Food Safety Law in China
President
Professor Jiuyong shi (Former President of the International Court of Justice)
Members
José Enrique alvarez, Herbert and Rose Rubin (Professor of International Law, New York University Law School, u.s.a.) An chen (Professor of International Economic Law at Xiamen University) Bin cheng (Professor Emeritus of Air Law at University of London) Chia-Jui cheng (Professor of International Law at Soochow University School of Law; Visiting Professor of International Law, Faculty of Law, Xiamen University) José Angelo Estrella faria (Secretary-General, unidroit, Rome) Herbert kronke (Dean, Faculty of Law, University of Heidelberg, Germany) Yixin liao (Professor of Law, Xiamen University) Vaughan lowe (Chichele Professor of Public International Law at Oxford University) Andreas F. lowenfeld (Professor of International Law at New York University) H.E. Hisashi owada (Judge at the International Court of Justice, Former President of International Court of Justice) Malcolm N. shaw, Sir Robert Jennings (Professor of International Law at University of Leicester) Nicolas Jan schrijver (Professor of Public International Law at Leiden University) Renaud sorieul (Secretary, uncitral, Vienna) H. E. A.A. cancado trindade (Judge and Former President of the International- American Court of Human Rights) H.E. Wilfrido V. villacorta (Ambassador to the asean, the Republic of Philippines; Former Deputy Secretary – General of asean) Huaqun zeng (Director, Institute of International Law, Xiamen University) Chongshi zhu (President, Xiamen University)
Secretary-General
Chia-Jui cheng (Professor of International Law at Soochow University School of Law; Visiting Professor of International Law, Faculty of Law, Xiamen University)
The titles published in this series are listed at brill.com/ccxa
Making Transnational Law
VOLUME 6 2015
By
Francis Snyder
LEIDEN | BOSTON
Names: Snyder, Francis G., author. Title: Food safety law in China : making transnational law / By Francis Snyder. Description: Boston : Brill Nijhoff, 2015. | Series: Collected courses of the Xiamen Academy of International Law ; 6 | Includes bibliographical references and index. Identifiers: LCCN 2015038106| ISBN 9789004301054 (hardback : alk. paper) | ISBN 9789004306929 (e-book) Subjects: LCSH: Food law and legislation--China. | International law--China. Classification: LCC KNQ3377 .S69 2015 | DDC 344.5104/232--dc23 LC record available at http://lccn.loc.gov/2015038106
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Contents
Acknowledgments XIII List of Tables and Figures XXI List of Abbreviations XXIII Biographical Note XXIX Selected Publications XXX
1 Introduction 1
2 Three Worlds of Melamine 9 Introduction 9 Purpose and Scope 9 Some Words about Method 11 Organisation and Argument 13 The First World of Melamine 16 Introduction 16 Multinational Companies, wto Accession and Joint Ventures 17 International Trade, Competition for Markets and Anti-Dumping 30 Illegal Trade and the Rise of Foreign Risk Regulation 36 The Second World of Melamine 40 Introduction 40 The Rise of Sanlu 41 The Sanlu Model 45 The Race to the Bottom 51 Melamine in Baby Formula 55 The Third World of Melamine 60 Introduction 60 The Party-State 61 Bureaucratic Networks 65 Administrative Organisation of Food Safety Regulation 74 Food Safety Regulation of Melamine in Practice 78 Intervention of Central Party-State Authorities 86 Conclusion 99
3 Emergence of Modern Chinese Food Safety Law 108 Introduction 108 Ensuring the Quality of Dairy Products 111 The Need to Protect Public Health and Reassure the Public 111 The qsdp Regulation 115 The ppfm Measures 119 Restructuring the Dairy Sector 121 Dairy Farmers 121 Milk Collection Stations 125 Processors and Manufacturers 126 Sanlu Bankruptcy 127 Unexpected Consequences 130 Law, Sanctions and Managed Justice 134 Party and Government 134 High-Profile Criminal Cases 138 Criminal Prosecution of Middlemen and Milk Producers 146 Civil Suits by Victims for Compensation 147 Administrative Compensation 150 Managed Justice 152 Toward a National Food Safety Law 155 Background 155 The 1995 Food Hygiene Law 157 The 2009 Food Safety Law 162 The 2009 State Council Implementing Regulation 173 Conclusion 175
4 Transnationalisation of Chinese Dairy Standards 180 Introduction 180 The Normative Framework for Standards before Melamine 181 wto sps and tbt Agreements 181 Historical Background of Standards in China 186 The 1988 Standardization Law 188 The 1990 Standardization Law Implementing Regulations 192 The 2001 Measures for the Administration of Adoption of International Standards 195 The 2002 Notice on International Standards 200
Regulatory Reforms after Melamine 202 Food Safety Standards on the Eve of 2009 202 The 2009 Food Safety Law and Standards 202 The 2009 Food Safety Law Implementing Regulation 208 The 2010 Administrative Measures for National Food Safety Standards 209 Politics of Dairy Standards 211 Two Dilemmas 211 Small Workshops, Standards and Factions 212 International Dairy Federation (idf) in China 217 New Standards for Dairy Products 222 Precursors 222 Adoption of New Dairy Standards 224 Protein, Bacteria and Compromise 229 Melamine Standards and Transnational Relations 232 Conclusion 239
5 Transnational Sites of Food Safety Regulation 241 Introduction 241 Food and Agriculture Organisation (fao) 243 World Health Organisation (who) 245 Structure 245 Relations 246 International Food Safety Authorities Network (infosan) 252 Structure 252 Relations 254 World Trade Organisation (wto) 257 Structure 257 Relations 262 Other Bodies 267 Introduction 267 Codex Alimentarius Commission (cac) 268 Structure 268 Relations 273 World Organisation for Animal Health (oie) 274 International Plant Protection Convention (ippc) 275 International Organisation for Standardisation (iso) 275 Conclusion 276
6 Globalisation of National Food Safety Standards through wto Consultations 278 Introduction 278 The Cases 281 Classification 281 Pre-Importation Production and Treatment Methods 283 Import Bans – Procedures 292 Import Bans – Health and Quality Standards 301 Post-Importation Testing and Inspection 306 Shelf-Life 308 Discussion 313 Introduction 313 Number and Categories of Cases 313 Participants 313 Mode of Settlement 317 Winners and Losers 324 Conclusion 327
7 International Food Safety Standards in wto Case Law 334 Introduction 334 Legal Bases for Cross-References 336 Introduction 336 Vienna Convention on the Law of Treaties (vclt) 336 Agreement on Sanitary and Phytosanitary Measures (sps Agreement) 338 Agreement on Technical Barriers to Trade (tbt Agreement) 340 Cases on Basic Concepts 344 Introduction 344 Australia – Salmon 344 EC – Hormones 349 Japan – Agricultural Products 356 Cases on More Complex Questions 358 EC – Sardines 358 Japan – Apples 362 EC – Biotech Products 366 Australia – Apples 371 United States – Country of Origin Labelling (cool) 378 United States – Clove Cigarettes 380 India – Agricultural Products 384 Conclusion 389
8 Multilateral Monitoring of Chinese Food Safety Law 394 Introduction 394 Multilateral Monitoring within the wto 397 China’s wto Rights and Obligations 397 The Transitional Review Mechanism (trm) 399 The Trade Policy Review Mechanism (tprm) 402 wto tprm Reviews of China’s Food Safety Regime 403 The tprm and Food Safety Regulation in China 403 The 2006 Trade Policy Review 404 The 2008 Trade Policy Review 411 The 2010 Trade Policy Review 422 The 2012 Trade Policy Review 438 The 2014 Trade Policy Review 449 Discussion 467 tprm as an Institution 467 Questions and Questioners 468 Subject Matter 471 Conclusion 474
9 Conclusion 477
Appendix 1: Table of Treaties, Agreements and Related Documents 497 Appendix 2: Table of Constitutions and Statutes of International Organisations 501 Appendix 3: Table of Legislation and Regulations 502 Appendix 4: Table of Standards 517 Appendix 5: Table of Cases 519 Bibliography 523 Author Index 574 Subject Index 575
Acknowledgments
Writing a book is like cooking. Both are creative activities, individual and col- lective, uniting mind and hand, and requiring imagination and experimenta- tion as well as retracing some well-worn channels. Both are processes involving structure and agency, embracing actors of many kinds in a complex chain from production to consumption. Both are framed (usually) by rules, formal and informal, whether articulated clearly, grasped intuitively or working below the level of consciousness. Both are often unpredictable: we learn so much about the activity by practising and transforming its ingredients, resulting in unfore- seen consequences and in a creation that is old and new, raw and cooked. Despite the best intentions of its chef or author, no dish, or no book, is ever perfect: its creator, while savouring the final product, knows that there is much room for improvement. The many parallels between writing and cooking have often been in my mind during the writing of this book. This book is a study of cooking law. It is a study of the making of transna- tional food safety law in China. Preparing food safety law in China has been a long process, of which this book traces only a recent part. Modern Chinese food safety law, as with food safety law elsewhere, was the fruit of food safety crisis. The melamine baby formula scandal of 2008 draw widespread public attention, concentrated minds and energy and stimulated Chinese govern- ment activity concerning food safety as never before. The great institutional and normative activity which ensued, as the melamine crisis itself revealed, occurred in the context of economic and legal globalisation. Global legal plu- ralism and China together provided the ingredients, the stimulus, the norma- tive repertoire and the craft knowledge for the making of the China’s first Food Safety Law in 2009, as well as for the continuing adaptation and improvement of Chinese food safety law and the system of food safety regulation in China today. As part of the search for the best ways to guarantee safe food, the process of cooking food safety law in China is not finished. Indeed, it cannot be, by definition, in China or elsewhere, because of the constant changes in food technology, in the production, distribution and consumption of food and in the ways in which the culture of food is embedded in society. In this continu- ing process, the Chinese spirit of experimentation and adaptation should be in its element, transposing inherent features of the great Chinese culinary tradi- tion to the realm of law-making and the protection of public health. My reflections on the food economy, the internationalisation of agriculture and food safety regulation began many years ago. Let me begin therefore by thanking all who contributed to my research on these questions in West Africa
Administrative Region of Macau, with support of the European Union; Jean Monnet Seminar Series, Faculty of Law and Institute for Advanced Legal Studies, University of Macau; Visiting Speaker Seminar Series, University of Macau, sponsored by the European Union Academic Programme in Macau, the Univer sity of Macau and the Institute of European Studies of Macau (ieem); and the European Union Studies Association Asia Pacific Conference, University of Macau, sponsored by the European Union Lifelong Learning Programme and the Asia Pacific Association of European Studies; and the International Forum on Development Strategies and Ecological Issues in Northwest China, Northwest Agricultural and Forestry University (nwafu), Yangling, Shaanxi, China. I am grateful for helpful comments on these occasions. For reading specific chapters, I wish to express my sincere gratitude to Professors Ray Campbell, Douglas Levene, Jin Zining, two anonymous review- ers and the editor of the Journal of Integrative Agriculture and the editors of the Peking University Transnational Law Review. I am most grateful to my colleages at Peking University School of Transnational Law for comments and discus- sion of Chapters 1 and 2 at our Faculty Scholarship Seminar. Zhou Zhaoke and Li Yi, successive Editors-in-Chief of Peking University Transnational Law, pro- vided invaluable help. I also thank Professors Simon Roberts, Elisa Baroncelli and Giorgio Monti and Dr Gudrun Wacker for further helpful comments. On behalf of the Peking University School of Transnational Law Food Safety Law Research Project Group, I wish to thank the organisers of the 9th International Workshop of Young Scholars, held in November 2012 at Peking University School of Transnational Law, Peking University Shenzhen Graduate School, for including a Roundtable based on the Project and for comments and discus- sion on that occasion. I am grateful to Professor Shu Geng for proving that the topic of food safety regulation in China remains of continuing interest. A very early version of part of Chapter 6 was published as ‘Exporting Food Safety Standards: The Hidden Jurisprudence of the wto’, in Inge Govaere and Dominik Hanf (eds), Scrutinizing International and External Dimensions of the Internal Market/Les dimensions internes et externes du droit européen à l’épreuve: Liber Amicorum for Rector Paul Demaret, Volume ii (Peter Lang Publishers, Brussels, 2013), pp. 779–799; a later, much longer version was pub- lished as ‘We Need a Global Food Safety Agency: Reflections on the Hidden Jurisprudence of the wto’, Peking University Transnational Law Review, 1, 2, 2013, pp. 162–209. A short version of Chapter 8 was published as ‘No country is an island in regulating food safety: How the wto Trade Policy Review Mechanism (TPRM) monitors Chinese food safety law’, Journal of Integrative Agriculture (formerly Agricultural Sciences in China) [an Official Publication of the Chinese Academy of Agricultural Sciences, CASS], Special Issue on ‘Food Safety in
China: Science, Economics and Policy’, October 2015, Doi: 10.1016/S2095- 3119(15)61111-X. An updated, longer version was published as ‘Multilateral Monitoring of Food Safety Law in China: The wto Trade Policy Review Mechanism (tprm), 2006–2014’, Peking University Transnational Law Review, 2, 1, 2014, pp. 321–410. I am grateful to the following publishers and other copyright holders for permission to use material in which they hold copyright:
• Chinese Academy of Agricultural Sciences (caas) for permission to include in Chapter 8 material from my article ‘No country is an island in regulating food safety: How the wto Trade Policy Review Mechanism (tprm) monitors Chinese food safety law’, which is in the Food Safety Special Issue of the Journal of Integrative Agriculture (official publication of the caas), Vol. 14, 2015; • Edward Elgar Publishing, for permission to quote from Michael Webber, Making Capitalism in Rural China (Edward Elgar Publishing, Cheltenham, 2012; • Elsevier Ltd., for permission to quote from: Food Policy, 35, 5, 2010, Changbai Xin and K.K. Klein, ‘Melamine in Milk Products in China: Examining the Factors that Led to Deliberate Use of the Contaminant’, pp. 463–470; • Elsevier Ltd., for permission to quote from: Food Policy, 36, 32, June 2011, Xiaofang Pei, Annuradha Tandon, Anton Alldrick, Liana Giogi, Wei Huang and Ruijia Yang, ‘The China Melamine Milk Scandal and Its Implications for Food Safety Regulation’, pp. 412–420. • Hague Academy of International Law, for permission to use material from Francis Snyder, ‘Report of the Director of Studies: Toward an International Law for Adequate Food’, in Ahmed Mahiou and Francis Snyder (eds), La Securite alimentaire/Food Security and Food Safety (Martinus Nijhoff Publishers, Leiden/Boston, 2006), pp. 79–163; • Penguin Books, HarperCollins Publishers and Richard McGregor, for per- mission to quote from THE PARTY: THE SECRET WORLD OF CHINA’S COMMUNIST RULERS by RICHARD MCGREGOR. Copyright (c) 2010 by Richard McGregor. Reprinted by permission of HarperCollins Publishers; • Peter Lang Publishers, for permission to incorporate into Chapter 6 material from my article ‘Exporting Food Safety Standards: The Hidden Jurisprudence of the wto’, in Inge Govaere and Dominik Hanf (eds), Scrutinizing International and External Dimensions of the Internal Market/Les dimensions internes et externes du droit européen à l’épreuve: Liber Amicorum for Rector Paul Demaret, Volume ii (Peter Lang Publishers, Brussels, 2013), pp. 779–799; • lap Lambert Academic Publishing, for permission to use material from Jing Li, Policy Coordination in China: The Cases of Infectious Disease and Food Safety Policy (lap Lambert Academic Publishing, Hong Kong, 2012);
• Lexxicon for permission to use material from Pinghui Xiao, ‘China’s Food Standardization System, Its Reform and Remaining Challenges’, European Journal of Risk Regulation, 4, 2012, 507–520; • Dr Jing Li, for permission to use material from her PhD thesis on ‘Policy Coordination in China: The Cases of Infectious Disease and Food Safety Policy’ submitted to the University of Hong Kong in 2010, and from her book: Policy Coordination in China: The Cases of Infectious Disease and Food Safety Policy (lap Lambert Academic Publishing, Hong Kong, 2012); • Peking University School of Transnational Law and Peking University Transnational Law Review, for permission to include in Chapter 6 material from my article ‘We Need a Global Food Safety Agency: Reflections on the Hidden Jurisprudence of the wto’, Peking University Transnational Law Review, 1, 2, 2013, pp. 162–209; • Peking University School of Transnational Law and Peking University Transnational Law Review, for permission to include in Chapter 8 material from my article ‘Multilateral Monitoring of Food Safety Law in China: The wto Trade Policy Review Mechanism (tprm), 2006–2014’, Peking University Transnational Law Review, 2, 1, 2014, pp. 321–410 • University of California Press, for permission to quote from Franz Schur mann, Ideology and Organization in Communist China (University of California Press, Berkeley, 2nd edition 1971 [originally published in 1966] • University of California Press, for permission to quote from Kenneth G. Lieberthal and David Lampton (eds), Bureaucracy, Politics and Decision- Making in Post-Mao China (University of California Press, Berkeley, 1992); • Professor Michael Webber, for permission to quote from his book Making Capitalism in Rural China (Edward Elgar Publishing, Cheltenham, 2012; • who Press for the World Health Organization, for permission to reprint 13 lines (about 130 words) from a wto report on from a infosan work with the Chinese Ministry of Health and the who Country Office in China after the 2008 melamine infant formula crisis, reproduced from http://www.who. int/foodsafety/fs_management/inforsan-events/en/index4.html and http:// www.health.govt.bt/newslatters/infosan.pdf; • World Trade Organization, for permission to quote from wto panel reports and Appellate Body reports and from documents concerning the Trade Policy Review Mechanism. All quotations are drawn from material available on the wto website www.wto.org; • Professor Zheng Yongnian, for permission to quote from his book The Chinese Communist Party as Organizational Emperor: Culture, Reproduction and Transformation (Routledge, London, 2010).
