant department of the provision, city, or county.215 This distinction was eliminated in the Second Revision.216 To remedy weaknesses in implementation of law, health departments and others at the provincial level or above are required to conduct follow-up assessments of the implementation of national and local standards and to organize timely revision if necessary.217 FDAs at the provincial level or above are required to collect information and summarize problems of implementation and notify MOH departments in a timely manner.218 Food producers and businesses are required to report problems discovered in the implementation of standards.219 The FDA at the county level or above may arrange regulatory talks with a legal representative of a producer or business operator that fails to take timely measures to eliminate potential food safety hazards in production or operation; and information on the talks and rectification is to be to be included in the producer’s or operator’s food safety credit file.220 Almost all of these changes depend in practice on improvements in inter-institutional communication and in cooperation among different levels of government. No complex governmental system is immune from these problems. As China confronts them, it is useful to consider the US or EU examples. For instance, the EU is composed of sovereign states; each authority has specific limited powers and each operates in different economic, social, and cultural contexts. EU food safety institutional arrangements are based on four sub-networks that, together, make up an entire network with frequent information exchanges. They deal with risk assessment (European Food Safety Authority), risk management (Rapid Alert System for Food and Feed), supervision and inspection (Food and Veterinary Office (FVO)), and training (Better Training for Safer Food). Supervision and inspection is the sole responsibility of the FVO.221 All are under the authority of the European Commission; EU agencies do not have independent decision-making power. EU law sets up a harmonized set of general rules for the organization of official controls on Member States and food business operators at all stages of production, processing, and distribution. These are supervised by the FVO. Enforcement measures are mainly national measures, but the EU can take safeguard or suspensory measures concerning imports. The network organization brings Member States together under EU supervision in monitoring and enforcing EU food law. We suggest that serious attention be given in China to using the network model to improve food safety governance. FSL 2015 creates new offences, with sanctions, for refusal to accept or obstruction of supervision and inspection, accident investigation and handling, risk monitoring, or risk assessment.222 It creates new sanctions for governmental or administrative shortcomings, including sanctions for failing to publish food safety information in accordance with relevant provisions223 or failure to fulfil statutory duties224 or causing loss to food producers and businesses by illegally failing to carry out inspections, compulsory measures, or ‘other law enforcement measures during food safety supervision and administration’.225 New sanctions apply to specific agencies. A member of a food testing agency who is sentenced to criminal punishments due to food safety illegalities or is expelled due to issuance of a false testing report causing major food safety accident ‘shall not engage in food testing work for life’.226 If a certification agency issues false certification conclusions, the principal directly in charge and directly responsible certification personnel are to be revoked of their practicing qualifications.227 If legitimate rights and interests of consumers are damaged, the agency is to bear joint and several liability with the producer or business operator.228 The branch of communication and participation A basic idea of FSL 2015 is ‘social governance’.229 Instead of merely encouraging social and community groups as in FSL 2009, FSL 2015 directly requires governments at all levels to strengthen food safety publicity, education, and knowledge, and to encourage social groups and grass-roots organizations to popularize food safety laws and standards, advocate for a healthy diet, and enhance consumer awareness and self-protection capability.230 FDA and other administrative departments at the county level or above are required to organize food producers and businesses, food testing agencies, certification agencies, industry associations, consumer associations, and news media ‘to exchange information on food safety risk assessment and the information on food safety supervision and administration on a scientific, objective, timely and open manner’.231 In formulating food standards, the government is to publish drafts for public comment and ‘extensively listen to the opinions of food producers and business operators (traders), consumers and relevant departments’.232 The Implementing Regulations drafts strengthen food safety social governance. They indicate specified requirements of food safety social governance, promote the roles of the third party and industry association in food safety supervision, develop fast testing methods, and regulate producers’ and traders’ self-checking. They also create the judicial expertise system for food safety management. The precautionary principle, thus, can be widely conceived to go beyond relations between science and government. It potentially involves the participation of a wide variety of stakeholders to ensure food safety.233 To enlist public support in monitoring and enforcing food safety law, local FDAs, AQSIQs, and other relevant departments are required to publish email addresses or telephone numbers for inquiries, complaints, and tip-offs.234 Information on whistle-blowers is to be kept confidential, and an employer is not permitted to retaliate.235 Whistle-blowers may also signal violations of law and regulations by food safety law enforcement personnel.236 In addition, following the principles of ‘scientific, objective, timely and open’, food producers, distributors, inspection institutions, certification organizations, food industry associations, consumer groups, and news media are ‘to exchange food safety risk assessment information and food safety regulatory information’.237 This ambitious, laudable, and very idealistic statement of broad social governance is unlikely, however, to be realized for many years—if ever—given the consumers’ current lack of trust in food safety governance, restrictions on the formation of consumer and other organizations, and current controls on the media. Its achievement requires massive investment in food safety education. For comparison, we note that Brazil has used public–private partnership agreements (Agreements and Terms of Commitment) to try to improve food quality—for example, by reducing salt and sugar consumption and thus reducing obesity—but these efforts have been seriously criticized for ignoring the role of public participation and public education.238 FSL 2015 concerns not only communication from public to government but also from government to the public. The State is to establish a unified food safety information platform239 to accompany a unified food safety information release system.240 The MOH is now to publish the results of food safety risk assessments.241 National, local, and enterprise standards are to be published on government websites to be downloaded free by the public.242 However, this is accompanied by stricter controls of media reporting of food safety incidents. The media is expected to play a role in supervising violations, but release without authorization of food safety information is prohibited.243 FSL 2015 contains clearer provisions about the release of information244 and provides that ‘[n]o entity and individual may fabricate and spread false food information’.245 As applied to the media, FSL 2015 states that ‘[w]here a media fabricates or spreads false food safety information, relevant competent department shall impose punishment thereon and impose disciplinary sanctions on its principal directly in charge and other responsible persons in accordance with the law.’ If the media act damages legitimate rights and interests, the media concerned is to bear civil liability, for example ‘eliminating the ill effects, rehabilitating reputation, compensating for loss and extending an apology and other appropriate legal liability in accordance with the law’.246 In July 2017, the State Council Food Safety Department and other departments issued a Notification on Strengthening Prevention, Control and Management Work on Food Safety Rumours.247 Aiming both to improve and to control media reporting of food safety incidents, the Notification sets out the following principles: ‘pro-active disclosure of government information’, ‘strengthening dynamic monitoring’, ‘promptly organizing refutation of rumours’, ‘put in place enterprise responsibility for media resisting rumours’, ‘actively and steadily carry out supervision of public opinion’, ‘strengthen the release and management of food safety information’, ‘strictly punish the creators of rumours’, and ‘establish mechanisms for coordinating between departments’. These principles are consistent with the governmental priority on social stability,248 but they are likely to be more effective in controlling the media and ‘guiding public opinion’ than in communicating real food safety risks to consumers. Communication of food risks to the public is a serious problem, and consumers’ knowledge of food safety remains very low.249 Consequently, major reforms of training for producers and traders and a significant improvement of public food safety education are among the most important determinants of safe food practices for the future. The branch of safe food for ordinary consumers A major, continuing problem concerns the provision of safe food to ordinary domestic consumers, whose interests are in principle among the main concerns of the new legislation. FSL 2015, despite its complexity, does not establish a right to safe food or a clear obligation on producers and traders to provide safe food for ordinary consumers. Here we exclude organic food, green food, or other special food, including so-called ‘slow food’ or ‘community supported agriculture.250 The existence of special food production and supply chains would appear to work against this objective; an example is the priority given to production of food for export. In regard to exports, China, unlike most major trading countries, has a special regime for exports of food. FSL 2015 provides expressly that ‘[e]nterprises producing food for export shall ensure that their exported food complies with the standards of the imported country (region) or the requirements of the contract concerned’; the last leg of the article enables Chinese export companies to use higher contractually agreed foreign private standards instead of foreign public standards or international standards.251 Exports are done by selected licensed, elite firms under strict government control by the AQSIQ and are subject to sanction by being put on a black list.252 Known as a ‘one pattern + 10 system’, this regime seeks to ensure that the selected firms can meet higher foreign standards, whether public or private. This represents a deliberate governmental policy choice to increase food exports and give priority to producers for the export market. For a country with scarce resources that wishes to play a significant role in the international food trade, choosing to favour exporters and foreign consumers or domestic producers and domestic producers may be a viable option. It is a ‘two-level game’, which has both international and domestic implications. It favours foreign consumers over domestic consumers, but it also favours domestic producers of export crops over domestic producers of domestically sold crops. In other words, it involves a choice of which domestic producers should be favoured. In the case of China, this is a policy choice to favour larger and medium-sized export-oriented, dragonhead enterprises over mainly smaller producers for the domestic market. In our view, it potentially offers a model for many developing countries, and such reverse discrimination is unlikely to raise legal problems under WTO law. Brazil provides a useful comparator, because the Brazilian experience was similar. Governmental policy initially gave priority to middle and upper class domestic consumers and to international markets and then turned to the domestic market.253 This is a controversial policy decision, however, and in China it has been criticized from different perspectives. From a technical perspective, it is criticized on several grounds: first, that it is not always effective, because of extensive government control or rigid export procedures;254 second, that it actually results in lower standards, because of weak management and lack of thorough supervision of producers;255 or, third, that it leads to substantial variations in the level of standards in different parts of the country, depending on local government capacity or policies.256 From a sociological perspective, it is criticized for being unfair to domestic consumers; standards for exported food are higher than those for food sold on the domestic market.257 It is possible that the production of high quality products for export may spill over to the domestic market in the long run, either because some firms are permitted to produce for both markets or because of the incentive effect of model producers. In China this would seem to depend significantly on government policy. Such an export policy provides transparency regarding food quality to export food chains and foreign consumers, but it does not meet the long-term needs of domestic consumers.258 In the context of the Greater Bay Area, including Guangdong Province, Hong Kong Special Administration Region and Macau Special Administrative Region, it also produces a result that perhaps is necessary in the short run but which, nevertheless, to many domestic Chinese consumers, may appear to be anomalous. The policy of favouring export production by selected companies means that exports by mainland China companies of food to neighbouring Hong Kong and Macau meet higher food safety standards than those that apply in mainland China.259 Under the ‘One Country, Two Systems’ arrangement, Hong Kong and Macau are Special Administrative Regions of China. Each is a member of the WTO separately from the People’s Republic of China,260 and each is in charge of its own foreign trade. This includes trade in food; each has its own food safety administrative authorities.261 Consequently, nearby mainland China residents frequently go to Hong Kong or Macau for shopping—for example, for infant milk powder or other food—to take advantage of higher food safety standards. It is not clear to us whether this consequence was intended or unintended by government policy makers. However, such differences in standards are likely to be put under increasing pressure by current plans for further integration of the Greater Bay Area, as well as by the likely future development of a consumer movement. FSL 2015 dramatically expands the role of consumers, though in many respects it simply amplifies with specific reference to food safety the basic principles in the long-established Law on Protection of Consumer Rights and Interests.262 In the longer term it could work against this discriminatory export policy. The FDA and other relevant departments at the county level or above are required to organize consumer associations to exchange information on food safety risk assessment, supervision, and administration; the main emphasis, however, seems to be on information exchange rather than on supporting consumer groups.263 In formulating food safety standards, the MOH and the CFDA should ‘listen to the opinions’ of consumers and consumer associations.264 Consumer associations are represented on the national food safety standards evaluation committee.265 However, further steps need to be taken to ensure public participation, greater information disclosure, and an expanded role of consumers in food safety decisions.266 With this policy-limited range, the theory of consumer choice is enshrined in more provisions about food labelling. FSL 2015, unlike FSL 2009, contains specific provisions on labelling:267 for example, concerning pre-packed food,268 including the nutritional content of food specifically for babies, infants, and other specific groups,269 and bulk food.270 The major innovations concern labelling requirements for GMO food271 and particularly for internet sales of food.272 Information provided to consumers is also strengthened by specific provisions on false advertising concerning food;273 infringement is to be sanctioned according to the Advertising Law.274 In addition, compared to previous legislation,275 FSL 2015 defines more specifically the right of consumers to compensation for damage due to food that fails to meet food safety standards.276 A customer can seek a compensation of either 10 times the purchase price or three times the loss added on to the compensation of the original loss.277 Such punitive damages have been criticized in legal scholarship,278 but our view is that they may play an important role in public food safety education. We agree with Zhang Yujun that the liability of traders may be based on breach of contract rather than tort, hence does not require damages; that policy considerations should be taken into account; and that if a trader actually knew or should have known that it was dealing with products that did not meet food safety standards, the trader should be considered as ‘knowingly’ dealing in such products within the meaning of Article 148 of FSL 2015.279 However, it is noteworthy that such compensation is not applicable when labels or instructions of the food do not affect the safety of the product or mislead consumers. One explanation for this was the increase in the number of ‘professional consumers’ in China.280 FSL 2015 encourages food production and operation enterprises to participate in food safety liability insurance. Regrettably, however, this is a step backward compared to an earlier draft of the