The New Interpretation was introduced to keep up with the amendments made to the Food Safety Law of the People's Republic of China ("Food Safety Law") and other food safety-related laws and regulations, provide further guidance on food safety issues and respond to social concerns on recent food safety-related events. In particular, the New Interpretation is in line with the Opinions of the Central Committee of the Communist Party of China and the State Council on Deepening the Reform to Strengthen Food Safety released in 2019, which provides for the "4-S Requirements" for food safety regulation, namely applying the most stringent standards, the strictest supervision, the most severe punishment and the most serious accountability requirement. 

Compared with the 2013 Interpretation, the New Interpretation provides for heavier penalties for criminal cases endangering food safety. In order to facilitate the enforcement procedure, the New Interpretation provides a more comprehensive legal base by specifying the relevant charges stipulated in the Criminal Law of the People's Republic of China ("Criminal Law"). Significantly, the New Interpretation impacts the entire food industry as it regulates the production, sales, transport and storage of food, as well as the safety of food packaging materials, containers, detergents, disinfectants or tools or equipment for food production/trading, etc.

For further information or a discussion of what the New Interpretation may mean to you, please get in touch with the Baker McKenzie team.

In more detail

The New Interpretation has a total of 26 articles. We have set out the major provisions below:

Contamination of food 

The Food Safety Law expressly prohibits the production of and trading of food and related products that have been contaminated by the packaging materials, containers or means of transport. The New Interpretation helpfully provides further details and penalties guidance on this.

Article 12 of the New Interpretation provides that where food packaging materials, containers, detergents, disinfectants or tools or equipment for food production/trading that do not meet food safety standards were used during food production, sales, transportation and storage, and results in contamination of the food, the offender will be convicted and punished in accordance with Articles 143 (Crime of producing and selling food that does not meet safety standards) and 144 (Crime of producing and selling toxic and harmful food) of the Criminal Law.

Expired/recycled food

The New Interpretation increases the penalties for the production and sale of expired/recycled food and food made with expired/recycled ingredients, which is expressly prohibited by the Food Safety Law and the Regulation on the Implementation of the Food Safety Law.

Article 15 of the New Interpretation provides that the offender will be convicted and punished in accordance with Article 140 (Crime of producing and selling counterfeit or inferior products) of the Criminal Law. If the case also involves the production and sale of food products that do not meet safety standards, the offender will be convicted and punished based on the charge that carries a heavier penalty.

Clarification of the "Crime of producing and selling toxic and harmful food"

There has been a long-standing debate regarding the definition of certain elements of the "Crime of producing and selling toxic and harmful food" stipulated in Article 144 of the Criminal Law.

The New Interpretation provides further and clearer guidance as to what constitutes "toxic and harmful non-food raw materials" and lists the factors for determining whether a person "knowingly" sells food mixed with toxic and harmful non-food raw materials.

Injection of water or other substances during livestock and poultry slaughtering

Another food safety issue is the lack of a legal basis and a standardized penalties guideline for tackling the problem of injection of water and other substances during livestock and poultry slaughtering. This is a complicated issue because the substances injected may be detrimental to the health of the consumers.

In view of this, Article 17 of the New Interpretation specifies the applicable criminal charges under different circumstances:

• Where toxic and harmful non-food raw materials are used during livestock and poultry slaughtering, the offender will be convicted and punished in accordance with Article 144 (Crime of producing and selling toxic and harmful food) of the Criminal Law.
• Where water or other substances are injected into the livestock or poultry sufficient to cause serious food poisoning incidents or other serious food-borne diseases, the offender will be convicted and punished in accordance with Article 143 (Crime of producing and selling food that does not meet safety standards) of the Criminal Law.
• Where no serious food poisoning incidents or other serious food-borne diseases have been caused but the conditions stipulated in Article 140 of the Criminal Law are fulfilled, the offender will be convicted and punished in accordance with Article 140 (Crime of producing and selling fake or inferior products) of the Criminal Law accordingly.

Food safety for minors and the elderly

Apart from clarifying the application of law in food safety cases, the New Interpretation also expands the scope of protection to minors and elderly people, as they are more vulnerable to food safety issues.

For instance, the New Interpretation adds the provisions that the production and sale of: (1) food that is noncompliant with the food safety standards (Article 3(4)), and (2) toxic or harmful food (Article 7(4)), shall be deemed "other serious circumstances" specified in the Criminal Law if the production and sale proceeds are between RMB 100,000 to RMB 200,000 and the food is being sold to "minors and the elderly at primary and secondary school campuses, kindergartens, elderly care institutions and surrounding areas".

Health food fraud 

In recent years, the elderly are often lured into buying healthy food or dietary supplements at a very high price by way of fraud. As such, Article 19 of the New Interpretation clearly stipulates that a person who unlawfully obtains property by way of fraud through selling healthy food or other food will be convicted and punished in accordance with Article 266 (Fraud) of the Criminal Law. If the case also involves the production and sale of counterfeit and inferior products, the offender will be convicted and punished based on the charge that carries a heavier penalty.

Addition of prohibited drugs to pesticides, veterinary medicines and feeds

Adding prohibited drugs to pesticides, veterinary drugs, and feeds is a very common practice in the industry in China. While this may not endanger food safety directly, the quality and safety of agricultural products would be seriously threatened.

In order to bring the upstream food supply chain under regulatory control as well, Article 16 of the New Interpretation provides the legal basis for convicting and punishing such acts in accordance with Article 225 (Crime of illegal business operation) of the Criminal Law.