I wish to thank Lu Yi for her help, hard work and many discussions about food safety law in China during the preparation of my suggestions as lead foreign export for reform of the 2009 Food Safety Law of the People’s Republic of China. I am also grateful for her cooperation and knowledge in teaching our joint course on Food Safety Law and Policy at Peking University School of Transnational Law, Peking University Shenzhen Graduate School. I also thank the superb administrative staff at STL for their constant interest and support. For their love, interest in food, encouragement and moral support, I wish to thank my son Jasper, my daughter-in-law Julie and my grandson Keevie for bringing me so much joy before, during and after the writing of this book. I am also grateful to my brother Stephen and my sister-in-law Ellen for their support. Most of all, I am pleased to thank Anne-Lise Strahtmann. Her contributions to this book are beyond counting. Without her love and support, this book would never have been undertaken and certainly it would never have been completed. I shall never be able to repay my enormous debt to her, which I happily acknowledge. As a modest but sincere token of my thanks, I dedicate this book to her. I am pleased that it has been possible to include the book in the Collected Courses of the Xiamen Academy of International Law. I wish to thank Professor Chia Jui-Cheng, Secretary-General of the Xiamen Academy, and Ingeborg van der Laan and Ester Lels at Brill Publishers for their help, support and coopera- tive spirit. I remain responsible for all errors and other shortcomings of the book. Comments and suggestions for improvement may be sent to me at fgsnyder@ gmail.com. The book aims to take account of the law up to 1 September 2014, though some later developments have been taken into account so far as possible.
Tables
2.1 Milk production in China, 2002–2010 52 2.2 Capacity and volume of domestic melamine production in China, 2001–2010 (in 10,000 tonnes) 56 2.3 Participants at State Council executive meeting on the melamine crisis, 17 September 2008 92 4.1 Codes, content and formulating bodies for food standards before 2009 203 4.2 Members of the Chinese idf national committee 219 6.1 Cases on pre-importation production and treatment methods 284 6.2 Cases on import bans – procedures 293 6.3 Cases on import bans based on health and quality standards 302 6.4 Cases on post-importation testing and inspection measures 307 6.5 Cases on the shelf-life of products 308 6.6 Income classification of complainants and respondents in food safety cases considered here 315 6.7 Income classification of complainants and respondents in all wto cases 316 6.8 Comparison of food safety cases considered here and total wto cases accord- ing to income classification of complainants and respondents 317 6.9 Procedural outcome of cases on food safety 318 6.10 Mode of settlement by income category of parties 323 6.11 Complainants, respondents and winners in food safety cases 325 7.1 wto cases involving international food safety standards 390 8.1 2006: wto members asking questions about food safety and the subject matter of the questions (in order of page number in the tprb reports) 410 8.2 2006 China trade policy review: wto members asking questions about food safety, number of questions and main concerns 411 8.3 2008 review of China’s trade policy: wto members asking questions about food safety and the subject matter of the questions (in order of page number in the tprb report) 416 8.4 2008: China trade policy review: wto members asking questions about food safety, the number of questions and the main concerns 420 8.5 Registration of Geographical Indications (gis) in China, 1994–2009 425 8.6 2010 review of China’s trade policy: wto members asking questions about food safety and subject matter of the questions (in order of page number in the tprb report) 426
8.7 2010 China trade policy review: wto members asking questions and number of questions 434 8.8 Evolution of Chinese standards, 2006–2010 440 8.9 2012 China trade policy review: wto members asking questions and subject matter of questions (in order of page number in the Record of the Meeting) 442 8.10 2012 China trade policy review: wto members asking questions, number of questions and main concerns 444 8.11 Laws and regulations related to China’s sps regime 451 8.12 Institutions in charge of the sps system in China 453 8.13 2014 review of China’s trade policy: wto members asking questions about food safety and subject matter of the questions (in order of page number in the tprb report) 456 8.14 2014: wto members asking questions about food safety, number of questions and main concerns in 2014 China trade policy review 463 8.15 Evolution of questions about food safety in reviews of China’s trade policy, 2006–2014 468 8.16 Main subjects of questions in reviews of China’s trade policy, 2006–2014 472
Figures
2.1 The Sanlu Model of the Chinese dairy industry 47 2.2 Food safety regulatory authorities, Shijiazhuang City, 2008 77 3.1 Meta-policy and policy contexts of the 2009 Food Safety Law 110
CiCLOPs Duke Law Center for International and Comparative Law Occasional Papers cifst Chinese Institute of Food Science and Technology cit Dalian Century International Trading Company Ltd. cis Center for Comparative and International Study cl Criminal Law cnampg China National Agricultural Means of Production Group cnas China National Accreditation Service cnca China National Certification and Accreditation Administration cnccc China National Chemical Construction Corp cnooc China National Offshore Oil Corporation cnoocc China National Offshore Oil Corp. Chemical Ltd cnpc China National Petroleum Corporation cool Country of Origin Labelling cop Conference of the Parties CoRePer Committee of Permanent Representatives cpa Communist Party of China cpc The Communist Party of China cpd Central Propaganda Department cplc Central Political and Legal Commission cyl Communist Youth League dfc Dairy Farmers of Canada ds sanco Directorate-General for Health and Food Safety, European Commission dsb wto Dispute Settlement Body dsm wto Dispute Settlement Mechanism dsu Understanding on Rules and Procedures Governing the Settlement of Disputes, World Trade Organisation ebwa European Bottled Watercooler Association (Europe) ec European Community ecpr European Consortium for Political Research efbw European Federation of Bottled Waters efma European Fertilisers’ Manufacturers Association ehs Environment, Health and Safety eu European Union fao Food and Agriculture Organisation, United Nations fcc Forensic Chemistry Centre fctc Framework Convention on Tobacco Control fda Food and Drug Administration fdi Foreign Direct Investment
Francis SNYDER was educated at Yale University (B.A. Hons., Political Science); Sciences-Po Paris (Fulbright Scholar); Université de Paris i (Panthéon- Sorbonne) (Certificat de droit et économie des pays d’Afrique; Doctorat (Droit comparé); Habilitation à diriger des recherches (droit), Aix Marseille Université. Currently he is C.V. Starr Professor of Law, eu Jean Monnet Chair Professor ad personam and Director, Centre for Research on Transnational Law, Peking University School of Transnational Law (pkustl), Peking University Shenzhen Graduate School, China. He is also Special Endowed Chair Professor of Food Safety at Northwest Agricultural and Forestry University (nwafu), Yangling, Shaanxi, China, and Research Director on Food Policy and Law of the Sino-US Joint Research Centre for Food Safety. He is Visiting Professor at the College of Europe (Bruges) and Institute of European Studies of Macau (ieem) and Adjunct Professor, Faculty of Law, University of Macau. He is Founder and a Director of the Pearl River Delta Academy of International Trade and Investment Law (praia). He has been a Fellow of the Institute for Advanced Study (Wissenschaftskolleg), Berlin. He is Emeritus Professor of Public Law, ceric, Aix Marseille Université. He is a member of the Bar of Massachusetts. usa. The Republic of France in 1988 awarded him the honour of Officier de l’Ordre des Palmes Académiques. Previously he taught at London School of Economics; European University Institute, Florence; University College London; University of Warwick; Osgoode Hall Law School and Division of Social Science, York University, Toronto; and was a Fellow, Programme in Law and Modernization, Yale Law School. He has held visiting professorships at numerous universities in Europe, North America and Asia. He is the founder and from 1995–2013 Editor-in-Chief of the European Law Journal and served as Co-Director, Academy of European Law, Florence (1997–2000) and Director of Research, Hague Academy of International Law Centre for Studies and Research (2003). He serves on the editorial board or advisory board of numerous academic journals. He is a member of the Foreign Experts Advisory Committee (feac), State Administration of Foreign Experts Affairs (safea), People’s Republic of China, and was chief foreign expert on reform of the Chinese 2009 Food Safety Law. He has also served as consultant to various international organisations, gov- ernments, law firms and companies in the fields of eu agricultural law, eu international trade and customs law and wto law.
(a) Monographs
1. Snyder, Francis, Food Safety Law in China: Making Transnational Law, published in Collected Courses of the Xiamen Academy of International Law (E.J. Brill Publishers, Leiden, 2016). 2. Snyder, Francis, The eu, the wto and China: Legal Pluralism and International Trade Regulation (Hart Publishing, Oxford, Series: China and International Economic Law’, 2010, 651 pp.). 3. Snyder, Francis. International Trade and Customs Law of the European Union (Butterworths Law Publishers, London, Series: ‘Commercial Laws of Europe’, 1998), lxi + 650 pp., reprinted Tollet Publishers Ltd, Dublin and Sussex, 2007. 4. Snyder, Francis. Introduction to the Law of the European Union [in Chinese; translation by Song Ying] (Peking University Press, Beijing, 1996), 185 pp. 5. Snyder, Francis. Common Agricultural Policy of the European Economic Community (Butterworths, London, 1990; reprinted from: 1(2) Halsbury’s Laws of England (4th edition, republished 1990), 207 pp. 6. Snyder, Francis. Law of the Common Agricultural Policy (Sweet & Maxwell, ‘Modern Legal Studies’ Series, London, 1985), xxxiv + 181 pp.; translated into French (1987) and Italian (1990). 7. Snyder, Francis. Capitalism and Legal Change: An African Transformation (Academic Press, New York, Series: ‘Studies in Law and Social Control’, 1981), xiv + 344 pp. 8. Snyder, Francis (with the collaboration of M.-A. SAVANE). Law and Population in Senegal: A Survey of Legislation (Afrika-Studiecentrum, Leiden, 1977), v + 242 pp. 9. Snyder, Francis. One-Party Government in Mali (Yale University Press, New Haven, 1965), xi + 178 pp.
(b) Edited Books and Special Issues
1. Snyder, Francis (editor and sole contributor), The European Union and China, 1949–2008; Basic Documents and Commentary (Hart Publishing, Oxford, February 2009), xxiv + 1103 pp.; trans. into Chinese: 欧洲联盟与中 国 (1949–2008): 基本文件与评注 [平装] (2013). 2. Snyder, Francis (ed), The European Union, India and China: Strategic Partners in a Changing World / L’Union européenne, l’Inde et la Chine: Parténaries stratégiques dans un monde en mutation (5th International
Workshop for Young Scholars (wish) / 5ème Rencontre international des Jeunes Chercheurs (rijc) (Bruylant, Brussels, 2008), 288 pp. 3. Snyder, Francis (ed), International Food Security and Global Legal Pluralism / La sécurité alimentaire et le pluralisme juridique global (2ème Rencontre internationale des Jeunes Chercheurs rijc / 2nd International Workshop for Young Scholars wish) (Bruylant, Brussels, 2004), 234 pp. 4. Snyder, Francis (ed), Regional and Global Regulation of International Trade (Hart Publishing, Oxford, 2002), xx + 304 pp. 5. Snyder, Francis (ed), The Europeanisation of Law: The Legal Effects of European Integration (Hart Publishing, Oxford, 2000), xxi + 348 pp. 6. Snyder, Francis (ed), Constitutional Dimensions of European Economic Integration (Kluwer, Dordrecht, 1996), ix + 375 pp. 7. Snyder, Francis (ed), European Community Law, two volumes (Dartmouth Publishing Company, Aldershot, ‘International Library of Essays in Law and Legal Theory’ Series, 1993), Volume i, xxvi + 477 pp., Volume ii, xxviii + 460 pp.
(c) Jointly Edited Books and Special Issues
1. Snyder, Francis and Lu, Yi (eds), The Future of Transnational Law : eu, usa, China and the brics / Le futur du droit transnational : ue, usa, Chine et les brics (Brussels, Bruylant, 2014), 528 pp. 2. Mahiou, Ahmed and Snyder, Francis (eds), La Sécurité alimentaire / Food Security and Food Safety (E.J. Brill for the Hague Academy of International Law, Leiden, 2006), 933 pp. 3. Bourrinet, Jacques and Snyder, Francis (eds), La Sécurité alimentaire dans l’Union européenne (Bruylant, Brussels, 2003), 189 pp. 4. Snyder, Francis and Hay, Douglas (eds), Labour, Law and Crime: An Historical Perspective (Tavistock, Londres, 1987), x + 309 pp. 5. Ghai, Yash, Luckham, Robin and Snyder, Francis (eds), The Political Economy of Law (Oxford University Press, Delhi, 1987), xvi + 821 pp. 6. Snyder, Francis and Slinn, Peter (eds), The International Law of Development: Comparative Perspectives (Butterworths Law Publishers, London, 1987), ix + 322 pp.