legislation, which would have established a mandatory food safety liability State insurance system, in which all food producers and traders would have been required to participate.281 One step back may, however, mean two steps forward later, but this remains to be seen in light of resource constraints, the complexity of food value chains, and conflicts of interests between consumers, producers, and traders. Another important factor that detracts from the safety of food for ordinary consumers is the very high level of environmental pollution. It is not surprising that recent legislation seeks to combat water and soil pollution. In addition to the developments made in the revised FSL 2015 and the Implementation Regulations, China has recently revised its Water Pollution and Prevention and Control Law. It is to become effective as of 1 January 2018. The law aims to protect and maintain safety of drinkable water, which is also closely related to the safety of food. There are eight Chapters in the revised law, which covers a broad range of issues including management of industrial water, urban water, water from vessels, and drinking water sources. In particular, the revised law covers a classification system of drinking water source reserves282 and prohibits various activities around water source reserves.283 Construction projects are banned from being established in a ‘quasi drinking water source reserve’ that seriously affects the quality of the water.284 Suppliers are also held responsible for any water supplied through its facility and required to conform to relevant national standards.285 In 2014 the National Soil Pollution Investigation Report stated that almost 20 percent of all arable land in China was heavily polluted.286 The draft of the People’s Republic of China Law on Preventing and Controlling Soil Pollution signals the country’s intention to tackle the problem of soil pollution. It is directly related to ensuring food safety for consumers because safe food can hardly be grown in heavily polluted soil or water.287 The draft contains 94 Articles and covers critical issues including, but not limited to, standards, investigations, and monitoring of soil pollution; prevention of pollution and protection of soil; related risk control; and restoration and supervision and inspection of soil pollution.288 It is proposed that agricultural lands are to be categorized to different types of land—namely, those to be prioritized for protection, those for safe utilization, and, lastly, those to be strictly controlled.289 The draft is ambitious, but its application promises to be problematic and long. Conclusion This article provided an overview of China’s FSL 2015. By reviewing in some detail this extremely complex legislation, it showed that FSL 2015 represents a dramatic step forward compared to FSL 2009, its predecessor, which was China’s first-ever general food safety law. It also aimed to set FSL in its social and economic context. While focusing mainly on positive law, it sought also to put this important legislative reform in a broader theoretical context, using sources from law and other disciplines. It drew on the well-known metaphor often ascribed to Deng Xiaoping. We emphasized the gradual normative progress of Chinese food safety legislation by referring to the metaphor of ‘crossing the river by feeling the stones’ to express the method of gradualism, exploration, and experimentation. In addition, however, we noted that many stones may be slippery, risky, or insecure, and that significant difficult challenges remain. Finally, we considered certain structural obstacles or systemic features, using the metaphor of ‘overhanging branches’ to express continuing issues in ensuring safe food for ordinary people in China. Does FSL 2015 provide a pathway towards improving the safety of food for most people? Only time will tell. FSL 2015 draws heavily on an international normative repertoire for food safety. As already noted, the international normative repertoire for food safety owes much to the USA, the EU, the Codex Alimentarius, multinational food companies, and international organizations such as the WTO. The concept of an ‘international normative repertoire’ might appear to be an example of ‘transnational law’, in the sense defined by Philip Jessup in his 1956 Yale Law School Storrs Lectures as ‘all law which regulates actions or events that transcend national frontiers’.290 The 60 years since Jessup’s lecture have shown, however, that his definition is too all encompassing. A more recent revision is Halliday and Shaffer’s more precise concept of ‘transnational legal order’,291 which emphasizes international or transnational origins, an almost Kelsenian conception of ‘legal order’, defined (by Hans Kelsen) as ‘an aggregate or plurality of general and individual norms that govern human behavio[u]r’292 and similarities among transnational, national, and local norms.293 In the field of food safety law, as one of the present authors has argued elsewhere concerning pesticide regulation, this ‘reflects the extent to which Chinese government policies have evolved to incorporate and reflect internationally agreed norms and the extent to which the Chinese government has successfully integrated transnational law into the domestic legal system’.294 In normative terms, China’s FSL 2015 converges on many points with food safety law in the USA and the EU. From a strictly normative perspective, FSL 2015, thus, demonstrates a process of partial regulatory convergence. There remain, of course, numerous differences from the standpoint of the law in action. We can identify three different implications. First, as compared with the USA and the EU, China combines striking normative convergence and great practical divergence. As a consequence, real regulatory collaboration between trading partners has been achieved through administrative cooperation coupled with bilateral trade agreements.295 Second, this configuration has meant that international institutions such as the WTO have had to assume greater responsibility than might have been expected in defining the rules of the food safety law game, notably with regard to trade, but inevitably many so-called ‘trade matters’ reach deep into the heart of domestic regulatory systems, including for food safety. Third, the conjunction of normative convergence and great differences in practice between the USA and the EU, on the one hand, and China, on the other hand, mean that China and its FSL 2015 may be able to play a pioneering role as a normative and practical model in advancing the cause of food safety in other jurisdictions with the same or lower per capita income. These themes remain to be explored in further research. As these remarks make clear, FSL 2015 is not simply a reception or translation of the international normative repertoire. It has specific Chinese characteristics. Like its major trading partners, China has tried—not always successfully, so far—to confront the challenges of simplifying and updating standards, resolving bureaucratic turf wars, trying to restore public confidence in food safety regulation, and reconciling business interests and public demand. China participates actively in the WTO and the Codex Alimentarius. These policies have been shaped by Chinese history and culture. A more fundamental feature of Chinese food safety law and policy is the role of the CPC. This is a basic structural principle of China’s entire food safety system, manifested clearly in recent governmental reforms and in the overriding concern for social stability. Another important element is the size, large population, and diversity of China, with numerous complex value chains; online sales of food, a specific export policy based on elite export-oriented firms, and small workshops are only three examples. There remain the almost intractable problems of scale in the sense of managing cooperation between different levels of government; the provision of adequate infrastructure in the face of severe constraints in human, technical, and financial resources; implementation of and compliance with law and administrative regulations in a society in which law has frequently played at best a secondary role in social ordering; public participation and risk communication, including the controversial role of the media; and supplying safe food to ordinary consumers in a highly polluted environment. In understanding China’s FSL 2015, comparisons with the USA and the EU are illuminating in normative terms but they are not necessarily the best guideposts in terms of the law in action. We consider that a thorough comparison of FSL 2015 with food safety regulation in Brazil could illuminate ways to improve food safety law in China. With basically the same per capita income in purchasing power parity terms as China, the Brazilian example demonstrates the importance of constant updating of legislation, selective alignment with international standards, national monitoring plans, greater investment in scientific research, and more public education and awareness.296 We consider that China and Brazil have much to learn from each other. Finally, in our view, law is significant not only in providing rules or guidelines for action but also, and of equal importance, in the case of FSL 2015, for what it symbolizes and communicates in China and in other countries. China’s FSL 2015 is critical for China and for the rest of the world, especially in the era of the Silk Road Initiative. Despite the manifold significance of law, however, the most important challenges in providing safe food for ordinary people in China are public education, risk communication and the elaboration of real social governance. In our view, meeting these challenges should now be the priority. We are grateful to Susan Finder, Hu Zhouke, Lu Yi, Ni Lili, Anne-Lise Strahtmann, Sun Boxuan, Wang Jiayi, Wen Shuke, Zhang Sheng, Zhang Xuan, Zheng Xinjia and Zhu Dianmeng for their contributions to this article. Men Jing and Tian He provided useful documents. We thank especially Qiao Liu, Ni Lili and the anonymous reviewers of this journal for very helpful comments. Snyder expresses his gratitude to the State Administration of Foreign Experts Affairs of the People’s Republic of China for the opportunity to serve in 2013 as Leading Foreign Expert to China’s Central Government on the revision of China’s food safety system and thus to contribute to the preparation of China’s 2015 Food Safety Law. Snyder presented an earlier draft of part of the article to the Food and Health Forum: How Innovation Impacts the Quality of Life, organized in Hong Kong by the Consulate-General of Italy for Hong Kong and Macau and the Regional Government of Emilia-Romagna, Italy, on Tuesday 21 November 2017. We also wish to thank Dean Phil McConnaughay, Peking University School of Transnational Law and Peking University Shenzhen Graduate School for financial support. Footnotes 1 中华人民共和国食品安全法 (2015 修订) (现行有效) (Food Safety Law of the China 2015) (FSL 2015) (as revised and adopted at the fourteenth session of the Standing Committee of the twelfth National People’s Congress of the People’s Republic of China on 24 April 2015 (entry into force on 1 October 2015), Order no 21 of the President of the People’s Republic of China on 24 April 2015, adopted at the seventh Session of the Standing Committee of the eleventh National People’s Congress on 28 February 2009, and revised at the fourteenth Session of the Standing Committee of the National People’s Congress on 24 April 2015; slightly different English translations are available at <www.lawinfochina.com> and on Westlaw China). 2 See Francis Snyder, Food Safety Law in China: Making Transnational Law (EJ Brill 2016). For the previous Food Safety Law 2009, see Global Agricultural Information Network (GAIN), Foreign Agricultural Service, United States Department of Agriculture (USDA), ‘China, People’s Republic of: Food Safety Law Draft for Comment (Compared with the 2009 Food Safety Law)’, GAIN Report no 13064 (8 November 2013) <https://gain.fas.usda.gov/Recent%20GAIN%20Publications/Food%20Safety%20Law%20Draft%20for%20Comment%20_Beijing_China%20-%20Peoples%20Republic%20of_11-8-2013.pdf> <access date?>. See also United States Foreign Agricultural Service, Global Agriculture Information Network (GAIN), ‘China, People’s Republic of: FAIRS Subject Report: Food Safety Law of the People’s Republic of China 2009’, GAIN Report no CH9019, 11 March 2019, <https://apps.fas.usda.gov/gainfiles/200903/146327461.pdf>. 3 FSL 2015 is accompanied by an Implementing Regulation, the fate of which illustrates clearly the complexity and controversial nature of the main legislation. The Regulation on the Implementation of the Food Safety Law of the People’s Republic of China has gone through three drafts. The China Food and Drug Administration released its Draft of the revised Regulation on the Implementation of the Food Safety Law of the People’s Republic of China (IR First Draft) for public comments on 9 December 2015. The IR First Draft was posted for public comment until 8 January 2016. According to its website, there were five major changes in the draft compared to its predecessor Regulation enacted on 20 July 2009. Then, in October 2016, the State Council’s Legislative Affairs Department issued a revision of the First Draft (IR First Revision). Most recently, in August 2017, China notified the World Trade Organization (WTO) of the Second Revised Draft (IR Second Revision) of the Regulations on the Implementation of the Food Safety Law of the People’s Republic of China. The IR First Draft contained 200 articles, which was shortened to 98 articles in the IR Second Revision. The Chinese government has notified the WTO of the last revision, signalling that the drafting and the revisions are coming closer to adoption. 4 World Bank, ‘GDP Per Capita, PPP (Current International $) <https://data.worldbank.org/indicator/NY.GDP.PCAP.PP.CD> accessed 6 April 2018. 5 See René David, ‘Les sources du code civil éthiopien’ (1962) 14(3) Revue internationale de droit compare 497, translated as ‘A Civil Code for Ethiopia: Considerations on the Codification of the Civil Law in African Countries’ (1962–3)37 Tulane L Rev 187; compare Jeswald Salacuse, ‘Modernization of Law in French Speaking Africa: Fantasy or Revolution?’ [1969] African Law Studies 62. 6 For recent essays on numerous aspects of food safety in China, see Joseph J Jen and Junshi Chen, Food Safety in China: Science, Technology, Management and Regulation (Wiley 2017). On scarcity and limitations of data and information sources, see Forum on Health, Environment and Development, Working Group on Food Safety, ‘Food Safety in China: A Mapping of Problems, Governance and Research’ (February 2014) 78–83 <http://webarchive.ssrc.org/cehi/PDFs/Food-Safety-in-China-Web.pdf> accessed 12 April 2018. 7 Francis Snyder, The EU, the WTO and China: Legal Pluralism and International Trade Regulation (Hart Publishing 2010) 260. 8 See Mariëlle D Masson-Mathee, The Codex Alimentarius Commission and Its Standards (TMC Asser Press 2007). 9 See Ahmed Mahiou and Francis Snyder (eds), La Sécurité alimentaire/Food Security and Food Safety (Martinus Nijhoff 2006); Snyder (n 2) 241–77. 10 See also Li Yanfang and Wu Kaijie, ‘Source Control or End Control: What China Should Do to Ensure Edible Agricultural Product Safety for Exports?’ (2017) 12(2) Frontiers of Law in China 193. 11 EC Regulation no 178/2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety (2002) OJ L31/1. 12 An Act to Amend the Federal Food, Drug, and Cosmetic Act with Respect to the Safety of the Food Supply, Public Law 111-353, 124 Stat 3385, 21 USC 2201 <http://www.gpo.gov/fdsys/pkg/PLAW-111publ353/pdf/PLAW-111publ353.pdf> accessed 6 May 2018 (Food Safety Modernization Act, FSMA). See also Ron Knutson and Luis Ribeira, ‘Provisions and Economic Implications of FDA’s Food Safety Modernization Act’ (January 2011) <https://www.afpc.tamu.edu/pubs/1/554/IP%2011-01.pdf> accessed 6 February 2016. 13 FSL 2015 (n 1) art 28; compare FSL 2009 (n 1) art 23. 14 涂永前 (Tu Yongqian), ‘关于当前我国食品安全治理若干问题的思考 (Reflections on China’s Current Food Safety Governance) (2017)34(3) J Jianghan University (Social Science Edition) 29. 15 ChemLinked, ‘CFDA Releases Plan to Control Food Fraud and False Claims’ (ChemLinked, 16 November 2017) <https://food.chemlinked.com/news/food-news/cfda-releases-plan-control-food-fraud-and-false-claims> accessed 28 November 2017. 16 See Alexandr Svetlicinii, ‘ “Fake Food” as a New Ingredient in the “Cuisine Juridique”: A Case for “Regulatory Co-Opetition” ’ (2018) 37(1) Medicine & L 175. 17 FSL 2015 (n 1) art 18 (2), (4), (6). 18 Ibid art 19. 19 Ibid. 20 EC: Measures Concerning Meat and Meat Products (Hormones), Appellate Body Report, WT/DS26, 48/AB/R, adopted 13 February 1998. 21 EC Regulation No 178/2002 (n 11). The earlier influential formulation in the 2000 Cartagena Protocol on Biosafety to the Convention on Biological Diversity (39 ILM 1027) was stated more clearly as a decision-making principle: ‘Lack of scientific certainty due to insufficient relevant scientific information and knowledge regarding the extent of the potential adverse effects of a living modified organism on the conservation and sustainable use of biological diversity in the Party of import, taking also into account risks to human health, shall not prevent that Party from taking a decision, as appropriate, with regard to the import of the living modified organism in question as referred to in paragraph 3 above, in order to avoid or minimize such potential adverse effects’ (Cartagena Protocol on Biosafety to the Convention on Biological Diversity, Text and Annexes, article 10(6), Montreal, 2000) <https://www.cbd.int/doc/legal/cartagena-protocol-en.pdf> accessed 5 April 2018. 22 See also Lu Yi, ‘Critical Thinking About the Precautionary Principle in China’s Food Safety Law’ (2016) 11 Frontiers L in China 692, 702. 23 FSL 2015 (n 1) art 3. 24 Ibid art 5 cross-refers incorrectly to art 11 for prescription of this plan. 25 See also China Drug and Food Administration, ‘Administrative Measures for the Risk Classification of Food Production and Operation (‘总局关于印发食品生产经营风险分级管理办法（试行）的通知’) (9 September 2016). 26 Compare IR Second Revision (n 3) art 9 and IR First Revision (n 3) art 14. 