(d) Contributions to Edited Volumes
1. Snyder, Francis, ‘The Contribution of Anthropology to Teaching Comparative and International Law’, in The Trials and Triumphs of Teaching Legal Anthropology (eds. Marie-Claire Foblets, Gordon
Woodman and Anthony Bradney) (Ashgate Publishing Company, Farnham, Surrey, 2015, in press). 2. Snyder, Francis, ‘Common Agricultural Policy’, in Oxford Handbook of the European Union (eds. Eric Jones, Anand Menon and Stephen Weatherill) (Oxford University Press, Oxford, 2012), pp. 484–495. 3. Snyder, Francis, ‘emu – Integration and Differentiation: Metaphor for the European Union’, in The Evolution of eu Law (eds. Paul Craig and Grainne de Burca) (Oxford University Press, Oxford, 2nd edition 2011), pp. 687–716. 4. Snyder, Francis, ‘“Worrying about Europe”: Chinese Law and the Changing Context of eu Legal Scholarship’, in H. Koch, , K. Hagel-Sorensen, U Haltern et J.H.H. Weiler (eds), EUROPE: The New Legal Realism – Essays in Honour of Hjalte Rasmussen (Copenhagen, diøf-Publishing, 2010), pp. 661–677. 5. Snyder, Francis, ‘Creusets de la communauté doctrinale de l’Union euro- péenne: Regards sur les revues francaises de droit européen’, in Doctrine et droit de l’Union européenne (ed. Fabrice Picod) (Bruylant, Brussels, 2009), pp. 35–89. 6. Snyder, Francis, ‘Soft Law and Governance: Structure and Process in the European Union Experience’, in LUO Haocai (ed), The Challenge of Soft Law (Beijing, Peking University Press, 2009) (in Chinese). 7. Snyder, Francis, ‘Economic Globalisation and the Law in the 21st Century’, in The Blackwell Companion to Law and Society (ed. Austin Sarat) (Blackwell Publishing, New York and Oxford, 2004), pp. 624–640. 8. Snyder, Francis, ‘Governing Globalization’, in Transnational Legal Processes: Globalisation and Power Disparities (ed. Michael Likosky) (Butterworths LexisNexis, ‘Law in Context’ Series, London, 2002), pp. 65–97. 9. Snyder, Francis, ‘Europeanisation and Globalisation as Friends and Rivals: European Union Law and Global Economic Networks’, in The Europe anisation of Law: Legal Effects of European Integration (ed. F. Snyder) (Hart Publishing, Oxford, 2000, pp. 293–320. 10. Snyder, Francis, ‘emu Revisited: Are We Making a Constitution? What Constitution Are We Making? in The Evolution of eu Law (eds. Paul Craig and Grainne de Burca) (Oxford University Press, Oxford, 1999), pp. 417–473. 11. Snyder, Francis, ‘General Course on European Community Law: Consti tutional Law of the European Union: Principles, Processes and Culture’, in Collected Courses of the Academy of European Law 1995, Volume vi, no. 1 (ed. Academy of European Law) (Kluwer, Deventer, 1998), pp. 41–155. 12. Snyder, Francis, ‘Legal Aspects of Relations between the European Union and China: Preliminary Reflections’, in European Union External Relations
Law after the Uruguay Round (ed. David O’Keeffe and Nicholas Emiliou) (Chancery, London, 1996), pp. 363–377. 13. Snyder, Francis, ‘The Use of Legal Acts in ec Agricultural Policy’, in Sources and Categories of European Union Law: A Comparative and Reform Perspective (ed. Gerd Winter), Nomos, Baden-Baden, 1996, pp. 348–384. 14. Snyder, Francis, ‘Interinstitutional Agreements: Form and Constitutional Limitations’, in Sources and Categories of European Union Law: A Comparative and Reform Perspective (ed. Gerd Winter), Nomos, Baden- Baden, 1996, pp. 453–466. 15. Snyder, Francis, ‘Out on the Weekend: Reflections on European Union Law in Context’, in Frontiers of Legal Knowledge (ed. G.P. Wilson) (Chancery, London, 1995) pp. 120–142. 16. Snyder, Francis, ‘European Community Law and International Economic Relations: The Saga of Thai Manioc’, in Essays in Honour of WANG Tieya (ed. Ronald St. J. Macdonald) (Nijhoff, Dordrecht, 1994), pp. 753–769. 17. Snyder, Francis, ‘emu – Metaphor for European Union? Institutions, Rules and Types of Regulation’, in Europe after Maastricht: An Ever Closer Union? (ed. Renaud Dehousse) (Law Books in Europe, München, 1994), pp. 63–99. 18. Snyder, Francis, ‘Soft Law and Institutional Practice in the European Community’, in The Construction of Europe: Essays in Honour of Emile noel (ed. Stephen D. Martin) (Kluwer, Deventer, 1994), pp. 197–225. 19. Snyder, Francis, ‘The Common Agricultural Policy in the Single European Market’, in Collected Courses of the Academy of European Law 1991, Volume i Book 1 (Nijhoff, Dordrecht, 1992), pp. 303–336. 20. Snyder, Francis, ‘Thinking about “Interests”: Legislative Process in the European Community’, in History and Power in the Study of Law (ed. June Starr and Jane Collier) (Cornell University Press, Ithaca, 1989), pp. 168–198. 21. Snyder, Francis (with Douglas Hay), ‘Comparisons in the Social History of Law: Labour and Crime’, in Labour, Law and Crime: An Historical Perspective (ed. Francis G. Snyder and Douglas Hay), Tavistock, London, 1987), pp. 1–41. 22. Snyder, Francis, ‘The European Community’s New Food Aid Legislation: Towards a Development Policy?’ in The International Law of Development: Comparative Perspectives (ed. Francis G. Snyder and Peter Slinn) (Professional Books [now Butterworths], Abingdon, 1987), pp. 271–304. 23. Snyder, Francis, ‘Land Law and the Transition to Capitalism: Natural History of a Senegalese Case Study’, in Law and Social Enquiry: Case Studies of Research (ed. R. Luckham) (International Center for Law in
Development, New York, and Scandinavian Institute of African Studies, Uppsala, 1981), pp. 76–109. 24. Snyder, Francis, ‘Colonialism and Legal Form: The Creation of “Customary Law” in Senegal’, in Crime, Justice and Underdevelopment (ed. Colin Sumner) (Heinemann, London, 1982), pp. 90–121. 25. Snyder, Francis, ‘Land Law and Economic Change in Rural Senegal: Diola Pledge Transactions and Disputes’, in Social Anthropology and Law [Association of Social Anthropologists Monograph No. 14] (ed. Ian Hamnett) (Academic Press, London, 1977), pp. 113–157.
(e) Articles
1. Snyder, Francis, ‘Multilateral Monitoring of Food Safety Law in China: The wto Trade Policy Review Mechanism (tprm), 2006–2014’, Peking University Transnational Law Review, 2, 1, 2014, pp. 321–410. 2. Snyder, Francis, ‘No Country is an Island in Regulating Food Safety: How the wto Monitors Chinese Food Safety Law through the Trade Policy Review Mechanism (tprm)’, Journal of Integrative Agriculture [Official Journal of the Chinese Academy of Agricultural Sciences], Special Issue on ‘Food Safety’, 4, 2015, DOI: 10.1016/S2095-3119(15)61111-X. 3. Snyder, Francis (chief author), Lu,Yi and Yazdani, Gulrez, ‘Traditional Chinese Medicine and European Union Law: Cultural Logics, Product Identities, Market Competition, Legal Rechanneling and the Need for Global Legal and Medical Pluralism’, Peking University Law Journal, 2, 1, 2014, pp. 129–200. 4. Snyder, Francis, ‘We Need a Global Food Safety Agency: Reflections on the Hidden Jurisprudence of the wto’, Peking University Transnational Law Review, 1, 2, 2013, pp. 162–209. 5. Snyder, Francis, ‘China, Regional Trade Agreements and wto Law’, Journal of World Trade, 43, 1, 2009, pp. 1–57. 6. Snyder, Francis, ‘The Gatekeepers : The European Courts and wto Law’, Common Market Law Review, 40, 2003, pp. 313–367. 7. Snyder, Francis, ‘The Origins of the “Nonmarket Economy”: Ideas, Pluralism and Power in ec Antidumping Law about China’, European Law Journal, 7, 4, 2001, pp. 369–424. 8. Snyder, Francis, ‘Governing Economic Globalisation: European Union Law and Global Economic Networks’, European Law Journal, 5, 4, December 1999, pp. 334–374. 9. Snyder, Francis, ‘The Effectiveness of European Community Law: Institutions, Processes, Tools and Techniques’, Modern Law Review, 56, 1, January 1993, 19–54.
10. Snyder, Francis (with Renaud Dehousse, Christian Joerges and Giandomenico Majone, and with the collaboration of Michelle Everson), ‘Europe after 1992: New Regulatory Strategies’, eui Working Paper LAW no. 92/31 (October 1992), 80 pp. 11. Snyder, Francis, ‘European Community Law and Third World Food Entitlements’, German Yearbook of International Law, 32, 1989, pp. 87–110. 12. Snyder, Francis, ‘Ideologies of Competition in European Community Law’, Modern Law Review, 52, 2, March 1989, pp. 149–178. 13. Snyder, Francis, ‘L’agriculture et l’industrie dans le droit de la cee’, Droit et Société, 5, 1, 1987, pp. 23–52. 14. Snyder, Francis, ‘Anthropology, Dispute Processes and Law: A Critical Introduction’, British Journal of Law and Society [now Journal of Law and Society], 8, 2, 1981, pp. 141–180, reprinted in several collections. 15. Snyder, Francis, ‘The Failure of “Law and Development”’, Wisconsin Law Review, 3, 1982, pp. 373–396. 16. Snyder, Francis, ‘Labour Power and Legal Transformation in Senegal’, Review of African Political Economy, 21, 1981, pp. 26–43. 17. Snyder, Francis, ‘Colonialism and Legal Form: The Creation of “Customary Law” in Senegal’, Journal of Legal Pluralism, 19, 1981, pp. 49–90. 18. Snyder, Francis, ‘Law and Development in the Light of Dependency Theory’, Law and Society Review, 14, 3, 1980 (Special Issue on ‘Contemporary Issues in Law and Social Science’), pp. 723–804. 19. Snyder, Francis, ‘Legal Innovation and Social Change in a Peasant Community: A Senegalese Village Police’, Africa [Journal of the International African Institute, London], 48, 3, 1978, pp. 231–247. 20. Snyder, Francis, ‘Health Policy and the Law in Senegal’, Social Science and Medicine, 8, 1974, pp. 11–28. 21. Snyder, Francis, ‘Bibliographie sur les Diola de la Casamance (Sénégal)’, Bulletin de l’Institut Fondamental d’Afrique Noire, 34, B, 2, 1972, pp. 393–413. 22. Snyder, Francis, ‘The Political Thought of Modibo Keita’, Journal of Modern African Studies, 5, 1, 1967, pp; 79–106. A more complete list of pub- lications may be found at www.francis-snyder.com.
chapter 1 Introduction
道生之，德畜之，物形之，勢成之。是以萬物莫不尊道而貴德。道之尊， 德之貴，夫莫之命常自然。故道生之，德畜之；長之育之；亭之毒之； 養之覆之。生而不有，為而不恃，長而不宰，是謂玄德。
(The operation (of the Dao) in nourishing things)
All things are produced by the Dao, and nourished by its outflowing oper- ation. They receive their forms according to the nature of each, and are completed according to the circumstances of their condition. Therefore all things without exception honour the Dao, and exalt its outflowing operation.
This honouring of the Dao and exalting of its operation is not the result of any ordination, but always a spontaneous tribute.
Thus it is that the Dao produces (all things), nourishes them, brings them to their full growth, nurses them, completes them, matures them, main- tains them, and overspreads them.
It produces them and makes no claim to the possession of them; it carries them through their processes and does not vaunt its ability in doing so; it brings them to maturity and exercises no control over them; − this is called its mysterious operation.1
1 Chinese Text Project, Dao De Jing [Spring and Autumn (772 bc – 476 bc), English Translation: James Legge, Chapter 51, Copyright © Chinese Text Project, available at http://ctext.org/dao -de-jing, last accessed Spring Festival, 19 February 2015. Using a slightly different English translation, Ames and Hall comment on this Chapter as follows: ‘The world emerges as a collaboration between foci and their fields, between particular events and their contexts, between one’s effective character and one’s way in the world, between de and dao. It is only with the complexity of a contextualizing situation that particular events take shape and assume their productive functions. Thus, within this process, respect is extended to both the energy of insistent particularity and the environments that conduce to its consummation….: Roger T. Ames and David L. Hall (translators and commentators), Dao De Jing ‘Making This Life Significant’: A Philosophical Translation (Ballantine Books, New York, 2003), p. 157.
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Food safety regulation in China is a subject of worldwide concern. China’s size, population, production, economic dynamism and international trade mean that regulation of food safety in China affects not only 1.4 billion peo- ple in China but also consumers all over the world. During the past decade, however, China has witnessed a number of serious food safety incidents and scandals. These scandals concern only a small proportion of China’s food products, but nevertheless they have resulted in a serious loss of public trust in Chinese food products in China and elsewhere. They reinforce widespread concerns that, scandal or not, much of the food produced in China does not meet adequate standards for food safety. This book aims to contribute to our understanding about the reasons for these concerns, the recent rapid devel- opment of Chinese food safety regulation and how to meet the challenges of the future. The book is a study of the making of transnational food safety law in China. It traces many concerns about food safety in China back to the 2008 melamine crisis. This event was not the only food scandal in China in the last decade; nor was it the only such scandal which became known throughout the world. The melamine crisis, however, was emblematic. A serious attack on public health, it represented a meeting point of different sets of international, national and local social relations. It focused widespread public attention on questions which previously had received little public or governmental attention, such as: Is my food safe to eat? How do I know? What does ‘safe’ mean’? What are food safety standards? Who makes them? How are they enforced, if at all? Where do international standards come from? Which local standards are globalised? Can and should all countries in the world follow the same standards? If not, what about trade? The melamine scandal in China provoked anger and crystallised feelings of a lack of trust, not only in food safety regulation but in government more generally. It led to substantial reforms in Chinese government policies, laws and relations between China and international organisations. It was a major cause, though not the only cause, of the transnationalisation of Chinese food safety law. The transnationalisation of food safety law in China was (and is) a continu- ing process, not a fixed state of affairs. This book draws inspiration from Philip Jessup’s famous Storrs lectures at Yale Law School, in which he defined ‘trans- national law’ as ‘all law which regulates actions or events that transcend national frontiers’.2 Jessup delivered his lectures in 1957, however, and since then globalisation, the establishment of the World Trade Organization and the
2 Philip Jessup, Transnational Law (Yale University Press, New Haven, 1956), p. 136.
3 This sentence is drawn from Francis Snyder and Yi Lu, ‘The Future of Transnational Law: Competing Institutions, Conflicting Narratives, and Legal Pluralism’, in Francis Snyder and Yi Lu (eds), The Future of Transnational Law: eu, usa, China and the brics/L’avenir du droit trans- national: ue, usa, Chine et les brics (Bruylant, Groupe Larcier, Brussels, 2015), pp. 1–22 at 1. 4 Harold Hongju Koh, ‘Why Do Nations Obey International Law?’, Yale Law School Faculty Scholarship Series, Paper 2101, available at http://digitalcommons.law.yale.edu?fss_papes/ 2101, published in Yale Law Journal, 106, 1996–1997, pp. 2599–2659. 5 See for example Francis Snyder, ‘Economic Globalisation and the Law in the 21st Century’, in The Blackwell Companion to Law and Society (ed. Austin Sarat) (Blackwell Publishing, New York and Oxford, 2004), pp. 624–640; Francis Snyder, The eu, the wto and China: Legal Pluralism and International Trade Regulation (Hart Publishing, Oxford, 2010); Paul Schiff Berman, Global Legal Pluralism: A Jurisprudence of Law Across Borders (Cambridge University Press, Cambridge, 2014); Craig Scott, ‘“Transnational Law” as Proto-Concept’, German Law Journal, 10, 7, 2009, pp. 859–876; Gralf-Peter Calliess and Peer Zumbansen, Rough Consensus and Running Code: A Theory of Transnational Private Law (Hart Publishing, Oxford, 2012). 6 Gralf-Peter Calliess and Peer Zumbansen, Rough Consensus and Running Code: A Theory of Transnational Private Law (Hart Publishing, Oxford, 2012), p. xvi. 7 Francis Snyder, The eu, the wto and China: Legal Pluralism and International Trade Regulation [hereafter Snyder, Legal Pluralism] (Hart Publishing, Oxford, 2010), p. 13. 8 On craft knowledge, see Joseph Bensman and Robert Lilienfeld, Craft and Consciousness: Occupational Technique and the Development of World Images (Aldine de Gruyter, New York, 1991).
9 For more detailed discussion, see Snyder, Legal Pluralism, supra note 7. 10 James N. Rosenau, ‘Toward an Ontology for Global Governance’, in Approaches to Global Governance Theory (sous la direction de Martin Hewson et Timothy J. Sinclair) (Albany, State University of New York Press, 1999), pp. 287–301 à la p. 295.
The theory of sites of governance thus differs from standard versions of pub- lic international law in several ways. It is not founded primarily on an idea of the state or a conception of national sovereignty. Its actors comprise not only public organisations but also private bodies, provided that they satisfy the minimal definition of ‘site of governance’. It distinguishes different ways in which sites of governance can be created, namely by polities or by markets. It posits an intimate connection between the structural dimension and the rela- tional dimension of a site. Finally, it gives as much emphasis, if not more, to the relational dimension than to the structural dimension. It is an integral part of my conception of global legal pluralism, which holds that ‘globalisation is gov- erned by the totality of strategically determined, situationally specific and often episodic conjunctions of a multiplicity of sites throughout the world’.11 Within this framework, the book makes three principal arguments. First, modern food safety law in China, as in many other countries, was born from a food safety crisis. Second, the crisis resulted in partial transnationalisation of Chinese rules and institutions concerned with food safety regulation. Third, the process of transnationalisation involved an increasing engagement with multilateral sites of governance, in particular international standards-setting bodies and the World Trade Organisation (wto) and their transnational cul- tural frame or normative repertoire.12 The book is divided into seven main chapters. Chapter 1, following this brief introduction, presents an extended case study of the melamine crisis. Taking a broad view, it identifies three worlds of melamine: the world of multinational companies and international competition; the world of domestic economy, industrial structure, and society; and the world of government, law and regula- tion. It shows how the intersection of these three worlds resulted in the melamine crisis, leading to the demise of one of China’s leading producers of dairy products and resulting in new, unexpected challenges concerning food safety regulation for the Chinese party-state. The response, as the crisis, was shaped decisively by the main features of China’s domestic governmental institutions, namely administrative fragmen- tation and a system of dual rule involving the role of the Communist Party of China (cpc) and tensions between vertical and horizontal relations, all set within the overarching objective of the preservation of social stability. Chapters 2 and 3 show how the melamine crisis contributed directly to reshaping the
11 Snyder, Legal Pluralism, supra note 7 p. 32. 12 On a roughly similar example of the diffusion of an international normative repertoire, see ibid, Chapter 6, ‘Global Legal Pluralism and the Creation of New Legal Concepts: The Concept of “Non-market Economy” in ec Anti-dumping Law’, pp. 209–264.