27 See generally Christian Coff and others (eds), Ethical Traceability and Communicating Food (Springer 2008). 28 FSL 2015 (n 1) art 42. 29 JD.com has been described as ‘the largest e-commerce company in China and the country’s largest retailer by revenue’; Giulio Prisco, ‘IBM and Walmart Launch Blockchain-Based Food Safety Alliance for China’ Nasdaq (21 December 2017) <https://www.nasdaq.com/article/ibm-and-walmart-launch-blockchain-based-food-safety-alliance-for-china-cm895491> accessed 7 May 2018. On JD.com, see <http://corporate.jd.com/ourHistory> accessed 7 May 2018. 30 Ibid; Eva Yoo, ‘Walmart, JD, IBM and Tsinghua University Launch a blockchain Food Safety Alliance in China’ technode (14 December 2017) <https://technode.com/2017/12/14/walmart-jd-com-ibm-tsinghua-university-launch-blockchain-food-safety-alliance-china/> accessed 7 May 2018. 31 FSL 2015 (n 1) art 124(9). 32 See Lu Yi, (n 22), 709. 33 IR First Draft (n 3) art 65. 34 Compare IR First Draft (n 3) art 65 and IR Second Revision (n 3) art 68. The deletion of grades appears to be more of a mistake than an intentional elimination. See GAIN, ‘Regulations of the Implementation of the Food Safety Law (Revised Draft Noticed as SPS 1055)’, GAIN Report no CH 17046 (27 September 2017) <https://gain.fas.usda.gov/Recent%20GAIN%20Publications/Regulations%20on%20the%20Implementation%20of%20the%20Food%20Safety%20Law_Beijing_China%20-%20Peoples%20Republic%20of_9-27-2017.pdf> accessed 4 June 2018. 35 高凛 (Gao Lin), ‘ 我国食品召回制度管窥——兼评 《食品安全法》 与 《食品召回管理办法》 ’ (‘China’s Food Recall System: Comment on Food Safety Law and Administrative Measures for Food Recalls’) (2017) 6 China Food Safety Magazine 150. 36 See the comments and questions by the USA and the EU during many WTO reviews of China’s trade policy in Snyder (n 2) ch 8, which revises Snyder, ‘No Country Is an Island: How the WTO Monitors Chinese Food Safety Law through the Trade Policy Review Mechanism (TPRM)’ (2015) 14(11) J Integrative Agriculture 2142. 37 FSL 2015 (n 1) art 28. 38 Compare FSL 2009 (n 1) art 23. 39 See eg the list of standards to be revised or developed in GAIN, ‘China: People’s Republic of, China Releases 2017 Plan for National Food Safety Standards Work’, GAIN Report no CH 17070 (20 December 2017) <https://gain.fas.usda.gov/Recent%20GAIN%20Publications/China%20Released%20Plan%20for%20National%20Food%20Safety%20Standards%20Work%20in%202017_Beijing_China%20-%20Peoples%20Republic%20of_12-20-2017.pdf> accessed 11 April 2018. 40 Zhutian Wang and others, ‘Food Safety Standards’ in Jen and Chen (n 6) 363, 378–9. For an example, see Guiding Case no 23: China Guiding Cases Project, ‘Auchan Hypermaret Jiangning Store Sold Sausages after Sell-by Date and Thus Not Conforming to Food Safety Standards’ (26 January 2014) <https://cgc.law.stanford.edu/guiding-cases/guiding-case-23/> accessed 11 April 2018. 41 Francis Snyder and Ni Lili, ‘Chinese Apples and the Emerging World Food Trade Order: Food Safety, International Trade and Regulatory Collaboration between China and the European Union’ (2017) 5(1) Chinese J Comp L 253. 42 WTO, Trade Policy Review Body, Trade Policy Review, Report by the Secretariat, China, Doc WT/TRP/S/342 (15 June 2016) 64, para 3.68 <https://www.wto.org/english/tratop_e/tpr_e/s342_e.pdf> accessed 16 September 2016. 43 Zhang Yue, ‘China Issues New Rules to Improve Quality of Consumer Goods’ (25 August 2016) <http://english.govt.cn/premier/news/2016/08/25/content_281475425704697.htm> accessed 26 February 2017. 44 Cornelius van der Meer, World Bank, ‘China’s Compliance with Food Safety Requirements for Fruit and Vegetables: Promoting Food Safety, Competitiveness and Poverty Reduction’ (26 January 2016) 56 <http://s3.amazonaws.com/zanran_storage/www.worldbank.org.cn/ContentPages/43434457.pdf> accessed 1 December 2016. 45 Snyder and Ni (n 40) 284. 46 GAIN, ‘China – People’s Republic of, Retail Foods’, GAIN Report [unnumbered] (31 December 2014). 47 GAIN, ‘China – People’s Republic of, Food Service – Hotel Restaurant Institutional’, GAIN Report no CH156006 (10 February 2015). 48 National Health Commission of the People’s Republic of China Announcement no 14 (2017) <http://www.nhfpc.gov.cn/sps/s3593/201704/15031ab65db34492eab8fb5819e9cb466.shtml>Z> accessed 6 August 2017. See also Rachel Shen, ‘China to Regulate Imported Foods without Comparable Chinese National Food Safety Standards’ ChemLinked (3 May 2017) <https://food.chemlinked.com/news/food-news/china-regulate-imported-foods-without-comparable-chinese-national-food-safety-standards> accessed 6 August 2017. 49 See also United States – Certain Measures Affecting Imports of Poultry from China, WTO Doc DS392 (2010). 50 Compare the Accredited Third-Party Certification Program under the FSMA, summarized at US Food and Drug Administration (USFDA), ‘Accredited Third-Party Certification Program’ <https://www.fda.gov/food/guidanceregulation/importsexports/importing/ucm558461.htm> accessed 5 December 2017; USFDA, ‘FSMS Final Rule on Accredited Third-Party Certification’ <https://www.fda.gov/Food/GuidanceRegulation/FSMA/ucm361903.htm> accessed 5 December 2017. 51 FSL 2015 (n 1) art 101. 52 FSMA (n 12) Title III. 53 Francis Snyder and Hu Zhouke, ‘Pesticides in Chinese Courts’ (research in progress). 54 FSL 2015 (n 1) art 122. 55 Ibid art 123. This includes providing premises for such acts. 56 Ibid art 124. 57 See ibid arts 125–6. 58 Ibid art 127. 59 Ibid art 131. 60 Criminal Law of the People’s Republic of China, adopted by the Second Session of the fifth National People’s Congress on 1 July 1979 and amended by the fifth Session of the eighth National People’s Congress on 14 March 1997 (Criminal Law). 61 Ibid art 141. 62 Ibid art 143. 63 Ibid art 144. 64 Ibid art 147. 65 Supreme People’s Court and Supreme People’s Procuratorate, ‘Interpretation on Certain Issues Concerning the Application of Law in Food-Related Criminal Cases’ no 12 (2013); see China Briefing, ‘China Releases Punishment Standards for Food-Related Crimes’ <http://www.china-briefing-com/news/2013/05/08/china-releases-punishment-standards-for-food-related-crimes.html> accessed 5 October 2017. 66 Criminal Law (n 60) art 225. 67 Snyder (n 2). 68 FSL 2015 (n 1) art 74. 69 Ibid art 81, para 1. 70 Ibid art 81 para 2. 71 GAIN, ‘China, People’s Republic of, China’s Cross-border E-Commerce Opportunities for U.S. Exports’, GAIN Report no 15801 (17 August 2015) <http://gain.fas.usda.gov/> accessed 11 December 2015. 72 FSL 2015 (n 1) art 81, para 3. 73 Ibid art 81, para 4. 74 Ibid art 81, para 5. 75 Ibid art 82, para 1. 76 Ibid art 83. 77 Ibid arts 124, para 1(6), 124 para 1(7) and 126 para 1 (9), respectively. 78 See IR First Draft (n 3) art 10(2); IR First Revision (n 3) art 10(2)). 79 IR Second Revision (n 3) art 21. 80 IR First Draft (n 3) art 78; IR First Revision (n 3) art 80, IR Second Revision (n 3) art 44. 81 IR First Draft (n 3) art 79; IR First Revision (n 3) art 82 IR Second Revision (n 3). 82 IR Second Revision (n 3) art 80. 83 IR First Draft (n 3) art 87; IR First Revision (n 3) 87. 84 IR First Draft (n 3) art 89; IR First Revision (n 3) art 91. 85 IR First Draft (n 3) art 28; IR First Revision (n 3) art 25; IR Second Revision (n 3) art 14. 86 FSL 2015 (n 1) art 26(1). 87 Ibid art 11, para 2. 88 Ibid art 32(1), (2). 89 Ibid art 124, para 1(1). 90 See Francis Snyder, Food Safety Law in China: Making Transnational Law (Brill 2016) 165–6 and sources cited there. 91 On definition, see State Council, White Paper on Food Safety (2007) <http://www.chinadaily.com.cn/china/2007-08-17/content_602557.htm> accessed 28 November 2017. The Standard on Basic Requirements of Food Quality and Safety Control of Small Workshops (GB/T23734-2009) defines ‘small workshop’ as a ‘unit or individual that is in food production business according to relevant laws and regulations, having fixed production place and few employees, being of small scale, making products without package or with plain package, selling products within certain area (excluding those who sell and produce at the same time)’. This definition does not include mobile street vendors. We are grateful to Zhang Sheng for research assistance on this point. 92 State Council, White Paper on Food Safety and Quality (2007) <http://www.chinadaily.com.cn/china/2007-08/17/content_6032557.htm> accessed 28 November 2017. 93 See Sebastien Heilmann and Elizabeth J Perry (eds), Mao’s Invisible Hand: The Political Foundations of Adaptive Governance in China (Harvard University Press 2011). 94 Compare FSL 2015 (n 1) art 36; FSL 2009 (n 1) art 29. 95 FSL 2009 (n 1) art 20. 96 FSL 2015 (n 1) art 36, para 1. 97 Ibid art 36, para 3. 98 Ibid art 36, para 2; compare FSL 2009 (n 1) art 30. 99 FSL 2015 (n 1) art 45, para 2. 100 Ibid art 127. 101 Ibid art 29, para 1. 102 Ibid art 24. 103 On Liaoning Province, in particular, see李晓燕 (Li Xiaoyan), ‘辽宁省食品生产加工小作坊和食品摊贩监管立法之现状与建议’ (‘Status Quo and Advice on Liaoning Province’s Legislation on Small Workshops and Food Vendors’) (2016) 11 L & Economy, 42. 104 闫海 (Yan Hai), ‘利益协调理念下的食品摊贩法律治理: 基于地方立法的文本分析’ (‘Governance of Food Vendors: A Content Analysis of Local Legislation’) (2017) 2 Local Legislation J 3. 105 Zhang, Sheng (张升), ‘Study on Market Access Mechanism of Small Workshops in China: Based on Text Analysis of 14 Provincial Regulations’ (‘中国食品小作坊市场准入制度研究: 基于14个省级地方法规的文本研究’) JD/JM Thesis, Peking University School of Transnational Law, Peking University Shenzhen Graduate School (2017) (in English with Chinese summary). 106 Salo Coslovsky, ‘Enforcing Food Quality and Safety Standards in Brazil: The Case of COBRACANA’ (2013) 649 Annals American Academy Pol & Social Science 122. 107 National People’s Congress Standing Committee Legal Affairs Committee Administrative Law Office, The Food Safety Law of the People’s Republic of China Definition and Practice Guide (中华人民共和国食品安全法)释义及实用指南 (Zhong Hua Ren Min Gong He Guo Shi Pin An Quan Fa Shi Yi Ji Shi Yong Zhi Nan)) (China Democracy and Legal Publishing House 2015) 208 (Food Safety Law Practice Guide). 108 HKTDC Research, ‘China’s Health Food Market’ (24 September 2015) <http://china-trade-research.hktdc.com/business-news/article/China-Consumer-Market/China-s-Health-Food-Market/ccm/en/1/1X000000/1X002L54.htm> accessed 11 December 2015. 109 FSL 2015 (n 1) art 17, para 1. 110 Ibid art 74. 111 Food Safety Law Practice Guide (n 107) 207. 112 Ibid. 113 FSL 2015 (n 1) art 83. 114 See eg ‘USCHPA submits supplements report to China gov’t’ (28 July 2014) available at <http://newhope360.com/regulatory/uschpa-submits-supplements-report-china-gov-t>, accessed 19 July 2014. 115 FSL 2015 (n 1) art 76, para 1. 116 Ibid art 76, para 2. 117 Food Safety Law Practice Guide (n 107) 211. 118 FSL 2015 (n 1) art 76, para 1. 119 See Food Safety Law Practice Guide (n 107). 120 Ibid. 121 Ibid. 122 FSL 2015 (n 1) art 82, para 1. 123 Ibid art 124, para 1(6). 124 Ibid art 152, para 2. 125 See Francis Snyder, Lu Yi and Gulrez Yazdani, ‘Traditional Chinese Medicine and European Union Law: Cultural Logics, Product Identities, Market Competition, Legal Rechannelling and the Need for Global Legal and Medical Pluralism’ (2014) 2 Peking University LJ 129. 126 FSL 2015 (n 1) art 74 para 1. 127 Food Safety Law Practice Guide (n 107) 209. 128 FSL 2015 (n 1) art 74, para 2; FSL 2009 (n 1) art 51. 129 Food Safety Law Practice Guide (n 107). 130 Addition of harmful raw material that is not on the list of prohibited material but which possesses the same attributes and can be determined to cause the same harm may be subject to punishment under article 144 of the Chinese Criminal Law (n 60): ‘Article 20 of the Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning the Application of Law in the Handling of Criminal Cases on Endangering Food Safety: The following substances should be determined to be “toxic and harmful non-food raw materials”: (1) substances prohibited by laws and regulations from being added and used in food production and operation activities; (2) substances on the List of Non-Edible Substances That May Have Been Unlawfully Added to Food and the List of Substances That May Have Been Illegally Added to Health Food published by the relevant department of the State Council; (3) pesticides, veterinary drugs, and other toxic and harmful substances prohibited from being used as announced by the relevant department of the State Council; [and] (4) other substances that endanger human health.’ 《北京阳光一佰生物技术开发有限公司、习文有等生产、销售有毒、有害食品案》 Beijing Sunshine100 Biotechnology Development Company Co Ltd, XI Wenyou et al, A Case of Producing and Selling Toxic and Harmful Food, Stanford Law School, China Guiding Cases Project, Guiding Case no 70 (discussed and passed by the Supreme People’s Court, Released on 28 December 2016) <https://cgc.law.stanford.edu/wp-content/uploads/sites/2/2017/01/GC70-ENGLISH.pdf> accessed 8 August 2016. 131 FSL 2015 (n 1) art 75, para 2. 132 See Food Safety Law Practice Guide (n 107). 133 FSL 2015 (n 1) art 75, para 3. 134 See Food Safety Law Practice Guide (n 107). 135 Ibid. 136 Ibid. 137 FSL 2015 (n 1) art 78. 138 Food Safety Law Practice Guide (n 107) 214. 139 FSL 2015 (n 1) art 79. 140 Advertising Law of the People’s Republic of China (2015) art 19. 141 Ibid art 68. 142 Food Safety Law Practice Guide (n 107) 216. 143 FSL 2015 (n 1) art 82, para 1. 144 Ibid art 80. See also Food Safety Law Practice Guide (n 107) 222. 145 FSL 2015 (n 1) art 83. 146 Ibid art 109, para 2. 147 Ibid art 80, para 1. 148 Ibid art 80, para 2. 149 Covington, ‘China Issues Revised Food Safety Law’ (2015) <https://www.cov.com/-/media/files/corporate/publications/2015/05/china_issues_revised_food_safety_law.pdf> accessed 13 October 2015. 150 FSL 2015 (n 1) art 175(8). 151 Ibid art 184(7). See also China Food and Drug Administration, ‘China Food and Drug Administration Public Solicitation of the views on the Draft Amendments to the Implementation Regulation of the Food Safety Law’ (国家食品药品监督管理总局对外公开征求 《食品安全法实施条例》 修订草案的意见) (9 December 2015) <http://www.sda.gov.cn/WS01/CL0782/137340.html> accessed 28 November 2017; Hualv, ‘Draft Amendments of the Implementation Regulation of the Food Safety Law for Official Review’ (Latest Version) (中华人民共和国食品安全法实施条例修订草案送审稿(最新))(20 October 2016) <http://www.66law.cn/tiaoli/9873.aspx> accessed 28 November 2017. 152 IR Second Revision (n 3) art 80; FSL 2015 (n 1) art 124, para 1. 153 Compare IR First Draft (n 3) art 89 and IR First Revision (n 3) art 91. 154 IR Second Revision (n 3) art 41. 155 IR First Revision (n 3) art 82. 156 IR First Draft (n 3) art 79. 157 GAIN, ‘Regulations of the Implementation of the Food Safety Law (Revised Draft Noticed as SPS 1055)’, GAIN Report no CH 17046 (29 September 2017) <https://gain.fas.usda.gov/Recent%20GAIN%20Publications/Regulations%20on%20the%20Implementation%20of%20the%20Food%20Safety%20Law_Beijing_China%20-%20Peoples%20Republic%20of_9-27-2017.pdf> accessed 4 June 2018. 158 IR First Revision (n 3) art 38. 159 Ibid art 36. 160 IR Second Revision (n 3) art 19. 161 Compare IR First Draft (n 3) art 88; IR First Revision (n 3) art 90. 162 IR Second Revision (n 3) art 44. 163 See Ding Yufeng, ‘Protection of Genetically Modified Technology and Balance of Rights: Orientation of Laws and Policies in China’ (2016) 4(3) China Legal Science 47; David Talbot, ‘China’s GMO Stockpile’ MIT Technology Review (21 October 2014) <https://www.technologyreview.com/s/531721/chinas-gmo-stockpile/> accessed 4 April 2018; Zhao, Jennifer H and Ho, Peter, ‘A Developmental Risk Society? The Politics of Genetically Modified Organisms (GMOs) in China’ (2005) 4(4) Int’l J Environment & Sustainable Development 370; Jarvis, Darryl and Richmond, Noah, ‘Regulation and Governance of Nanotechnology in China: Regulatory Challenges and Effectiveness’ (2011) 2(3) Eur JL & Technology 1. 164 See European Communities – Measures Affecting the Approval and Marketing of Biotech Products, Reports of the Panel, Docs WT/DS291/R, WT/DS292/R, WT/DS293/R (29 September 2006). 165 In sixth place according to ‘Top 11 Genetically Modified Crops Producing Countries’ GMO Free Gazette <http://www.gmofreegazette.com/general/top-11-genetically-modified-crops-producing-countries/> accessed 5 May 2018. In eighth place according to ‘Pocket K No 16: Biotech Crop Highlights in 2016’ International Service for the Acquisition of Agri-Biotech Applications <http://www.isaaa.org/resources/publications/pocketk/16/> accessed 8 May 2018. 166 For an overview, see United States Library of Congress, ‘Restrictions on Genetically Modified Organisms: China’ (2015) <http://www.loc.gov/law/help/restrictions-on-gmos/china.php> accessed 11 December 2015. 167 FSL 2015 (n 1) art 69. 168 农业转基因生物安全管理条例 (Regulations on Administration of Agricultural Genetically Modified Organisms Safety (GMO Regulations)], adopted at the thirty-eighth Executive Meeting of the State Council on 9 May 2001, promulgated by Decree no 304 of the State Council of the People’s Republic of China of 2001 on 23 May 2001, revised 8 January 2011), 2001 Fagui Huibian 1072 <http://english.agri.gov.cn/governmentaffairs/lr/st/201301/t20130115_8106.htm> and <http://www.cf99.com/view_d.php?id=75050> accessed 5 December 2017; English translation available at USDA, ‘China, People’s Republic of – Biotechnology – GMO Administration Regulation 2001 <http://www.fas.usda.gov/gainfiles/200106/110681034.pdf> accessed 5 December 2017. 169 农业转基因生物安全评价管理办法 (Administrative Measures for Safety Evaluation Agricultural GMO) (issued by the Ministry of Agriculture, 5 January 2002, effective 20 March 2002, revised 1 July 2004) <http://www.moa.gov.cn/ztzl/zjyqwgz/zcfg/201007/t20100717_1601305.htm> accessed 5 December 2017. 170 农业转基因生物加工审批办法 (Measures for Examination and Approval of Processing Agricultural GMO) (issued by MOA 16 January 2006, effective 1 July 2006) <http://www.gov.cn/flfg/2006-03/02/content_215830.htm> accessed 5 December 2017. 171 农业转基因生物进口安全管理办法 (Administrative Measures for Safety Control of Importing Agricultural GMO Products) (issued by MOA 5 January 2002, effective 20 March 2002, revised 1 July 2004), <http://www.moa.gov. cn/ztzl/zjyqwgz/zcfg/201007/t20100717_1601304.htm> accessed 5 December 2017. 172 进出境转基因产品检验检疫管理办法 (Administrative Measures on the Entry and Exit Agricultural GMO Products Inspection and Quarantine) (issued by General Administration of Quality Supervision, Inspection and Quarantine of PRC (AQSIQ) 5 September 2001), <http://www.moa.gov.cn/ztzl/zjyqwgz/zcfg/201007/t20100717_1601300.htm> accessed 5 December 2017. 