In transnational food safety regulation today, the World Trade Organisation (wto) dispute settlement system is crucially important as a site for the inter- section of national and international food safety standards. Using the wto Agreements on Sanitary and Phytosanitary Measures (sps Agreement) and on Technical Barriers to Trade (tbt Agreement), it decides disputes on conflicts between national food safety standards and determines the relevance and role of international standards in national food safety regulation. Chapters 5, 6 and 7 consider the role of the wto in the globalisation of national food safety stan- dards, the use of international food safety standards in wto dispute settle- ment and the reviews so far of Chinese food safety regulation in the wto Trade Policy Review Mechanism (tprm). Together with the Conclusion, they also make recommendations concerning food safety regulation in China. Chapter 5 focuses on the consultation phase of wto dispute settlement. It considers the ‘hidden jurisprudence’ of wto food safety law: cases concerning pre-importation and treatment methods, procedures on import bans, import bans based on health and quality standards, testing and inspection and shelf- life. It shows that most cases ended at the consultation phase of the wto dis- pute settlement process, the complainant always won and the winner was of equal or higher income category than the respondent except when the dispute went to a panel. Food safety is treated as simply another trade issue, and com- plainants can use the wto dispute settlement mechanism to export and even impose their national standards and practices. The chapter argues that China should pay special attention to the wto consultation phase and also develop a proactive, conscious strategy about the use of wto law and wto institutions as part of its normal food safety policy. Chapter 6 analyses high-profile wto food safety cases involving cross-refer- ences to international food safety standards. The chapter aims to understand what role international food safety standards play in wto case law. It assesses the ways in which, in judging disputes, wto institutions use international standards produced by international standards-setting bodies. The chapter argues that wto law on food safety is couched in terms of the law of interna- tional trade. It also argues that, nonetheless, wto law on food safety is part and parcel of transnational food safety regulation, in which norms, institutions and dispute settlement processes from different sites of governance are intimately connected. The chapter may provide useful guidelines about relations between international food safety standards and national food safety standards. Chapter 7 then places food safety regulation in China squarely within the context of the wto and debates about the relationship between national and international standards, otherwise known as alignment. Every two years, China’s trade policy, including relevant food safety measures, is scrutinised by
Introduction
Purpose and Scope Food safety law often grows out of food safety crisis. Food safety crises fre- quently lead to law reform; sometimes, they even result in improvements in the protection of public health. Both happened in China as a result of the melamine crisis. In China, melamine (sān jù qíng àn, 三聚氰胺) was added to infant formula1 in the first decade of this century in order to increase protein content to meet raw milk testing standards, thus giving a false impression that the product was acceptable for consumers. The result caused severe health problems in 46 countries, including China, where about 300,000 children became ill and six infants died. It provoked substantial reforms in Chinese food safety policy and law. The melamine crisis was a watershed in China in the development of food safety law and standards, public attitudes and expec- tations about food safety, and the role of government in confronting food safety problems. Its many-faceted legacy remains a constant presence in daily life in China today. This chapter and the following two chapters analyse the melamine crisis and its implications for the development of Chinese law on food safety. ‘[M]elamine is…integral to the material life of any industrialized society’.2 It is a chemical3 that is frequently used in industrial products, such as tableware, plastics and fire-retardant fabrics, and more widely in industry for processing timber such as wood-based panels, making paper, adhesives, electrical and pharmaceutical products, and laminates used in high-resistant concrete and reinforced flooring, among many other uses. Produced by the distillation of urea or as a byproduct of synthesis gas production, melamine typically takes
1 On the history, components and manufacture of infant formula, see Wikipedia, ‘Infant for- mula’, http://en.-wikipedia.org/wiki/Infant_formula#History, last accessed 28 January 2014. 2 James E. McWilliams, ‘China, America and melamine’, The New York Times, Opinion, Thursday 16 October 2008, available at http://www.nytimes.com/2008/11/16/opinion/16iht -edmcwilliams.1.17862064.html, accessed 23 March 2012. The author is Professor of Agricultural History at Texas State University – San Marcos. 3 Its formal name is 1,3,4-Triazine-2,4,6-triamine. It is also known as 2,4,6-Triamino-s-triazine, cyanurotrimide, cyanurotriamine or cyanuramide. See the Wikipedia entry on ‘Melamine’, at http:/en.wikipedia.org/wiki/-Melamine, accessed 17 November 2011.
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4 See Anthony Kai-ching Hau, Tze Hoi Kwan and Philip Kam-tao Li, ‘Melamine toxicity and the Kidney’, Journal of the American Society of Nephrology,20, 2, February 2009, 245–250, available online at http://jasn.-asnjournals.org/content/20/2/245.full, last accessed 27 January 2014. 5 Melamine itself is not very toxic but together with cyanuric acid, a component of urine, it can form an insoluble complex, leading to kidney failure: Yuan Liu, Ewen E.D. Todd, Qiang Zhang, Jiang-rong Shi and Xian-jin Liu, ‘Recent developments in the detection of melamine’, Journal of Zhejiang University Science B (Biomedicine and Biotechnology), 13, 7, July 2012, pp. 525–532, at 525. See also Wikipedia, ‘Cyanuric Acid’, available at http://en.wikipedia.org/wiki/ Cyanuric_acid, last accessed 29 Janary 2015. 6 See Wang Hongying, ‘Linking Up with the International Track’, The China Quarterly, 189, March 2007.
Some Words about Method Some words about method are useful at the outset, because the discussion differs in several important respects from previous studies of the melamine crisis, even those relatively few which take account of law and legal institutions.7 The chap- ter adopts what may be called a semi-anthropological approach: ‘anthropologi- cal’ because it tries to understand the melamine crisis from the perspective of the main actors, in particular that of the regulatory authorities; and ‘semi’ because it is based largely on documents, mostly available in English but some in Chinese, and limited interviews, rather than extensive fieldwork focused on the subject.8 The chapter takes the form of an extended case study.9 When confronted with a polycentric set of issues, such as food safety regulation, this has the great advantage of providing a larger time frame. We, meaning the reader and I, can then consider law as a process, occurring over a longer period of time. An extended case study also makes possible the use of a broader theoretical per- spective or framework. This provides a structure within which to study the interconnections between and sequencing of legislation, administrative action, judicial decisions and other legal processes. An extended case study thus enables us to understand law as a process, which occurs over a long period of time, in which multiple actors in specific domestic and international institu- tional settings are implicated, and which involves numerous aspects of the Chinese party-state. By means of this contextual method, we can best under- stand the ‘living law’ and its social meaning, including how international law, domestic law and transnational law are related, how they work in practice, and thus the relation between law on the books and law in action.
7 Full references are given later in the chapter. 8 On the distinctive features of anthropology of law (or legal anthropology), see Francis Snyder, ‘Anthropology, Dispute Processes and Law: A Critical Introduction’, British Journal of Law and Society [now Journal of Law and Society], 8, 2, 1981, pp. 141–180, reprinted in Peter Sack (ed), Law and Anthropology (Dartmouth Publishing Company, Aldershot, 1992), pp. 65–104, and in P.A. Thomas (ed), Legal Frontiers (Dartmouth, Aldershot, 1996), pp. 135–179; and Francis Snyder, ‘Building Bridges, Comparing Legal Cultures: Experiences of Anthropology of Law in Africa, the eu, the wto and China’, Keynote speech at the International Workshop on ‘Teaching Legal Anthropology: Aims and Constraints in a Changing Academic Climate in Europe’, Max Planck Institute for Social Anthropology, Halle/Saale, Germany, 27–28 November 2013. See also Sally Falk Moore (ed), Law and Anthropology: A Reader (Blackwell Publishing, Oxford, 2005). 9 On this method, see A.L. Epstein (ed), The Craft of Social Anthropology (Tavistock, London, 1967), especially the chapters by Max Gluckman, ‘Introduction’, xi–xx at xv–xvii; J. Van Velsen, ‘The Extended-case Method and Situational Analysis’, 129–149 at 141–149; and A.L. Epstein, ‘The Case Method in the Field of Law’, 205–230 at 223–230.
Previous studies of the melamine crisis have often focused solely on Chinese domestic events, and their accounts of the crisis and its legal or other implica- tions, are often limited to China alone. Such an approach neglects the effects of globalization, the international food economy and transnational food safety regulation. Yet these sets of transnational social, economic, cultural or legal rela- tions are frequently very significant in understanding the origins of food safety crises and in shaping their results. Consequently, the chapter sets the melamine crisis in the context of three discrete but overlapping semi-autonomous worlds or social fields.10 By ‘social field’, I mean nothing more than ‘the totality of co-existing facts that are conceived of as mutually interdependent’.11 A social field comprises a set of social relations, with its own dynamics, actors, struggles and stakes.12 The boundary of a social field may be negotiable and fluid. Nevertheless, a social field involves a relatively high degree of social interac- tion, a shared focus, a measure of coherence and some systematic character. I argue that the melamine crisis in China was the result of the conjunction of three semi-autonomous social fields and that the crisis stimulated the devel- opment of a transnational social field of food safety regulation in China. The ‘three worlds of melamine’ are, first, the world of multinational compa- nies and international competition; second, the world of the domestic indus- trial structure, economy and society; and third, the world of government, law and regulation. These ‘worlds’ are partly distinct, partly intersecting spheres or arenas of social action, including economic and legal processes. Together they constitute the context in which the Chinese melamine saga unfolded. This
10 See Sally Falk Moore, ‘Law and Social Change: The Semi-Autonomous Social Field as an Appropriate Subject of Study’, Law and Society Review, 7, 4, 1973, 719–746; reprinted in Sally Falk Moore, Law as Process: An Anthropological Approach (Routledge & Kegan Paul, London, 1978) (hereafter Moore, Law as Process). See also Pierre Bourdieu, Outline of a Theory of Practice, trans. R. Nice (Cambridge University Press, Cambridge, 1977), originally published as Esquisse d’une théorie de la pratique, précédée de trois études d’ethnologie Kabyle (Editions Droz, Geneva, 1972) (hereafter Bourdieu, Practice). 11 Kurt Lewin, Field Theory in Social Science: Selected Theoretical Papers (ed. Dorwin Cartwright) (Harper and Row, New York, 1951), p. 240 (hereafter Lewin, Field Theory). 12 The basic work is Pierre Bourdieu, ‘The Force of Law: Toward a Sociology of the Juridical Field’ (trans. R. Terdiman), Hastings Law Journal, 38, 1987, 814–854 (hereafter Bourdieu, ‘Law’). For an early application of Bourdieu’s theory to law, see David Trubek, Yves Dezalay, Ruth Buchanan and John Davis, ‘Global Restructuring and the Law: Studies of the Internationalization of Legal Fields’, Case Western Reserve Law Review, 44, 1994, 407–498. More recently, see Sarah Biddulph, Legal Reform and Administrative Detention Powers in China (Cambridge University Press, Cambridge, 2007) (hereafter Biddulph, Detention), especially 26–58.
Organisation and Argument The remainder of this chapter consists of three main parts. The first main part considers the first world of melamine: the world of multinational companies, international competition and foreign direct investment. It sketches the inter- national context in which the Chinese melamine crisis emerged and devel- oped. The most striking features of this context were the development of closer
13 See Snyder, Legal Pluralism, supra note 7. An earlier version of Chapter 3 of that book was first published as ‘Governing Economic Globalisation: Global Legal Pluralism and European Union Law’, European Law Journal, 5, 4, 1999, 334–374; a long extract of which is published under the same title in Sally Falk Moore (ed), Law and Anthropology: A Reader (Blackwell Publishing, Oxford, 2005), 313–329. 14 See for example Roger T. Ames and David L. Hall, Daodejing ‘Making This Life Significant’: A Philosophical Translation (Ballantine books, New York, 2003).; Lao Tzu, The Book of Tao and The, trans. Gu Zhengkun (Peking University Press, and China Translation and Publishing Corporation, Beijing, 2nd edition 2006); Stefan Stenudd, Tao Te Ching: The Taoism of Lao Tzu Explained (Arriba, Malmö, Sweden, 2011); Tao Te Ching: A Bilingual Edition trans. D.C. Lau, (Chinese University Press, Hong Kong, 1962, revised edition 1989). See also Richard E. Nisbett, The Geography of Thought: How Asians and Westerners Think Differently…and Why (Nicholas Brealey Publishing, London, 2005). Note also Lewin’s remark: ‘What is important in field theory is the way the analysis proceeds. Instead of picking out one or another isolated element within a situation, the importance of which cannot be judged without consideration of the situation as a whole, field theory finds it advantageous, as a rule, to start with a characterization of the situation as a whole. After this first approximation, the various aspects and parts of the situation undergo a more and more specific and detailed analysis. It is obvious that such a method is the best safe- guard against being misled by one or another element of the situation’. Lewin, supra note 11, p. 63.
15 Francis Snyder, New Directions in European Community Law (London, Weidenfeld and Nicolson [now Cambridge, Cambridge University Press], 1990), p. 72, which focuses on competing perspectives on the completion of the European internal market. 16 To borrow the terminology of Dr Randall Lutter, then Deputy Commissioner for Policy, us Food and Drug Administration, in Food and Drug Administration, News and Events, ‘Text Version of Randall Lutter, PhD Presentation: ‘Addressing Challenges of Economically- Motivated Adulteration’, available at http://www.fad.-gov/newsevents/meetingsconfer- encesworkshops/ucm163656.htm, last accessed 16 September 2013.
17 On the concept of normative repertoire, see Snyder, Legal Pluralism, supra note 7, pp. 209–264. On the transnational normative repertoire of food safety regulation, see Ahmed Mahiou and Francis Snyder (eds), La Sécurité alimentaire/Food Security and Food Safety (Martinus Nijhoff Publishers for The Hague Academy of International Law, Leiden and Boston, 2006) (hereafter Mahiou and Snyder, Food Safety). For a similar approach to competition law, see Qianlan Wu, Competition Laws, Globalization and Legal Pluralism: China’s Experience (Hart Publishing, Oxford, 2013).
The First World of Melamine
Introduction The first world of melamine consists of the social field of transnational mar- kets. It embraces multinational companies, trade and foreign investment, competition for foreign markets, and other aspects of international and trans- national social, economic and legal relations. It not only provided the interna- tional context of the Chinese melamine scandal; it also shaped the origins, evolution and outcome of the crisis. The present section briefly sketches this social field. It is concerned particularly with the interrelated product markets for petrochemicals, fertiliser and melamine, on the one hand, and the market for dairy products, on the other hand; these markets are usually separate and distinct, except to the extent that fertiliser is used to produce animal feed for dairy cattle or other milk-producing ruminants. The discussion gives special emphasis to the development of transnational economic relations which con- tributed, directly or indirectly, to the short-lived but disastrous convergence of these product markets. It considers three strands: first, the formation of joint ventures between Chinese domestic enterprises and multinational companies, particularly after China joined the wto; second, participation in international trade, increased market competition and the adoption by foreign countries of anti-dumping measures against Chinese companies; and, third, illegal trade and further foreign regulation. The following paragraphs argue that, starting in the early 2000s, the social relations in the first world of melamine had a direct impact on the other two worlds of melamine. With regard to the domestic Chinese market, this impact consisted, first, in serving as a transmission belt between world prices for vari- ous products and the domestic Chinese market for melamine; second, and in particular, in lowering domestic Chinese prices for melamine and thus poten- tially increasing domestic demand; and, third, in contributing to a convergence of the usually separate markets for fertilisers and dairy products, with oversup- ply of melamine on the former market being partially channeled to meet a growing demand for melamine on the latter market. With regard to the third world of melamine, that of social regulation, law and government, the first set of social relations presented new opportunities for the Chinese government, in
Multinational Companies, wto Accession and Joint Ventures An initial set of social relations in the first world of melamine involved multi- national companies. As of 2004, 70 of the more than 90 melamine producers in the world (78%) were located in China. However, China-based producers then accounted for only about 21% of world production. Most if not all Chinese melamine producers were small or medium-sized enterprises (smes). By 2006, their production of melamine was reported to be in ‘serious surplus’, relative to the absorption capacity of domestic and export markets.18 The underlying rea- son appeared to be a shift in the relative world prices of melamine and urea, its main competitor for use as fertilizer. In April 2007, an ‘industry update’ pub- lished by the Dutch multinational company dsm Melamine noted that between 2002 and 2007 there had been a rapid increase in the world market price of urea while melamine prices remained stable.19 Even though Chinese domestic production was reported to be increasing by 10% per year, produc- tion of melamine had become less profitable, and several joint ventures were reported to have been postponed.20 Actual or potential producers of melamine suffered, while advantages potentially accrued to purchasers. Leading multinational companies were largely responsible for establishing world prices for urea and melamine, and their investment and trade activities translated these prices to the Chinese domestic market. It is useful to describe one prominent example in detail. dsm Melamine was the world’s largest producer of melamine at the time, with about 25% of the world market as of the year 2000.21 Its encounters with the domestic Chinese market illustrate the developing Chinese government policy toward fdi, the multiple transnational economic and legal ties between Chinese companies and foreign multinationals, and their impact on the
18 Wang Ruilin, ‘Melamine Capacity is [sic] Serious Surplus’ [hereafter Wang, ‘Surplus’], China Chemical Reporter, 6 January 2006, available at http://goliath.ecnext.com/coms2/ gi_0199-5152838/Melamine-capacity-is-serious-surplus.html#abstract, accessed 23 March 2012. 19 The Idaho Observer, ‘Melamine: Another toxic industrial byproduct planted in the food chain’, available at http://proliberty.com/observer/20081104.htm, accessed 23 March 2012. 20 See Wang ‘Surplus’, supra note 18. 21 Anthony S. Travis, ‘Manufacture and the Uses of the Anilines’, in Zvi Rappoport (ed), The Chemistry of Anilines (John Wiley & Sons, Chichester, England, 2007), 715–782 at 771.