173 农业转基因生物标识管理办法 Administrative Measures for Labeling Agricultural Genetically Modified Organisms Marks) (issued by Ministry of Agriculture 5 January 2002, effective 20 March 2002, revised 1 July 2004), 2002 Jan-June Falü Qüanshu 1689. An unofficial English translation of the Measures on the Safety Evaluation Administrative of Agricultural GMOs, the Measures for the Safety Administration of Ag GMO Imports and the Measures for Ag GMO Labeling Administration may be found in GAIN, ‘China, People’s Republic of – Food and Agricultural Import Regulations and Standards – AG GMO Implementation Measures 2002’, GAIN Report no CH2002 (14 January 2012) <http://www.fas.usda.gov/gainfiles/200201/135683205.pdf accessed 5 December 2017. 174 FSL 2015 (n 1) arts 67 and 68, respectively. 175 Ibid art 69. 176 Ibid art 125, para 1 (3). 177 Ibid art 125. See 中华人民共和国食品安全法(2015修订) (Food Safety Law of the People’s Republic of China (2015 Revision)) (adopted at the seventh session of the Standing Committee of the eleventh National People’s Congress on 28 February 2009, revised 24 April 2015), English translations at USDA <https://gain.fas.usda.gov/Recent%20GAIN%20Publications/Amended%20Food%20Safety%20Law%20of%20China_Beijing_China%20-%20Peoples%20Republic%20of_5-18-2015.pdf> accessed 15 December 2017. 178 周超 (Zhou Chao), ‘国际法框架下我国转基因食品标识制度的完善’ (‘Improvement of China’s Genetically Modified Food Indication System under the Framework of International Law’) (2016) 6 Seeker 53. 179 See GAIN, ‘China, People’s Republic of, Online Shopping in East China for Food and Beverages’, GAIN Report no 13803 (6 May 2013 ) <http://gain.fas.usda.gov/> accessed 11 December 2015. 180 GAIN, ‘China, People’s Republic of, China’s Cross-border E-Commerce Opportunities for U.S. Exports’, GAIN Report no 15801 (17 August 2015) <http://gain.fas.usda.gov/> accessed 11 December 2015. 181 GAIN, ‘China, People’s Republic of, China announces draft rules on cross-border e-commerce’, GAIN Report: unnumbered (27 October 2015) <http://gain.fas.usda.gov/> accessed 11 December 2015. ‘Import bonding’ means that the products are declared at customs as being imported via cross-border e-commerce, are delivered in whole batches to a special supervision zone for storage, and subsequently are divided into independent packages by the e-commerce operator and delivered to the consumer: Ibid. 182 IR First Draft (n 3) art 96; IR First Revision (n 3) art 100. 183 IR First Draft (n 3) art 100; IR First Revision (n 3) art 96. 184 IR First Revision (n 3) art 96. 185 IR Second Revision (n 3) art 45. 186 FSL 2015 (n 1) art 62(1). 187 Ibid art 62(2). 188 Ibid art 131, para 1. 189 Yuanshi Bu (ed), Chinese Civil Law (CH Beck 2013) 78, 164. See also 罗欢平(Luo Huanping), ‘论网络食品交易第三方平台的惩罚性赔偿责任: 兼评新 《食品安全法》 第131条第1款’ (‘Third-Party Online Food Trading Platform and Punitive Damages: Comment on Article 131 (1) of Food Safety Law (2015 Revision)’) (2017) 36(9) J Huaihua University. 190 FSL 2015 (n 1) art 131, para 2. 191 IR Second Revision (n 3) art 69. 192 See Snyder (n 2) for more detailed analysis, including perspectives on China’s food safety system as seen by other WTO Members. 193 FSL 2015 (n 1) art 5. 194 Ibid art 7. 195 Ibid art 132. 196 Ibid art 76. 197 Ibid art 109, para 1. 198 Ibid art 109, para 3. 199 Ibid art 102, para 3. 200 Ibid art 102, para 4; compare FSL 2009 (n 1) art 70. 201 FSL 2015 (n 1) art 104. 202 IR Second Revision (n 3) art 3. 203 IR First Revision (n 3) art 3. 204 John L Yasuda, On Feeding the Masses: An Anatomy of Regulatory Failure in China (CUP 2018) 97. 205 See ibid for more detailed discussion. 206 On Brazil, see eg GAIN, ‘Brazil: Food and Agricultural Import Regulations and Standards – Narrative: FAIRS Country Report’, GAIN Report no BR16024 (4 January 2017). 207 <http://www.xinhuanet.com/politics/2018lh/2018-03/17/c_1122552185.htm> accessed 6 April 2018. 208 <http://www.xinhuanet.com/politics/2018-03/21/c_1122570517.htm> accessed 6 April 2018. 209 <http://www.xinhuanet.com/politics/2018-03/21/c_1122570517_3.htm> Google translation (accessed 6 April 2018). For another Chinese version, see <http://www.xinhuanet.com/politics/2018lh/2018-03/14/c_1122533011.htm> accessed 6 April 2018. We are grateful to Ni Lili for help with the translation. 210 <https://npcobserver.com/2018/03/14/a-guide-to-2018-state-council-institutional-reforms/> accessed 6 April 2018. 211 FSL 2015 (n 1) art 107, para 1. The principles are very general procedural guidelines: seek truth from facts, respect science, ascertain nature and cause in a timely and accurate manner, determine liability and ‘come up with rectification measures’. 212 Ibid art 107, para 2. 213 Ibid art 108. 214 Ibid art 108. 215 IR First Revision (n 3) art 122. 216 IR Second Revision (n 3) art 59. 217 Ibid art 32, para 1. 218 Ibid art 32, para 2. 219 Ibid art 32, para 3. 220 Ibid art 114. 221 See especially EC Regulation No 882/2004 on official controls performed to ensure the verification of compliance with feed and food law, animal health and animal welfare rules [2004] OJ L165/1. 222 FSL 2015 (n 1) art 133, para 1. 223 Ibid art 145(2). 224 Ibid art 145(3). 225 Ibid art 146. 226 Ibid art 138, para 2. 227 Ibid art 139, para 1. On fake certifications and related problems with prior approval for market access, see李志雄 (Li Zhixion) and涂永前 (Tu Yongqian), ‘我国食品安全法律实施中政府事前监管的法律完善’ (‘Improving Prior Supervision in Applying China’s Food Safety Laws’) (2017) 1 Academic Forum 133. 228 FSL 2015 (n 1) art 139, para 2. 229 See eg Michael Roberts and Ching-Fu Lin, ‘China Food Law Update: The 2015 Food Safety Law and Social Governance on Food Safety’ (2017) 12(2) J Food L & Policy, version posed on 21 November 2016 on SSRN at <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2872703> accessed 6 April 2018. 230 FSL 2015 (n 1) art 10, para 1; compare FSL 2009 (n 1) art 8. 231 FSL 2015 (n 1) art 23. 232 Ibid art 28, para 1. 233 See also 涂永前 (Tu Yongqian), ‘关于当前我国食品安全治理若干问题的思考’ (‘Reflections on China’s Current Food Safety Governance’) (2017) 34(4) J Jianghan University (Social Science Edition), 29. 234 FSL 2015 (n 1) art 115, para 1. 235 Ibid art 115, para 2. 236 Ibid art 116, para 2. 237 Ibid art 23. 238 Prado Júnior C, História econômica do Brasil (36th edn, Editoria Brasiliense 1988) cited in Ana Virginia Almeida Figueiredo, Elisabetta Recine and Renata Monteiro, ‘Food risk regulation: The tensions of the Brazilian Health Surveillance System’ (2017) 22(7) Ciência, Saúde Colectiva 1 at 4–8 <http://www.scielo.br/scielo.php?pid=S1413-81232017002702353&script=sci_arttext&tlng=en> accessed 28 April 2018. 239 FSL 2015 (n 1) art 118, para 1. 240 Ibid art 82, formerly in FSL 2009 (n 1) art 82. The Shenzhen city government recently decided to publish a food safety index to assess food safety in Shenzhen and to help consumers trade food information; Shenzhen Government Online, ‘Shenzhen to publish regular food safety index’ (24 January 2018) <http://english.sz.gov.cn/ln/201801/t20180124_10746433.htm> accessed 24 February 2018. 241 FSL 2015 (n 1) art 17, para 2. 242 Ibid art 31. 243 Ibid art 118, para 1; compare FSL 2009 (n 1) art 82. 244 FSL 2015 (n 1) arts 118, 119, 120. 245 Ibid art 120, para 1. 246 Ibid art 141, para 2. 247 Notification on Strengthening Prevention, Control, and Management Work on Food Safety Rumours, promulgated by the Food Safety Office of the State Council, Central Publicity Department, Ministry of Industry and Information Technology, Ministry of Public Security, Ministry of Agriculture, National Health and Family Planning Commission, State Quality Inspection Administration, State Administration of Press, Radio, Television and Film, The Food and Drug Administration and State Internet Information Office, and others. Food Safety Office of the State Council, Central Publicity Department, Reference no (Food Safety Office 2017) 23 <http://www.sda.gov.cn/WS01/CL1605/175260.html> accessed 6 August 2017 (unofficial translation at ‘State Council Food Safety Department et al Notification on Strengthening Prevention, Control, and Management Work on Food Safety Rumors’ (China Law Translate, 28 July 2017)). State Council Food Safety Department et al, Notification on Strengthening Prevention, Control, and Management Work on Food Safety Rumors. 248 See Sebastian Heilmann (ed), China’s Political System (Rowman & Littlefield 2017) 274–80; David Bandurski, ‘Can the Internet and Social Media Change the Party’ in Willy Wo-Lap Lam (ed), Routledge Handbook of the Chinese Communist Party (Routledge 2018) 372–90. 249 Li Bai and Shunlong Gong, ‘Consumer Knowledge, Attitude and Behavior Toward Food Safety’ in Jen and Chen (n 6), 323–43. 250 See eg Judith Hitchman, ‘Community Supported Agriculture Thriving in China’, ILEIA Center for Learning on Sustainable Agriculture, vol. 31 (2015) <http://www.fao.org/family-farming/detail/en/c/325680/> accessed 11 April 2018; Francis Snyder, Hu Zhouke and Zheng Xinjia, ‘Slow Food in Europe, the USA and China: A Comparative Perspective’, submitted for publication, Peking University School of Transnational Law Research Paper No. 18-6. Abstract available at SSRN: https://ssrn.com/abstract=3167906 or http://dx.doi.org/10.2139/ssrn.3167906. 251 FSL 2015 (n 1) art 99, para 1. 252 See eg Snyder and Ni (n 41). 