22 See the history of dsm up to 2005 at ‘dsm n.v. History’, http://www.fundinguniverse .com/company-histories/dsm-n-v-history/, last accessed 17 January 2014. 23 On scw, see Sichuan Chemical Group Ltd., ‘Brief introduction of scw’, available at http:// www.scwltd.-com/english/html/intro.html#, last accessed 25 January 2015; Sichuan Chemical Works Group Catalyst Plant, ‘About Us’, available at http://www.chchj.com/ doce/company/company.htm, last accessed 25 January 2015. As of January 2015, scw was still using dsm technology: BuyersGuideChem.de, ‘Sichuan Chemical Works Group’, available at ‘http://www.buyersguidechem.com/supplier_company/Sichuan_Chemical _Works_Group_-Ltd_31951806.html, last accessed 25 January 2015. 24 Stefan Sommer, ‘dsm in China: In Touch with Evolving Needs in the Specialty Chemicals Market’, in Gunter Festal, Andreas Kreimayer, Udo Oels and Maximillian von Zedwitz (eds), The Chemical and Pharmaceutical Industry in China: Opportunities and Threats for Foreign Companies (Springer Verlag, Berlin, 2010), 247–263 at 248–252. Mr Sommer was then President of dsm (China) Ltd. 25 On the creation of the China National Petroleum Corporation (cnpc) in 1988 and Sinopec in February 1983 as part of the process of marketization and institutional reform in the oil and petrochemical industy, see Peter Nolan, China and the Global Economy: National Champions, Industrial Policy and the Big Business Revolution [hereafter Nolan, National Champions] (Palgrave, Basingstoke, Hampshire, uk and New York, 2001), 49–56; and, ‘China Haohua Chemical Group Co. Ltd, History’, available at http://www.chinahaohua .com.cn/haohuaen/gywm/lsyg/A010104web_1.htm, last accessed 10 January 2014.
In 2001 dsm Stamicarbon licensed a urea plant as part of a joint venture on Hainan Island with China National Offshore Oil Corporation (中国海洋石油总 公司, zhōng guó hǎi yáng shí yóu zǒng gōng sī) (cnooc), a large state-owned enterprise which is one of China’s three main national oil companies.26 Hainan Island had since 1988 been a Special Economic Zone (sez), was endowed with oil and gas resources, and offered considerable attractions to foreign inves- tors.27 The urea plant was completed in early 2004, and dsm began joint ven- ture negotiations with cnooc to build a large melamine plant nearby.28 In July 2004 dsm Melamine signed a letter of intent with a cnooc subsidiary, China National Offshore Oil Corp. Chemical Ltd (cnoocc, or cnooc Chemical Ltd) to study the feasibility of building the new melamine plant.29 The two parties had different but complementary reasons for signing up to the project. On one side, it seems that dsm Melamine hoped to reduce the cost of its access to raw materials.30 On the other side, cnooc hoped to improve its position in access to markets for oil and chemicals relative to its main domestic competitors, Sinopec and Petrochina, a subsidiary of China’s largest oil company, China National Petroleum Corporation (cnpc) (中国石油天然气集团公司,
26 On the origins, structure and development of cnooc to the late 1980s, see Kenneth Lieberthal and Michel Oksenberg, Policy Making in China: Leaders, Structures, and Processes (Princeton University Press, Princeton ny, 1988), 123–128. At least during this early period, cnooc ‘functioned effectively as a state oil company for the Chinese’ (127). 27 See Gao Shangquan and Chi Fulin (eds), New Progress in China’s Special Economic Zones (Foreign Languages Press, Beijing, 1997), pp. 200–229. On sezs in general, see Jung-Dong Park, The Special Economic Zones of China and Their Impact on Its Economic Development (Praeger, Westport and London, 1997). David Zweig points out, however, that ‘zone fever’ resulting from the government policy of ‘segmented deregulation’ subsided once central government extended preferential investment policies to many other parts of the coun- try: David Zweig, Internationalizing China: Domestic Interests and Global Linkages (Cornell University Press, Ithaca and London, 2002. 28 Stefan Sommer, ‘dsm in China: In Touch with Evolving Needs in the Specialty Chemicals Market’, in Gunter Festal, Andreas Kreimayer, Udo Oels and Maximillian von Zedwitz (eds), The Chemical and Pharmaceutical Industry in China: Opportunities and Threats for Foreign Companies [hereafter Sommer, ‘dsm in China’] (Springer Verlag, Berlin, 2010), 247–263 at 255, 260. 29 dsm, ‘dsm Melamine and China National Offshore Oil Corp. Chemical Ltd. sign a letter of intent for building worldscale melamine plant in China, Heelien, Netherlands, 20 July 2004, 08:15 cet, available at http://www.dsm.com/en_US/cworld/public/media/ downloads/20e_04_melamine_china.pdf?fileaction=openFile, accessed 23 March 2012. 30 Bob De Wit and Ron Meyer (eds), Strategy: Process, Content, Context – An International Perspective (Cengage Learning Business Press, Stamford ct, 4th revised edition 2010), p. 734.
Zhōngguó Shíyóu Tiānránqì Jítuán Gōngsī).31 Each company had previously been accountable to a different hierarchical superior: cnooc to the Ministry of Petroleum and Industry (mpi) and Sinopec to the State Council; cnpc resulted from the restructuring of the mpi in 1988.32 Another factor affecting dsm’s fdi in China was China’s accession on 11 December 2001 to the World Trade Organization (wto). wto accession changed the conditions of competition in the Chinese markets for oil, chemicals and fertiliser. With regard to oil, cnooc lost its monopoly of Chinese offshore oil exploration, because the previous system in which each leading company specialized in a different market was abolished. Consequently cnooc faced strong domestic competition from Sinopec and Petrochina. wto accession also opened the offshore oil market to potential participation by foreign multinational oil companies.33 As for chemicals, in 2003 Petrochina was the market leader with a turnover of 455,133 million rmb, and Sinopec was second with a turnover of 443,136 million rmb, while cnooc had a turnover of only 40,950 million rmb: in other words, cnooc then had ‘virtually no chemical business’.34 During this period, in the midst of reforms of Chinese state-owned enterprises (soes) and following China’s adoption of the Going Out (走出去战略, Zǒuchūqū Zhànlüè) policy in 2001, Sinopec and Petrochina both sought alliances with foreign companies, and in 2005 cnooc made an ultimately unsuccessful bid for the American oil company Unocal. cnoocc’s agreement with dsm Chemical was part of the same wave of competition for a share of the increasingly overlapping domestic and international markets.
31 On the domestic oil and petrochemicals sectors in China, see Nolan, National Champions, supra note 25, at 49–56, 164–166. 32 On the history of the Chinese petroleum industry, see Ellennor Grace M Francisco, ‘Petroleum Politics: China and Its National Oil Companies’, Master Thesis, Academic Year 2012–2013, Master in Advanced European and International Studies, Anglophone Branch, Centre international de formation européenne, Institut Européen, Paris, pp. 6–18, 66–67 (Appendix 2.1). 33 See also Ibid., pp. 11–13. 34 Jörg Wuttke, ‘The Petrochemical Industry in China’, in Gunter Festal, Andreas Kreimayer, Udo Oels and Maximillian von Zedwitz (eds), The Chemical and Pharmaceutical Industry in China: Opportunities and Threats for Foreign Companies (Springer Verlag, Berlin, 2010), 9–22 at 18–22. Turnover statistics come from Table 2.3 at p. 20, the quotation is from p. 18. For further general background information on these companies, see their pages on Wikipedia at http://en.wikipedia.org/wiki/China_National_Offshore_Oil_Corporation (cnooc), http://en.wikipedia.org/wiki/Sinochem_Group (Sinochem) and http://en .wikipedia.org/wiki/Petro-China (Petrochina), accessed 23 March 2012. As usual, Wikipedia pages are subject to review and correction and should be used only together with other sources.
The market for fertilisers also felt the effects of China’s accession to the wto. As of 1999 the importation of fertilisers was reserved to foreign trade companies designated by the then Ministry of Trade and Economic Cooperation (moftec, now Ministry of Commerce, mofcom).35 The designated state trading enterprises were China National Chemical Import & Export Company, which was part of Sinochem, and China National Agricultural Means of Production Group (cnampg). cnampg grew out of the China Union of Supply and Marketing Cooperatives founded in 1950, was merged into the Ministry of Commerce in 1957, was set up as a company in 1982 and since 1993 has been part of the Sino-Agri Group.36 They were the only enterprises approved by the Chinese government for import, export and distribution of chemical fertilisers and biocides in China.37 wto accession required the Chinese government to liberalise the right to trade, that is, the right to import and export goods, except for specified products.38 Joint ventures with a minority-state foreign invest- ment were to be entitled to full trading rights, subject to product exceptions, by one year after accession;39 and all export performance conditions for foreign- invested joint ventures, among others, would be removed by the third year after accession. Specific products were exempted from these provisions.40 The wto Working Party Report on China’s accession included fertilisers in the list of products subject to state-trading. Numerous chemical fertilisers were subject to the monopoly rights of state-trading enterprises. The listed fertilisers included urea (hs No. 31021000) and mineral or chemical fertilis- ers, nitrogeneous, nes, incl. mixtures not specified in the foregoing subhead- ings (hs No. 31029000). Licenses were required for importation of chemical
35 World Trade Organization, Report of the Working Party on the Accession of China, p. 27, para 134, WT/ACC/CHN/49; World Trade Organization, Protocol on the Accession of the People’s Republic of China, Doha, 10 November 2001 (Cambridge University Press, Vol 1, Cambridge, 2003), Annex 2A1 Products submit to state trading (Import), at 21. 36 Sino-Agri Leading Bio-Sciences Company Ltd, ‘About Us’, available at http://en.sino-agri -sal.com/about.-php?-cid=13, last accessed 25 January 2015. 37 World Trade Organization, Report of the Working Party on the Accession of China at 41 and 93 (Annex 2A1 Products subject to state trading (Import)), WT/ACC/CHN/49; World Trade Organization, Protocol on the Accession of the People’s Republic of China, Doha, 10 November 2001 (Cambridge University Press, Vol 1, Cambridge, 2003), at 22 (Annex 2A1 Products subject to state trading (Import)), WT/L/432. See also AgriFood Asia: Industry Sectors, Chemicals, China, available at http://www.agrifoodasia.com/English/ind_sectors/ chemi-cals.htm, last accessed 3 May 2014. 38 World Trade Organization, Protocol on the Accession of the People’s Republic of China, Doha, 10 November 2001 (Cambridge University Press, Vol 1, Cambridge, 2003), paragraph 5. 39 World Trade Organization, Report of the Working Party on the Accession of China, p. 16, paragraph 83(c). 40 Ibid., p. 16, paragraph 83(d).
41 World Trade Organization, Protocol on the Accession of the People’s Republic of China, Doha, 10 November 2001 (Cambridge University Press, Vol 1, Cambridge, 2003), Annex 2A1 Products submit to state trading (Import), at 21. 42 Ibid., at 44, paragraph 7(1); Annex 3 Non-tariff measures subject to phased elimination, Table One Products Subject to Import Licence, Import Quota and Import Tendering, WT/L/432. 43 Ibid., at 67, Annex 4 Products and Services Subject to Price Controls, Products Subject to Government Guidance Pricing, WT/L/432. 44 Ibid., at 7, paragraph 9(3), WT/L/432. 45 Ibid., paragraph 2(A),(B), WT/L/432. 46 World Trade Organization, Ministerial Conference, Fourth Session, Doha, 9–13 November 2001 (WT/MIN(031) 3 [reprinting WT/ACC/CHN/49 and WT/ACC/CHN/49/Corr.1 in English only], 10 November 2001), Report of the Working Party on the Accession of China p. 43, paragraph 222 (Cambridge University Press, Cambridge, 2003). 47 Ibid., Annex 5A Notification pursuant to Article xxv of the Agreement on Subsidies and Countervailing Measures, V Preferential Policies for the Special Economic Zones (exclud- ing the Pudong Area of Shanghai), point 7(1), p. 147 (Cambridge University Press, Cambridge, 2003). 48 Ibid., Annex 5A Notification pursuant to Article xxv of the Agreement on Subsidies and Countervailing Measures, viii Preferential Policies for Foreign Invested Enterprisespoint 7(6), p. 150 (Cambridge University Press, Cambridge, 2003). 49 Agreement on Subsidies and Countervailing Measures, Articles 1 (definition of subsidy), 2 (prohibition of subsidies subject to certain conditions). World Trade Organization, Ministerial Conference, Fourth Session, Doha, 9–13 November 2001 (WT/MIN(031) 3
These various factors converged in the logic justifying the proposed dsm- cnoocc joint venture in Hainan. The joint venture was envisaged originally as a 70% share for dsm and 30% for cnoocc; dsm reported subsequently that it held 49% of its joint venture melamine production in China.50 The Hainan plant, making use of local gas, was to be the world’s largest melamine produc- tion facility. It was to be built near the Stamicarbon-licensed cnooc urea plant on Hainan Island, and ‘the melamine plant [was] to be integrated with cnoocc’s modern large-scaled urea plant – based on technology licensed by dsm – on Hainan’.51 It was planned to start in 2007, with Chinese production of melamine increasing from 46,500 metric tons in 1998 to 88,000 metric tons in 2003, making China one of the largest melamine-producing countries in the world.52 With proximity to the Chinese domestic market, easy access to raw materials, economies of scale, and high technology, the Hainan joint venture was expected to have an annual capacity of 120,000 metric tons.53 However, the dsm-cnoocc joint venture never came to fruition. On 27 September 2007, three years after signing the letter of intent, dsm announced a major change of business strategy: henceforth it would focus on
[reprinting WT/ACC/CHN/49 and WT/ACC/CHN/49/Corr.1 in English only], 10 November 2001), Report of the Working Party on the Accession of China, p. 79, paragraph 10(3) (Cambridge University Press, Cambridge, 2003). 50 ‘dsm, ‘dsm to sell dsm Agro and dsm Melamine to Orascom Construction Industries, Heerlen, Netherlands, 30 March 2012, 07:15 cet, available at http://www.dsm.com/en_US/ html/dcn/03_03_10_DSM-_sell_Melamine_Agro_to_OCI.htm, accessed 23 March 2012. 51 Hans Dijkman, Business Group Director, dsm Melamine, ‘dsm Melamine: Growing a Profitable Business’ [hereafter Dijkman, ‘dsm Melamine’], Chemical Analysts Conference, Vaalsbroek, Netherlands, 24 September 2004, p. 3.23, available at http://www.dsm.com/ en_US/cworld/public/investors/downloads/publications/dijkman_24_sept.pdf, accessed 23 March 2012; on the cnooc urea plant, see Yang Yexin and James H. Gosnell, ‘cnooc Chemical Ltd. New Fertilizer Plant, prepared for presentation at the 49th Annual Safety in Ammonia Plants and Related Facilities Symposium, Denver, Colorado, 20–23 September 2004, available at http://www.kbr.com/Newsroom/Publica-tions/technical-papers/CNOOC -Chemical-Ltd-New-Fertilizer-Plant.pdf, accessed 26 March 2012. 52 Anthony S. Travis, ‘Manufacture and the Uses of the Anilines: A Vast Array of Processes and Products’, in Zvi Rappoport (ed), The Chemistry of Anilines (John Wiley & Sons, Chichester, England, 2007), 715–782 at 771. 53 Dijkman, ‘dsm Melamine’, supra note 51; Stefan Sommer, ‘dsm in China: In Touch with Evolving Needs in the Specialty Chemicals Market’, in Gunter Festel, Andreas Kreimeyer, Udo Oels and Max von Zedtwitz (eds), The Chemical and Pharmaceutical Industry in China: Opportunities and Threats for Foreign Companies (Springer, Heidelberg, 2005, p. 260. A second edition of the book with the same editors and same title was published by Springer in 2010.