253 See Figueiredo (n 237) 2. 254 席静(Xi Jing) & 凌莉(Ling Li) and others, ‘我国出口食品安全监管模式浅析’ (‘Analysis about China Export Food Safety Supervision Model’), 检验检疫学刊 (2016) 26(1) J Inspection & Quarantine. 255 张春霞 (Zhang Chunxia), ‘现阶段我国食品出口贸易问题的思考’ (‘Thoughts on Food Export Trade in China at the Present Stage’), 科技与创新 (2017) 3 Science & Technology & Innovation. 256 徐立宇 (Xu Liyu), ‘出口食品检验监管模式的探索与改革’ ‘Exploration and Reform on the Mode of Export Food’s Inspection and Supervision’), 中国检验检疫 (2017) 1 China Inspection & Quarantine 19; 罗公平(Luo Gongping) etc, ‘实施5 + 1监管模式: 保障出口食品农产品质量安全’ (‘Implementing 5 +1 Supervision Mode: Ensure the Quality and Safety of Export Food and Agricultural Products’) 中国检验检疫 (2013) 4 China Inspection & Quarantine; 王凤平 (Wang Fengping) & 蔡水狮(Cai Shuishi) and others, ‘ “111” ’ 检验监管模式在晋江休闲食品出口产业集群发展中的应用’ (‘Application of “111” Model of Inspection and Supervision in Jinjiang (Fujian Province) Exporting Leisure Food Industrial Cluster Development) [2015] Agrifood Engineering 57; 王铁龙 (Wang Tielong) & 石小亮 (Shi Xiaoliang) and others,’ 出口食品安全采信第三方监管模式研究’ (‘A Research on Admitted Third Party Mode for Export Food Safety Regulation’), 经济体制改革 (2017) 1 Reform of Economic System. 257 See Guanqi Zhou, The Regulatory Regime for Food Safety in China: Governance and Segmentation (Palgrave Macmillan 2017). 258 Arthur PJ Moi, ‘Governing China’s Food Quality through Transparency: A Review’ (2014) 43 Food Control 49. 259 For this information, we draw on current research at the Centre for Research on Transnational Law, Peking University School of Transnational Law. We are especially grateful to Wang Jiayi and Zhu Dianmeng for their help. 260 See WTO, Members and Observers <https://www.wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm> accessed 8 May 2018. 261 On Hong Kong, for example, see Mainland and Hong Kong Closer Economic Partnership Arrangement (CEPA), Annex 2 Rules of Origin for Trade in Goods <https://www.tid.gov.hk/english/cepa/legaltext/files/consolidated_CEPA_annex2.pdf> and the tables of Goods entitled to CEPA Zero Tariff Preference: Mainland 2017 Tariff Codes, Product Description and Rules of Origin (Updated on 29 November 2017) <https://www.tid.gov.hk/english/cepa/tradegoods/files/mainland_2017.pdf> both accessed 8 May 2018. 262 中华人民共和国消费者权益保护法 (Law of the People’s Republic of China on Protection of Consumer Rights and Interests) (adopted at the Fourth Meeting of the Standing Committee of the Eighth National People’s Congress on 31 October 1993), English translation available at National People’s Congress <http://www.npc.gov.cn/npc/lfzt/xfzqybhfxza/2013-04/19/content_1792346.htm> accessed 5 December 2017. 263 FSL 2015 (n 1) art 23. 264 Ibid art 28(1). 265 Ibid art 28(2). 266 On consumers’ evaluation on food safety supervision and management and suggested improvements, see赵静 (Zhao Jing) and 张应语 (Zhang Yingyu), 《食品安全法》 视角下对我国食品安全监管及风险交流的审视 (‘Food Safety Supervision and Risk Communication from the Perspective of the Food Safety Law’) (2017) 1 China Legal Science 116. 267 See FSL 2015 (n 1) arts 67–73. 268 Ibid art 67. 269 Ibid art 67, para 2. 270 Ibid art 68. 271 Ibid art 69. 272 Ibid art 62. 273 Ibid art 140; compare FSL 2009 (n 1) art 94. 274 中华人民共和国广告法 (Advertising Law of the People’s Republic of China) (adopted at the Standing Committee of the eighth National People’s Congress on 27 October 1994, revised 24 April 2015). English translation available at <https://www.hfgip.com/sites/default/files/law/advertising_law_16.02.2016.pdf> accessed 5 May 2018. 275 Notably the Consumer Protection Law (n 262); the Product Quality Law, adopted at the thirtieth Meeting of the Standing Committee of the seventh National People’s Congress on 22 February 1993 and amended on 8 July 2000 and 27 August 2009; and the Tort Law of the People’s Republic of China <http://www.wipo.int/edocs/lexdocs/laws/en/cn/cn136en.pdf> accessed 13 December 2015. 276 See FSL 2015 (n 1) art 148; compare FSL 2009 (n 1) art 96. 277 A consumer may seek compensation worth ten times the price of the food even if the consumer knew that the food did not conform to food safety standards. ‘When a seller sells food that [it] knows does not conform to safety standards, the consumer can claim, at the same time, [both] compensation for losses and [additional] damages ten times the price [of the food], or claim damages ten times the price [of the food] alone.’ 《孙银山诉南京欧尚超市有限公司江宁店买卖合同纠纷案》 (SUN Yinshan v Nanjing Auchan Hypermarket Company Co Ltd, Jiangning Store, A Sale and Purchase Contract Dispute), Guiding Case no 23 (discussed and passed by the Adjudication Committee of the Supreme People’s Court, released on 26 January 2014) <https://cgc.law.stanford.edu/wp-content/uploads/sites/2/2015/10/GC23-English.pdf> accessed 8 August 2017. 278 颜志强 (Yan Zhiqiang) ‘食品安全法中的惩罚性赔偿制度研究: 以新修 《食品安全法》 第148条为切入点’ (‘A Study on Punitive Damages: Article 148 of the Food Safety Law (2015 Revision)’ (2016) 8 J Hubei University Economics (Humanities & Social Sciences) 98. 279 张羽君 (Zhang Yujun), ‘论 《食品安全法》 惩罚性赔偿金制度的适用’ (‘The Application of Punitive Damages in the Food Safety Law’) (2016) 2 J Hunan Agricultural University (Social Sciences) 67. 280 Keller and Heckerman LLP, ‘China Passes Sweeping Amendment to Food Safety Law: The Most Stringent to Date’ (28 April 2015) <https://www.khlaw.com/China-Passes-Sweeping-Amendment-to-Food-Safety-Law-The-Most-Stringent-To-Date> accessed 16 October 2017. 281 GAIN, ‘China, People’s Republic of: Food Safety Law Draft for Comment (Compared with the 2009 Food Safety Law), GAIN Report no 13064 (8 November 2013) art 65<https://gain.fas.usda.gov/Recent%20GAIN%20Publications/Food%20Safety%20Law%20Draft%20for%20Comment%20_Beijing_China%20-%20Peoples%20Republic%20of_11-8-2013.pdf> accessed 5 December 2017. 282 FSL 2015 (n 1) art 63. 283 Ibid art 65. 284 Ibid art 67. 285 Ibid art 71. 286 Ministry of Environmental Protection and Ministry of Land and Resources, Nationwide Soil Pollution Investigation Report (17 April 2014) (in Chinese), quoted in Li and Wu (n 10), 207. 287 An, ‘Chinese Lawmakers Sift Through New Law on Soil Pollution’ XinhuaNet (22 June 2017) <http://news.xinhuanet.com/english/2017-06/22/c_136386261.htm> accessed 28 November 2017. 288 ‘P.R.C. Law on Preventing and Controlling Soil Pollution (Draft)’ China Law Translate <https://www.chinalawtranslate.com/> accessed 28 November 2017. 289 Ibid, art 36 <https://www.chinalawtranslate.com/> accessed 28 November 2017. 290 Philip C Jessup, Transnational Law (Yale University Press 1956) 2. 291 Terence C Halliday and Gregory Shaffer (eds), Transnational Legal Orders (CUP 2015). 292 Hans Kelsen, ‘The Concept of Legal Order’ (‘Der Begriff der Rechtsordnung’), translated by Stanley L Paulson, <https://watermark.silverchair.com/ajj-27-64.pdf?> accessed 7 April 2018. 293 On ‘settling’ and concordance, see Halliday and Shaffer (n 291) 3 at 43–6. 294 Francis Snyder, Hu Zhouke and Ni Lili, ‘Transnational Law in the Pacific Century: Mapping Pesticide Regulation in China’ in Peer Zumbansen (ed), Jessup’s Bold Proposal: Engagements with ‘Transnational Law’ after Sixty Years (CUP 2018) (forthcoming). 295 On China’s food trade strategy, including bilateral agreements, see Snyder and Ni (n 41). On administrative cooperation, see Memorandum of Understanding on Administrative Cooperation Arrangements between DG SANCO and AQSIQ, Document 5.7, and Arrangement between DG SANCO and AQSIQ on Joint Prevention of Illegal Action for Import and Export of Food, Document 5.13, reprinted in Francis Snyder (ed), The European Union and China, 1949-2008: Basic Documents and Commentary (Hart Publishing 2009) 814–18, 831–3, respectively; USFDA, Agreement between the Department of Health and Human Services of the United States of America and the General Administration of Quality Supervision, Inspection, and Quarantine of the People’s Republic of China on the Safety of Food and Feed <http://www.fda.gov/InternationalPrograms/Agreements/MemorandaofUnderstanding/ucm107557.htm> accessed 17 February 2014; renewed 11 December 2012 <http://www.fda.gov/food/newsevents/constituentupdates/ucm331518.htm> accessed 20 February 2014; USFDA, FDA’s Activities Related to China, Statement of Steven M Solomon, DVM, MPH, Associate Director for Global Operations and Policy, Office of Regulatory Operations and Policy, Food and Drug Administration, Department of Health and Human Services, Before the Congressional–Executive Commission on China, 22 May 2013 <http://www.fda.gov/newsevents/testimony/ucm353577.htm> accessed 17 February 2014 . 296 Adriana Pavesi Arisseto-Bragotto, Maria Manuela Camino Feltes and Jane Mara Block, ‘Food Quality and Safety Progress in the Brazilian Food and Beverage Industry: Chemical Hazards’ (2017) 1(2) Food Quality & Safety 117. © The Author(s) (2018). 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TI - China’s 2015 Food Safety Law: Crossing the River but Feeling the Stones and Avoiding Low Branches?
JF - The Chinese Journal of Comparative Law
DO - 10.1093/cjcl/cxy004
DA - 2018-06-23
UR - https://www.deepdyve.com/lp/oxford-university-press/china-s-2015-food-safety-law-crossing-the-river-but-feeling-the-stones-1CxbdKjYW0
SP - 1
EP - 49
VL - Advance Article
IS - 1
DP - DeepDyve
ER -