54 dsm, ‘History’, available at http://www.dsm.com/corporate/about/our-company/dsm -history-timeline.html, last accessed 17 January 2014. On dsm investments and divest- ments since 2003, see dsm Information Center, at https://www.dsm.com/corporate/ investors/informationcenter.limit.30.year.2005.offset.0.html?markets=dsmpr-ess -releases%3Aacquisitions_investm, last accessed 21 January 2014. The Hainan joint ven- ture proposal never reached the investment stage so is not listed. 55 dsm, ‘New dsm Strategy Towards 2010: Accelerate Growth, Innovation, Portfolio Quality’, available at http://globenewswire.com/news-release/2005/10/06/334462/87411/en/New -DSM-Strategy-Towards-2010-Acce-lerate-Growth-Innovation-Portfolio-Quality.html, last accessed 21 January 2014. 56 ‘dsm, ‘dsm to sell dsm Agro and dsm Melamine to Orascom Construction Industries, Heerlen, Netherlands, 30 March 2012, 07:15 cet, available at http://www.dsm.com/en_US/ html/dcn/03_03_10_DSM-_sell_Melamine_Agro_to_OCI.htm, accessed 23 March 2012. See also the Orascom Construction Industries Annual Report for 2010, at 2, 8, 10, available at http://www.orascomci.com/filestore/OCI2010AnnualReport.pdf, last accessed 10 January 2014. Orascom annual reports are available at http://www.orascomci.com/index.php? -id=annualreportsarchive, last accessed 17 January 2014. 57 Orascom Construction Industries Annual Report 2010, at 6, available at http://www .orascomci.com/filestore/-OCI2010AnnualReport.pdf, last accessed 17 January 2014.
See also http://www.ocichina.com.cn/about.asp?-catid=23&classid=144, last accessed 17 January 2014. 58 See InfoChine et Chimie Pharma Hebdo, ‘Orascam s’empare de dsm Agro et dsm Melamine, 6 April 2010, available at http://www.industrie.com/chimie/orascom-s-empare -de-dsm-agro-et-dsm-melamine,36338, last accessed 27 January 204. Today oci Nitrogen has its China headquarters in Shanghai and a 49% stake in a melamine joint venture in Pinglu and Jishan, Shanxi Province. http://www.ocinitrogen.com/EN/Pages/-Locations .aspx, last accessed 27 January 2014. The Pinglu company is Shanxi Fenghe Melamine Company, see http://cn.linkedin.com/pub/tongyong-ding/41/ba/123, last accessed 27 January 2014. 59 Sommer, ‘dsm in China’, supra note 28, at 247, note 1. 60 Authors [entry: Stefan Sommer] in Gunter Festal, Andreas Kreimayer, Udo Oels and Maximillian von Zedwitz (eds), The Chemical and Pharmaceutical Industry in China: Opportunities and Threats for Foreign Companies (Springer Verlag, Berlin, 2010), 247–263 at 282. 61 dsm Press Release, ‘Appointment at dsm’, available at http://www.dsm.com/en_US/ cworld/public/media/-downloads/25e_06_appointment_robek.pdf?fileaction=openFile, accessed 26 March 2012. See also Hans Dijkman, Business Group Director, dsm Melamine, ‘dsm Melamine: Growing a Profitable Business’, Chemical Analysts Conference, Vaalsbroek, Netherlands, 24 September 2004, available at http://www.dsm.com-/en_US/cworld/public/ investors/downloads/publications/dijkman_24_sept.pdf, accessed 23 March 2012. 62 ‘dsm appoints Wei-Ming Jiang as President of dsm China (Ltd)’, available at http://www .dsm.com/nl_NL-/html/dcn/03_03_07_DSM_China_News_Weiming_Jiang.htm, last accessed 17 January 2014.
By 2010, dsm’s reorientation was virtually complete.63 Following its new emphasis on sustainability and its Triple P motto of ‘People, Planet, Profit’, it focused on life sciences and materials science.64 The main ‘clusters’ were phar- maceuticals, nutrition, performance materials and polymer intermediates, and the company envisaged biotechnology, biomedicine and advanced sur- faces as emerging growth areas. On the European side, the proposed Hainan joint venture proposal thus disappeared without trace, at least so far as one can tell without considerable research on company histories.65 The same was true on the Chinese side. Undoubtedly the Chinese govern- ment was aware of dsm’s plan for reorientation, and most likely it approved, at least tacitly, the implications for the proposed joint venture. Certainly the shift in the activities of a multinational company toward investment in the produc- tion of biotechnology, health and pharmaceuticals in China would contribute more to Chinese economic growth and to the development of Chinese domes- tic enterprises than another joint venture in melamine production alone. In any event, in September 2003 cnooc Chemical had commissioned a joint ven- ture with Kellogg, Brown & Root66 to build a new ammonia and urea plant in Hainan; about three years the plant started production, using Stamicarbon
63 The president and ceo of the recently divested dsm Melamine, Mr Anton Robek, became senior vice president of dsm White Biotechnology, renamed as dsm Bio-Based Products and Services. See ‘Reshaped dsm sets out its stall’, Specialty Chemicals Magazine, http:// www.specchemonline.com/articles/view/reshaped-dsm-sets-out-its-stall#.Ut5ISBA1jIU, last accessed 21 January 2014. 64 See dsm, ‘Sustainability in China’, available at http://www.dsm.com/nl_NL/html/dcn/ sustainability_china.-htm, last accessed 17 January 2014; dsm, ‘dsm Sustainability Report 2007’, available at http://www.dsm.-com/en_US/downloads/dcn/2007_triple_P_cn_final .pdf, last accessed 17 January 2014. 65 It is important to realise that the termination of the joint venture proposal probably had little if anything to do with the dairy sector, unless dsm then was aware (which it may have been; the Chinese government certainly was) of the illegal addition of melamine to liquid milk (discussed later). Nevertheless, it is interesting to note dsm today produces cultures and enzymes used in the dairy sector to affect flavour and texture and to produce higher yields. See ‘dsm in food, beverage and dietary supplements: Your way in dairy: We make it happen’, available at https://www.dsm.com/markets/foodandbeverages/en_US/ markets-home/market-dairy-lp.html, last accessed 24 January 2014. 66 Now kbr, Inc. Kellogg, Brown & Root resulted from the merger in 1997 of M.W. Kellogg and Brown & Root, a construction company which was a subsidiary of Haliburton Energy Services: ‘kbr (company)’, http://en.wikipedia.org/wiki/KBR_%28company%29, last accessed 18 January 2015.
67 Yang Yexin and James H. Gosness, ‘cnooc Chemical Ltd. New Fertilizer Plant’, prepared for presentation at the 49th Annual Safety in Ammonia Plants and Related Facilities Symposium, Denver, Colorado, 20–23 September 2004, available at http://www.kbr.com/ Newsroom/Publications/technical-papers/CNOOC-Chemical-Ltd-New-Fertilizer-Plant .pdf, last accessed 18 January 2015. 68 Wang Ying, ‘cnooc to snap up chemical company’, China Daily, 24 October 2006, 06:37, available at http://www.chinadaily.com.cn/china/2006-10/24/content_715158.htm, accessed 26 March 2012. On cnccc, see http://chemicals.indiabizclub.com/profile/161312 0~china+national+chemical+construction+corporation~beijing_china#, last accessed 26 March 2012. 69 Yang Yexin and James H. Gosness, ‘cnooc Chemical Ltd. New Fertilizer Plant’, prepared for presentation at the 49th Annual Safety in Ammonia Plants and Related Facilities Symposium, Denver, Colorado, 20–23 September 2004, available at http://www.kbr.com/ Newsroom/Publications/technical-papers/CNOOC-Chemical-Ltd-New-Fertilizer-Plant .pdf, last accessed 18 January 2015. 70 See People’s Daily Online, ‘Hainan becomes home of world’s largest chemical plant’, 11 April 2005, available at http://en.people.cn/200504/11/eng20050411_180472.html, last visited 10 December 2014. 71 mydallaspost.com, ‘What is the history of Yexin Yang and the latest information about Yexin Yang’, available at http://finance.mydallaspost.com/what-is-the-history-of-yexin -yang-and-the-latest-information-about-yexinya-ng/wpshf/executive/yexin-yang/yexin -yang-3410515.htm, last accessed 18 January 2015. cnooc bought the Hainan fertilizier plant Fudao Chemical Factory in October 2000: Yang Yexin and James H. Gosness, ‘cnooc Chemical Ltd. New Fertilizer Plant’, p. 3, prepared for presentation at the 49th Annual Safety in Ammonia Plants and Related Facilities Symposium, Denver, Colorado, 20–23 September 2004, available at http://www.kbr.com/Newsroom/Publications/technical -papers/CNOOC-Chemical-Ltd-New-Fertilizer-Plant.pdf, last accessed 18 January 2015. 72 Among other sources: Bloomberg Businessweek, ‘Overview of cnooc Fudao Ltd’, available at http://-investing.businessweek.com/research/stocks/private/snapshot.asp?privcapId= 109231487, last accessed 19 January 2015.
73 China Businessweek, China Bluechemical Ltd – H, Executive Profile & Biography: Yexin Yang’, available at http://investing.businessweek.com/research/stocks/people/person.asp ?personid=8358434&ticker=3983:HK, last accessed 18 January 2015; mydallaspost.com, ‘What is the history of Yexin Yang and the latest information about Yexin Yang’, available at http://finance.mydallaspost.com/what-is-the-history-of-yexin-yang-and-the-latest -information-about-yexin-yang/wpshf/executive/yexin-yang/yexin-yang-3410515.htm, last accessed 18 January 2015. 74 For a brief description of the company, see http://www.bloomberg.com/profiles/companies/ 1003567D:CH-sichuan-golden-elephant-sincerity-chemical-co-ltd, last accessed 16 January 2015. The company website is listed as http://www.jxgf.com/homee.asp, last accessed 28 March 2012. 75 For an overview of the sector as of 2005, see Frank Fuller, Jikun Huang, Hengyun Ma and Scott Rozelle, ‘Got milk? The rapid rise of China’s dairy sector and its future prospects’, Food Policy, 31, 2006, 201–215, and Dinghuan Hu, ‘China: Dairy Product Quality as the New Industry Driver’, at 7, available at http://www.fao.org/-docrep/011/i0588e/i0588e04.htm, last accessed 24 September 2013. 76 See Dinghuan Hu, ‘China: Dairy Product Quality as the New Industry Driver’, at 7, avail- able at http://www-.fao.org/docrep/011/i0588e/i0588e04.htm, last accessed 24 September 2013. On development of the Chinese dairy industry generally, see Li Jing, Policy coordina- tion in China: the cases of infectious disease and food safety policy, PhD Thesis, University of Hong Kong, January 2010, at 101–110, available on The hku Scholars Hub, The University of Hong Kong at http://hdl.handle.net/10722/57580, last accessed 20 September 2013.
77 See Richard McGregor, The Party: The Secret World of China’s Communist Rulers [hereafter McGregory, The Party] (Harper, New York, 2010), pp. 181–182 (hereafter McGregor, The Party). 78 This paragraph is based on ‘Mengniu Dairy’ at http://en.wikipedia.org/wiki/Mengniu _Dairy, last accessed 3 March 2014, and ‘Yili Group’ at http://en.wikipedia.org/wiki/Yili _Group, last accessed 3 March 2014. 79 See ‘Arla Foods’ at http://en.wikipedia.org/wiki/Arla_Food, last accessed 3 March 2014. See also the Arla website at www.arla.com, last accessed 3 March 2014. 80 Yumin Sheng, Economic Openness and Territorial Politics in China (Cambridge University Press, Cambridge, 2010) (hereafter Sheng, Openness), 71, Table 3.4 Growth and Wealth among the Provinces, 1978–2004. 81 For the period 1991–2004, Hebei’s Trade/GDP ratio was 6.64%, its Export/GDP ratio was 7.43% and its FDI/GDP ratio was 1.46%. In contrast, the comparable figures for Guangdong Province were 130.80%, 74.06% and 10.53%, and for Jiangsu Province they were 38.25%, 22.52% and 6.22%: Ibid., 67, Table 3.3 Economic Globalisation among the Provinces. 82 Wikipedia, ‘Fonterra’, available at http://en.wikipedia.org/wiki/Fonterra, last accessed 15 January 2015. 83 Ibid.; Wikipedia, ‘New Zealand Dairy Board’, available at http://en.wikipedia.org/-wiki/ New_Zealand_Dairy_Board, last accessed 15 January 2015; Fonterra, ‘The New Zealand
By the joint venture agreement, Sanlu aimed to strengthen its market posi- tion and to develop into a leading international company, celebrating in advance, as it were, Sanlu’s 50th birthday, to be held the following year.84 The agreement was initialed at the Diao Yu Tai State Guest House in Beijing.85 Fonterra contributed rmb 864 million (us$107 million) and took a 43% stake in Sanlu. Sanlu Limited, representing management and employees, held a 56% share, and several small shareholders held the remaining 1%.86 Fonterra had three seats on the joint venture board of seven members and one repre sentative on the senior executive team of the Shijiazhuang Sanlu Group. Unfortunately, as the company admitted later, Fonterra had only one Mandarin speaker on its Sanlu staff and only one technician to oversee the maintenance of Fonterra’s internationally reputed standards.87 Nonetheless, the joint ven- ture considerably strengthened Fonterra’s position in the Chinese market rela- tive to its foreign competitors, mainly American and European: by 2009 Fonterra accounted for between 80%-90% of total monthly milk powder imports into China.88 The Fonterra – Sanlu joint venture was concluded in the context of dramatic changes in the structure of the domestic Chinese dairy market. It contributed to an increase in the demand for raw milk in China.
International Trade, Competition for Markets and Anti-Dumping A second strand of transnational economic and legal relations pertinent to the subsequent melamine crisis comprised international trade, market competition
Dairy Industry’, available at http://www.fonterra.com/global/en/financial/global+dairy+ industry/new+zealand+dairy+industry, last accessed 15 January 2015. 84 Fonterra Co-operative Group Ltd, ‘Fonterra and San Lu Reach Joint Venture Agreement’, Media Release 1 December 2005, available at http://www.scoop.co.nz/stories/BU0512/ S00032.htm, last accessed 22 September 2013. 85 Fonterra Co-operative Group Ltd, ‘Fonterra and San Lu Reach Joint Venture Agreement’, Media Release 1 December 2005, available at http://www.scoop.co.nz/stories/BU0512/ S00032.htm, last accessed 22 September 2013, according to which this was the largest foreign investment in a Chinese dairy company ever made up to that time. This article reports that Fonterra was advised by Deutsche Bank, PricewaterhouseCoopers and Baker & McKenzie. 86 Fonterra Co-operative Group Ltd, ‘Fonterra and San Lu Reach Joint Venture Agreement’, Media Release 1 December 2005, available at http://www.scoop.co.nz/stories/BU0512/S00032 .htm, last accessed 22 September 2013. See also Jenny Fu and Geoffrey Nicoll, ‘The Milk Scandal and Corporate Governance in China’, Canberra Law Review, 10, 3, 2011, 103–124 at 106–107. 87 Eloise Gibson, ‘Fonterra will test for every poison’, The New Zealand Herald, Thursday, 25 September 2008, available at http://www.nzherald.co.nz/fonterras-chinese-milk-scandal/ news/article.cfm?c_id=1502761&objec-tid=10534051, last accessed 3 May 2014. 88 ‘Fonterra milk powder challenged in China’, Shenzhen Daily, Wednesday, 18 December 2013, p. 6.
89 United States International Trade Commission, Economic Effects of Antidumping and Countervailing Duty Orders and Suspension Agreements (Diane Publishing Company, Darby, pa, 1995), 11–21 – 11–23 [Chapter 11, pp. 21–23]. The quotations are from pages 11–21 and 11–23. 90 For an introduction, see Chad P. Bown, ‘Global Antidumping Database Version 3.0’ [here- after Bown, ‘Database’], available at http://siteresources.worldbank.org/INTTRADERESEARCH/ Resources/544824-1272916036631/bown-global-a-d-v3.0.pdf, last accessed 12 August 2014.
91 Lucy Davis, ‘Ten Years of Anti-dumping in the eu: Economic and Political Targeting’, European Centre for International Political Economy, ecipe Working Paper no. 02/2009, p. 11, available at http://www.ecipe.org/-media/publication_pdfs/ten-years-of-anti-dumping -in-the-eu-economic-and-political-targeting.pdf, last accessed 8 August 2014. 92 Bown, ‘Database’, supra note 90.
93 On 1 May 2004 Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia became Member States of the European Union. Bulgaria and Romania joined the eu on 1 January 2007. eu Member States do not have the legal competence to impose anti-dumping duties, and the eu does not impose anti-dumping duties on its Member States. eu duties on newly acceding Member States were terminated as of the date of accession at the latest. 94 Bown, ‘Database’, supra note 90. 95 Lucy Davis, ‘Ten Years of Anti-dumping in the eu: Economic and Political Targeting’, European Centre for International Political Economy, ecipe Working Paper no. 02/2009, pp. 12–13, available at http://www.ecipe.-org/media/publication_pdfs/ten-years-of-anti -dumping-in-the-eu-economic-and-political-targe-ting.pdf, last ace-ssed 8 August 2014. 96 Bown, ‘Database’, supra note 90. 97 See Indian Customs, Anti-dumping duty on Melamine, Customs Notification No. 107/204, 16-11-2004, available at http://www.eximguru.com/Notifications/Anti-dumping-duty-on
Pvt. Ltd, Gujurat State Chemicals & Fertilizers Ltd (gscf), and Fertilizers & Chemicals Travancore Ltd.98 However in the official report gscf was listed as the complainant and described as the sole melamine producer in India.99 Tianjin Kaiwei was established in China in 1995 and is a major producer of melamine and caustic soda.100 The anti-dumping duty that was imposed in 2004 is still in force.101 In the eu 2010 investigation regarding melamine from China, the com- plainants were the only European producers: dsm Melamine bv (now oci Melamine bv), Borealis Agrolinz Melamine GmbH, a Vienna-based company formed in 1994 by the merger of the Norwegian oil company Statoil and the Finnish refining and marketing company Neste,102 and the Polish company Zaklady Azotowe Pulawy.103 The defendants were Sichuan Jade Elephant Melamine S&T Company Ltd, Shandong Liaherd Chemical Industry Co. Ltd., Henan Junhua Development Company Ltd, and others referred on the World Bank Global Antidumping Database as ‘All Other Companies’,104 the last group included Tianjin Kaiwei Chemical Co. Ltd.105 The eu anti-dumping authority, the European Commission, found that the Chinese companies
-Melamine-12251.aspx, last accessed 9 August 2014, Government of India, Ministry of Finance (Department of Revenue), Notification No. 10/2010-Customs, to be published in the Gazette of India, Extraordinary, Part ii, Section 3, Sub-Section (i), available at www.cbec .gov.in/customs/cs-act/notifications/notfns-2k10/cs10-2k10.htm, last accessed 9 August 2014. 98 See Bown, ‘Database’ supra note 90. 99 Available at Republic of India, Ministry of Commerce and Industry (Department of Commerce), Final Findings, New Delhi, the 3rd September 2004, Subject: Anti-dumping investigation concerning imports of Melamine from the People’s Republic of China, Final Findings, No. 14/16/2003-dgad, http://webcache.-googleusercontent.com/search?q=cache: http://commerce.nic.in/adfin_melamine_chinapr.htm, last accessed 12 August 2014. 100 See the company profile at http://www.e-to-china.com/company/companyinfo.php?usd =243649, last accessed 12 August 2014. 101 See Bown, ‘Database’, supra note 102. 102 On Borealis, see http://www.borealisgroup.com/ and http://en.wikipedia.org/wiki/Borealis On Neste, see http://www.nesteoil.com/ and http://en.wikipedia.org/wiki/Neste_Oil. 103 On Pulaway, see http://www.zapulawy.pl/ and http://en.wikipedia.org/wiki/Zak%C5%82ady _Azotowe_Pu%-C5%82awy. 104 Bown, ‘Database’, supra note 90. For further details about the Chinese companies, see Commission Regulation (eu) No 1035/2010 of 15 November 2010 imposing a provisional anti-dumping duty on imports of melamine originating in the People’s Republic of China, paragraph 9, ojeu 16.11.2010, L298/10 at L298/11. 105 See Commission Regulation (eu) No 1035/2010 of 15 November 2010 imposing a provi- sional anti-dumping duty on imports of melamine originating in the People’s Republic of China, paragraph 20, ojeu 16.11.2010, L298/10 at L298/11.
Companies that produce urea, which is then used by them to produce melamine, benefit from a low government fixed gas price for the produc- tion of urea. A company producing urea, which is a fertilizer and impor- tant for the Chinese agricultural and food industry, pays a significantly lower price for its gas compared to companies which need gas for other industrial uses.107
The Commission also concluded that the low gas price allowed companies to produce melamine at very reduced prices, since ‘natural gas forms a major part of the cost of urea (around 80%) and that urea represents between 50 and 60% of the cost of production of melamine’.108 The investigation showed that eu consumption between 2006 and 2008 declined by more than 15%, due largely to a decline in the housing and construction markets, the main users of melamine, while imports from China increased by 30% but during the investi- gation period imports from China decreased and their market share declined.109 The investigation period was from 1 January 2009 to 31 December 2009,110 and the Commission found that the crisis in the melamine sector was ‘at its peak’ during the first half of the year.111 It was accentuated by the financial crisis, which had a serious impact on China’s foreign markets. The ec imposed a mini- mum import price (instead of anti-dumping duties) on all imports of melamine from China; one exporters, Sichuan Jade Elephant Melamine S&T Co. Ltd.,112 notified the eu in 2013 that it had changed its name to Sichuan Golden-Elephant
106 Ibid., at L298/11. 107 Ibid., at L298/11. 108 Ibid., at L298/11. 109 Ibid., at L298/11. 110 Ibid., at L298/11. 111 Ibid., at L298/11. 112 Council Implementing Regulation (eu) No. 457/2011of 10 May 2011 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed of imports of melamine originating in the People’s Republic of China, oj 13.5.2011 L124/2. On the company, see Chen Duanyang, ‘Melamine in China and Action on Sichuan Jade Elephant Melamine S&T Company, Ltd’, prepared to the iv International Melamine Meeting in Moscow, 9 October 2009, available at http://www.creonenergy.ru/upload/iblock/1e3/Melamine-%20 in%20Chian%20and%20action%20on%20Sichuan%20Jade%20Elphant%20 Melamine%20SxT%20Co.,Ltd.%20Chen%20Duanyang.pdf, last accessed 25 January 2015.
Sincerity Chemical Co. Ltd. while remaining subject to the minimum import price.113 I speculate that the combination of foreign anti-dumping duties and Chinese government subsidies in the form of low domestic gas prices contrib- uted to an oversupply of melamine and thus to lower prices for melamine on the Chinese domestic market.114
Illegal Trade and the Rise of Foreign Risk Regulation The discussion so far has highlighted various features of the changing connec- tions between transnational economic and legal relations, international trade, and Chinese domestic markets. It aimed to identify clearly some of the princi- pal ways in which the social field of transnational markets conditioned and might affect the social field centred on domestic dairy products and the social field of law, regulation and government. It may appear to be speculative to pinpoint a precise connection between international markets and Chinese domestic practices in general. Nonetheless, the preceding discussion indicates numerous overlaps between the first and the second worlds of melamine, notably through the mechanism of prices. This section introduces a further example of transnational relations: illegal trade and the rise of foreign risk regulation. As early as 2006, illegal trade in melamine disturbed relations between China and the United States. From the perspective of individuals or organisations, this may be seen simply the consequence of greed. From a broader, systemic or macro-economic perspective, it might be considered as a remedy for domestic Chinese oversupply. In either case, it comprised illegal practices, both domestically in China and in the importing countries. It also exemplified a further connection between the three worlds of melamine, albeit one which began its trajectory in China. Starting in 2006, problems were noted in the United States with regard to melamine added to food and feed products exported from China. Beginning in March 2007, numerous cats and dogs died in the United States from eating contaminated pet food, composed of ingredients originating partly in China.
113 Notice concerning the anti-dumping measures in force in respect of imports into the Union of melamine originating in the People’s Republic of China: modification of the name of a company subject to an individual anti-dumping duty rate, ojeu 31.5.2013 C153/3. 114 By late 2009 three leading Chinese producers had closed production sites or reduced production due to lower demand and lower prices: Fanny Zhang, ‘China’s Sichuan Chem 2009 net profit slumps 35%’, icis News, 9 February 2010, available at http://www.icis.com/ resources/news/2010/02/09/9332776/china-s-sichuan-chem-2009-net-profits -slumps-35-/, last accessed 10 February 2015.
Exact numbers are unknown, but reportedly they ranged up to 4,000.115 The u.s. Food and Drug Administration (fda) reported finding granular melamine in the pet food as well as in a main ingredient, wheat gluten, imported from China, and in the kidneys and urine of infected animals. When mixed with other chemicals, melamine could quickly cause kidney failure.116 Menu Foods, based in Ontario, Canada, was the largest producer of wet cat and dog food in North America. It ordered the recall of 60 million containers of pet food, mostly manufactured in the United States and sold under about 100 brand names. ChemNutra, a major supplier of wheat gluten based in Las Vegas, Nevada, recalled 792 tonnes of wheat gluten which it had supplied to American manufacturers of pet food.117 The contaminated wheat gluten was supplied to Menu Foods and to ChemNutra by Xuzhou Anying Biologic Technology Development Co. Ltd, based in Jiangsu Province, China.118 Xuzhou Anying Biologic reportedly had listed its exports as non-food products and shipped them to the u.s. through a third party to avoid Chinese customs inspection.119 The fda ordered ‘detention
115 ‘As many as 3,600 as of 11 April [2007] is the figure given in ‘2007 pet food recalls’, http:// en.wikipedia.org/wiki/Pet_food_recalls, accessed 27 March 2012. 4,000 is the figure given by ny Times News Service, Shanghai, ‘Firm in pet food case mislabeled exports’, Taipei Times, Friday, 4 May 2007, http://www.taipeitimes.com/News/worldbiz/archives/2007/ 05/04/2003359448, accessed 27 March 2012. 116 The other chemicals include aminopterin, used in rat poison, and cyanuric acide, used to stabilize chlorine in swimming pools. See the report by the University of Guelph Animal Health Laboratory, available at www.cbc.ca/cp/national/071227/n122706A.html, accessed 29 March 2012. See also ‘Menu Foods’, available at http://en.wikipedia.org/wiki/Menu _Foods, accessed 29 March 2012. 117 u.s. Food and Drug Administration, Recall-Firm Press Release: ChemNutra Announces Nation wide Wheat Gluten Recall’, available at http://www.fda.gov/Safety/Recalls/ArchiveRecalls/ 2005/ucm112153.htm, last accessed 26 January 2015. 118 Karen Roebuck, ‘fda names gluten maker from China’, Pittsburgh Tribune-Review, TribLIVE News, Monday, 2 April 2007, http://www.pittsburghlive.com/x/pittsburghtrib/ news/s_500724.html, accessed 27 March 2007. 119 ny Times News Service, Shanghai, ‘Firm in pet food case mislabeled exports’, Taipei Times, Friday, 4 May 2007, http://www.taipeitimes.com/News/worldbiz/archives/2007/05/04/ 2003359448. This would have been contrary to the Provisions of the People’s Republic of China on Sanitation of Food for Export (For Trial Implementation) (Promulgated by the State Administration of Import and Export Commodity Inspection and the Ministry of Public Health of the People’s Republic of China on July 16, 1984), with effect from 1 January 1985); the 1995 Food Hygiene Law (Adopted at the 16th Meeting of the Standing Committee of the Eighth National People’s Congress on October 30, 1995, promulgated by Order No. 59 of the President of the People’s Republic of China on October 30, 1995, and effective as of
the date of promulgation) (Repealed by the 2009 Food Safety Law on June 1, 2009); the Frontier Health and Quarantine Law of the People’s Republic of China (Adopted at the 18th Meeting of the Standing Committee of the Sixth National People’s Congress on December 2,1986; and amended in accordance with the Decision on Amending the Frontier Health and Quarantine Law of the People’s Republic of China adopted at the 31st Meeting of the Standing Committee of the Tenth National People’s Congress on December 29, 2007) and the Provisions on Food Hygiene Supervision and Administration at Entry/ Exit Ports (adopted through discussion at the executive meeting of the General Administration of Quality Supervision, Inspection and Quarantine on 31 December 2005, promulgated by Order No. 86 of the General Administration of Quality Supervision, Inspection and Quarantine on 1 April 2006, entry into force 1 April 2006). 120 u.s. Food and Drug Administration, Import Alert 99–29, ‘Detention Without Physical Examination of All Vegetable Protein Products From China for Animal or Human Food Use Due to the Presence of Melamine and/or Melamine Analogs’, available at http://www .accessdata.fda.gov/cms_ia/importalert_267.html, last accessed 26 January 2015. The recall notice may also be found in an fda press release at SoCalMuchacha, ‘Xuzhou Biological Technology Development Co., Ltd. (supplied tainted wheat gluten to ChemNutra)’, available at https://socalmuchacha.wordpress.com/pet-food-recall-infoposts/xuzhou-anying-biologic -technology-develop-ment-co-ltd-supplied-tainted-wheat-gluten-to-chemnutra/, last accessed 26 January 2015. Karen Roebuck, ‘fda names gluten maker from China’, Pittsburgh Tribune-Review, TribLIVE News, Monday, 2 April 2007, http://www.pittsburghlive .com/x/pittsburghtrib/news/s_500724.html, accessed 27 March 2007; On the company, see Food and Beverage Online, www.21food.com, ‘Xuzhou Anying Biologic Technology Development Cp. Ltd’, available at http://www.21food.com/showroom/30501/aboutus/ xuzhou-anying-biologic-technology-developme-nt-co.,ltd.html, last accessed 26 January 2015. 121 The legal website Justia records 214 cases brought against Menu Foods between 19 March 2007 and 5 May 2012. Most of these cases concern product liability for pet food. See http:// dockets.justia.com/search?-query=Menu+Foods, accessed 27 March 2012. It also records 19 cases brought against Xuzhou Anying Technology Development Company Ltd http:// dockets.justia.com/search?q=XUZHOU+ANYING+BIOLOGIC-+TECHNOLOGY+DEVEL OPMENT+COMPANY+LTD, accessed 27 March 2012.
122 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 (11 December 2007), available at http://globalhealth.gov/news/agreements/-ia121107b.html, accessed 27 March 2012. For an analysis of the Agreement, see Marisa Anne Pagnattaro and Ellen R. Pierce, ‘From China to Your Plate: An Analysis of New Regulatory Efforts and Stakeholder Responsibility to Ensure Food Safety’, George Washington Law Review, 42, 2010, 1–56, at 23–27. See also Chenglin Liu, ‘The Obstacles of Outsourcing Imported Food Safety to China’, Cornell International Law Journal, 43, 2010, 249–305 at 250–281 (hereafter Liu, ‘Obstacles’). 123 European Commission Directorate-General for Health and Consumer Protection (ds sanco) and the General Administration of Quality Supervision, Inspection and Quarantine of the People’s Republic of China, Arrangement for the Cooperation on Joint Prevention of Illegal Action for Import and Export of Food, reprinted in Francis Snyder, The European Union and China, 1949–2008: Basic Documents and Commentary (Hart Publishing, Oxford, 2009), pp. 831–833: translated and published in Chinese as 欧洲联盟 与中国 (1949–2008): 基本文件与评注 [平装], 2 volumes (Social Sciences Academic Press China, Beijing, April 2013) (hereafter Snyder, Basic Documents). For brief presenta- tions of eu reactions to the 2008 melamine scandal in China, Alberto Alemanno, ‘The European Food Import Safety Regime under a “Stress Test”: The Melamine Contamination of the Global Food Supply Chain’, Erasmus Law Review, 3, 4, 2010, 203–215 at 212–213; and Roland Poms, Xiaofang Pei and Daniel Spichtinger, ‘Food Safety in the European Union and China: The Melamine Case’, eu-China Observer, Issue 4, 15 September 2011, at 13–14. For a brief comparison of us and eu approaches, see Marisa Anne Pagnattaro and Ellen R. Pierce, ‘From China to Your Plate: An Analysis of New Regulatory Efforts and Stakeholder Responsibility to Ensure Food Safety’, George Washington Law Review, 42, 2010, 1–56 at 44–47. 124 Regulation (ec) No 1907/2006of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (reach), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (eec) No 793/93 and Commission Regulation (ec) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC, ojeu, 29.5.2007, L136/3.
The Second World of Melamine
Introduction The second world of melamine consists of the social field of domestic eco- nomic relations regarding the production, distribution and marketing of melamine in China. This part of the chapter focuses mainly on the market for dairy products. It analyses the origins and development of the melamine scan- dal from the standpoint of local social and economic relations.127 It aims also
125 This paragraph is based on ‘Melamine eu reach Registration Webinar Concluded in Beijing, China’, available at http://www.reach24h.com/en-us/reach24h-events/item/79 -melamine-reach-registration-webinar.html, last accessed 10 May 2014. 126 Provisions on the Environmental Administration of New Chemical Substances in China (2010), Order No. 7 of the Ministry for Environmental Protection (mep), Issued on: 30 December 2009, Date of Entry into Force: 15 October 2010, Updated by cirs [Chemical Regulation and Inspection Service], available at http://www.cirs-reach.com/China _Chemical_Regulation/The_Provisions_on_Environmental_Administration_of_New _Chemical_Substances_2010.html, last accessed 26 January 2015. 127 The available literature on the Chinese melamine scandal is immense. For those who may not have access to academic publications, Wikipedia provides an easily available, useful source. It may be unusual to recommend Wikipedia as a source of information for research, but nevertheless, if one uses due care and scholarly precaution, articles in Wikipedia can be very useful as a starting point and as a guide to further sources of information. This is particularly notable in the case of the melamine scandal, an extremely high-profile food crisis which provoked a veritable flood of publications, many of which are cited by articles in Wikipedia. For basic information and additional references, and taking usual precau- tions into account, readers may be referred to the following summary articles in Wikipedia:
The Rise of Sanlu Beginning in early 2008, complaints regarding the use of melamine in the dairy sector arose in China.128 They focused on the Sanlu Group Co. Ltd., a well-known State-owned producer of dairy products located in Shijiazhuang, the capital city of Hebei Province. Originally a small dairy farmers’ cooperative,129 known as
‘Melamine’, available at http://en.wikipedia.org/wiki/Melamine, accessed 17 November 2011; ‘Food safety in the People’s Republic of China’, http://en.wikipedia.org/wiki/ Food-_safety_in_the_People%27s_Republic_of_China, accessed 27 March 2012; ‘2007 pet food recalls’, http://en.wikipedia.org/wiki/Pet_food_recalls, accessed 27 March 2012; ‘2008 Chinese milk scandal’, http://en.wikipedia.org/wiki/2008_Chinese_milk_scandal, accessed 27 March 2012: ‘Protein adulteration in the People’s Republic of China’, http://en.wikipedia .org/wiki/Chinese_protein_adulteration, accessed 27 March 2012, ‘Sanlu Group’, available at http://en.wikipedia.org/wiki/Sanlu_Group, accessed 27 March 2012. 128 An earlier draft of this section was based on an initial skeleton timeline prepared by Ms Lu Yi under my supervision. It relies on internet and private sources, so does not contain footnotes. I am very grateful to Lu Yi for her assistance. A copy of the timeline is on file with the author. For an overview of the melamine crisis from the standpoint of public policy, see Li Jing, Policy coordination in China: the cases of infectious disease and food safety policy, PhD Thesis, University of Hong Kong, January 2010 [hereafter Li, PhD Thesis], available on The hku Scholars Hub, The University of Hong Kong at http://hdl .handle.net/10722/57580, last accessed 20 September 2013, now published as Jing Li, Policy Coordination in China: The Cases of Infectious Diseases and Food Safety [hereafter Li, Policy Coordination] (lap Lambert Academic Publishing, Saarbrűcken, Germany, 2012). Research for and writing of this chapter was substantially completed before that book was published, so subsequent references to the work are to the PhD thesis unless other- wise noted. A detailed timeline may be found in Francis Sun, ‘Sanlu Group and the Tainted Milk Crisis’, paper number 9B09M077 written under the supervision of Professor Shih-Fen Chen, Richard Ivey School of Business, University of Western Ontario, (Ivey Management Services, 2009), p. 6, available at http://www.asiapacific.ca/sites/default/ files/sanlu.pdf, last accessed 26 January 2015, pp. 19–21, Exhibit 2. A brief timeline may also be found in Shumei Chen, ‘Sham or shame: Rethinking the China milk powder scan- dal from a legal perspective’, Journal of Risk Research, 12,6, 2009, 725–747. 129 The cooperative was a special form of state ownership under the Constitution of the People’s Republic of China, Article 6, which states that ‘[i]n the primary stage of socialism, the State upholds the basic economic system in which the public ownership is dominant and diverse forms of ownership develop side by side.
Shijiazhuang Dairy Company (sdc), Sanlu (‘Three Deer’) grew rapidly in the 1990s into a separate company. Ms Tian Wenhua, a veterinarian who had been sdc’s general manager, was appointed in 1996 as new chairwoman. Born in 1942 into a poor family in Nangang village near Shijiazhuang, she graduated in 1966 from Zhangjiakou Agricultural College (now part of Hebei North University) and then in 1968 went to work for sdc.130 Under her direction, Sanlu became China’s leading dairy processing company. For her contribution to the develop- ment of the company, the city and the province, Ms Tian Wenhua received ‘more than 100’ national and local honours, including a seat on the Chinese People’s Political Consultative Committee and the Hebei Provincial People’s Congress.131 She was both chairwoman of Sanlu and the head of the company’s Communist Party committee.132 Until she was later removed from office, she had worked for Sanlu for almost forty years.133 In 2002 the Shijiazhuang municipal government reformed the structure of the company and converted its net assets into shares, with 92% being sold to Sanlu management and employees.134 I speculate that the municipal Com munist Party of China (cpc) committee was involved in making all decisions
130 See Zhang Xiang, ‘Tian Wenhua, industry leader to disgraced prisoner’, Window of China, www.chinaview.-cn, available at http://news.xinhuanet.com/english/2009-01/22/ content-10704519.htm, last accessed 20 January 2010. Another source reports that Tian Wenhua’s family was ‘marginalised as pro-capitalists’ during the Cultural Revolution: see Grace Ng, ‘Ex-Sanlu boss clawed her way to the top’, The Straits Times, Monday 5 January 2009, available at http://news.asiaone.com/News/Latest%2BNews/Asia/Story/A1Story/20090105 -112478.html, last accessed 20 January 2009. 131 Jenny Fu and Geoffrey Nicoll, ‘The Milk Scandal and Corporate Governance in China’ [hereafter Fu and Nicoll, ‘Corporate Governance’], Canberra Law Review, 10, 3, 2011, 103– 124 at 111. 132 McGregor, The Party, supra note 77, p. 182. On co-optation of successful entrepreneurs into the cpc before and after 2000, when President Zhang Zemin introduced the idea of ‘the three represents ((san ge dai biao), see eg Heike Holbig, ‘The Party and Private Entrepreneurs in the prc’, in Kjeld Erik BrØdsgaard and Zheng Yongnian (eds), Bringing the Party Back In: How China is Governed (Eastern Universities Press, Marshall Cavendish International (Singapore) Private Limited, 2004) (hereafter BrØdsgaard and Zheng, Bringing), 239–268. No data seems to be available about when Tian Wenhua joined the cpc. 133 For a critical review of her career, see Grace Ng, ‘Ex-Sanlu boss clawed her way to the top’, The Straits Times, Monday 5 January 2009, available at http://news.asiaone.com/News/ Latest%2BNews/Asia/Story/A1-Story/20090105-112478.html, last accessed 20 January 2009. 134 Zhang Xu, ‘An Overview of Sanlu’s History’ [Huanyuan Sanlu Qianshi Jinsheng] (in Chinese), Huaxia Times, 20 September 2008, available at http://finance.jrj.com .cn/2008/09/2000072101769.html, cited in Fu and Nicoll, ‘Corporate Governance’, supra note 131, at 106.
135 Chenglin Liu, ‘Profits Above the Law: China’s Melamine Tainted Milk Incident’, Mississippi Law Journal, 2009–2010, 79, 371–417 [hereafter Liu, ‘Profits’] at 378. 136 McGregor, The Party, supra note 77, p. 182. 137 Caijing Magazine, ‘Who owns Sanlu Group?’, available at http://english.caijing.com.cn/ ajax/enspring.html, last accessed 16 September 2013. The same figures are given in two other (overlapping) sources, which however cite a Caijing Magazine report of 2009: see Li PhD thesis, supra note 128 at 132; and John P. Burns, B. Guy Peters, Wang Xiaoqi and Li Jing, ‘Food Policy Coordination in Three Chinese Cities’, paper prepared for the Conference on ‘Regulation in the Age of Crisis’, Third Biennial Conference for the Standing Group on Regulatory Governance of the European Consortium for Political Research ecpr and the Regulation Network, University College Dublin, 17–29 June 2010 [hereafter Burns et al, Dublin], at 18. 138 Li PhD Thesis, supra note 128, at 132. 139 This formal designation is used by the Higher Court of Hebei Province in People’s Procuratorate of Shijiazhuang Municipality v. Shijiazhuang Sanlu Group Co. Ltd. and related persons, appeal rejected on 29 March 2009. I am grateful to Dingmin Liu for trans- lating the judgment into English. See the Equity Joint Venture Law (1979, 1990 revision) and the Equity Joint Venture Law Implementing Regulations (Promulgated by the State Council on Sep. 20, 1983 Amended by the State Council on Jan.15 1986, Dec.21, 1987 Amended by the State Council according to the Decision of the State Council on Amending the Regulations for the Implementation of the Law of the People’s Republic of China on Joint Ventures Using Chinese and Foreign Investment on July 22, 2001, Amended by the State Council on February 19, 2014 according to the Decision of the State Council on Repealing and Amending Some Administrative Regulations). On this type of company form, see Daniel C.K. Chow, The Legal System of the People’s Republic of China (West Nutshell Series, St Paul mn, 2nd edition 2009) [hereafter Chow, Legal System], 376–393.
To stimulate municipal and regional development, Shijiazhuang City and Tanghang City in Hebei Province adopted preferential policies in favour of dairy companies, farmers and investment. They ‘reduced by half, over a five-year period, the local portion of the income tax required for production, dairy product pro- cessing and feed-processing enterprises’. They also exempted investment of more than us$3.75 million from land-use tax and reduced land-rent fees by half.140 Such government subsidies were part and parcel of an intricate set of mutually beneficial relations between company, local Party and local government. Sanlu, as a ‘dragon-head enterprise’, became the ‘largest producer of milk powder, the second largest producer of yogurt, and the fourth largest producer of fresh milk’ in China.141 It was the leading seller of infant formula in China. It was one of China’s top 500 companies and a ‘key enterprise’ for the City and the Province.142 It was also granted a ‘Renowned Chinese Brand Products’ [Famous Brand] Certificate, and in January 2008 it received the National Science and Technology Award for its infant formula.143 Not surprisingly, Sanlu was also the biggest taxpayer in Shijiazhuang. In 2007, it contributed rmb 330 million (about us$48.5 million) in tax revenue to the Shijiazhuang Government.144 Financially as well as politically, Sanlu and the Shijiazhuang Municipal Government were therefore linked very closely indeed. The circular flow of funds via government subsidies and company tax payments benefitted both parties. As Barry Naughton remarked concerning similar business-government rela- tions elsewhere in China,
[e]very aspect of enterprise performance is related in some way to the bargains the enterprise has struck; an enterprise therefore always has someone in the administrative hierarchy to share the blame for unfa- vorable outcomes. Conversely, any unfavorable outcome has a possible
140 Ministry of Agriculture of the People’s Republic of China, Dairy Product Project Office, ‘The supporting policies of the government to promote dairy industry development, part one of the integrated operation report on dairy industry superiority regime’, in Dairy Industry World (Economic Daily Press, Beijing, 2004), 29–31, cited in Dinghuan Hu, ‘China: Dairy Product Quality as the New Industry Driver’, at 7, available at http://www .fao.org/docrep/011/i0588e/i0588e04.htm, last accessed 24 September 2013. 141 Liu, ‘Profits’, supra note 147, at 378. On Sanlu as a ‘dragon-head enterprise, see Jørgen Delman and Yang Minghong, ‘A Value-Chain Gone Awry : Implications of the “Tainted- Milk Scandal” in 2008 for Political and Social Organization in Rural China’, in Ane Bislev and Stig Thogerson (eds), Organizing Rural China – Rural China Organizing, (Lexington Books, Lanham MD, 2012), pp 205–220. 142 Fu and Nicoll, ‘Corporate Governance’, supra note 131, at 111. 143 Li PhD Thesis, supra note 128, at 133. 144 Fu and Nicoll, ‘Corporate Governance’, supra note 131’, at 111. See also McGregor, The Party, supra note 77 p. 182.
remedy somewhere in the bargaining process; some package of con- cessions and benefits is always potentially available. The lack of accountability naturally reproduces the ‘soft budget constraint’ char- acteristic of bureaucratic economies. Pressures to raise efficiency are correspondingly reduced, and destabilizing types of behavior are encouraged.145
Such close relations between business and local government, as later events revealed, make it very difficult for any single institution, except top central Party leaders, to untangle this complex relationship if anything goes seriously wrong.146
The Sanlu Model In 1987 Tian Wenhua initiated a new practice in China’s dairy industry, the out- sourcing of milk production. This was the Sanlu ‘separation’ model, which one author describes as ‘sending cows to villages and bringing the milk back to town’.147 As described by Richard McGregor, former Beijing bureau chief for the Financial Times,
Sanlu lent cows to farmers, who repaid the debt by delivering milk back to the company via a huge network of collection stations and middle- men. In return Sanlu collected a management fee. Instead of producing milk, the company transformed itself from a small local dairy into a milk- marketing giant.148
The Sanlu model became ‘an industry norm’.149
145 Barry Naughton, ‘Hierarchy and the Bargaining Economy: Government and Enterprise in the Reform Process’, in Kenneth G. Lieberthal and David Lampton (eds), Bureacracy, Politics, and Decision-Making in Post-Mao China (University of California Press, Berkeley, 1992) (hereafter Lieberthal and Lampton, Bureaucracy), 245–279 at 277. 146 This does not take account of the question whether such practices were compatible with China’s obligations under wto law in so far as they might have affected international trade, for example through Fonterra’s trading network. 147 Liu, ‘Profits’, supra note 135, at 379. The same author provides (at 378–381) a detailed description of the Sanlu model, its adoption by other leading dairy companies and the resulting fragmentation of milk supply sources. 148 McGregor, The Party, supra note 77 p. 182. 149 Gong Jing and Liu Jingjing, ‘Spilling the Blame for China’s Milk Crisis’, Caijing Magazine, 10 October 2008, available at http://english/caijing.com.cn/2008-10-10/110019183.html, last accessed 15 September 2013.
China’s dairy sector as it developed thus was based on ‘milk processors + milk collecting stations + family based dairy farms’.150 Figure 2.1 shows the Sanlu model in outline; it also includes the corresponding administrative regulatory authorities, which are discussed in more detail later. Chenglin Liu ascribes the adoption of this organizational form directly to governmental economic reforms of State-owned enterprises to separate ownership and management.151 For Sanlu, it saved feed costs of 100 million (us$70 million) per year, while it also increased farmers’ income and local government tax revenue.152 However, it meant that milk processors had no control of hygiene or product quality at any stage of the process before the product reached them. Milk collection stations began in the mid-1990s. Replacing the previously used mobile stations, they were usually located in villages with many dairy cattle. A government license was not required to open a milk station. Many were small, and it seems that more than 50% of all milk stations were small- size milk stations or milk stalls, in which the manager did not have a desig- nated station but collected milk from individual farms.153 On the other end of the spectrum were milk collection centres, sometimes called ‘dairy villages’, which became a well-known type of organization of the market for collecting milk.154 Usually each station catered for about 200 cows.155 Setting up a milk collection station could be expensive, ranging from rmb 200,000 to rmb 300,000.156 Local governments provided land, Sanlu for exam- ple provided training, and funds came from local governments, Sanlu and the
150 Dou Ming Master et al, The Research Report on the Development of the Dairy Industry in China, sec. 5.1 (Beijing Orient Dairy Consultants 2006) (for Albert R. Mann Library of Cornell University), cited in Liu, ‘Profits’, supra note 135, at 379, note 43. 151 Liu, ‘Profits’, supra note 135, at 379. 152 Ibid., at 379. 153 Li, PhD Thesis, supra note 128, at 106. 154 Hans Schiere, Xiaoyong Zhang, Kees De Koning and Huib Hengskijk, ‘China’s Dairy Chains: Towards qualities for the future’, Wageningen ur, September 2007, at 14, available at edepot.wur.nl/38449, last accessed 16 September 2013. Table 3.4.2 at 16 compares four dairy chain modes, showing that the cooperation chain (dairy villages) are characterised usually inter alia by small-scale family farms, unstable milk quality, large quantity as an objective, prices set by processing companies, strong middlemen and weak power of farmers. 155 Changbai Xiu and K.K. Klein, ‘Melamine in milk products in China: Examining the factors that led to deliberate use of the contaminant’, Food Policy, 35, 2010, 463–470 (hereafter Xiu and Klein, ‘Factors’) at 466. 156 Ibid., at 466.
esh milk Yogurt Acidic milky beverage Low end Fr milk Peanut High end Liquid milk Industry and Commerce Bureau (Marketing) Milk powder Dairy enterprises milk (from internal Raw market) milk (from Reconstituted market) international Quality and Technology Quality and Supervision Bureau (production) Milk stations Gap (choose to ignore) The Sanlu model of the Chinese dairy industry note 140, Figure 5.5, at 106; published version available as Li, as Li, 106; published version available Li, PhD Thesis, supra note 140, Figure 5.5, at Source: note 140, Figure 5.5 at 65. supra note 140, Figure 5.5 at Policy Coordination,
wder Chain wder Agriculture Bureau (development) Small farms Large farms markets International Individual farmers Milk Po Regulation Figure 2.1
157 Gong Jing, ‘Hebei Dairy’s Messy Supply Chain’, Caijing Magazine, 22 September 2008, available at http://english.caijing.com.cn/2008-09-22/110014641.html, last accessed 21 September 2013. This article provides a good overview of developments. 158 See Dinghuan Hu, ‘China: Dairy Product Quality as the New Industry Driver’, at 7, avail- able at http://www.-fao.org/docrep/011/i0588e/i0588e04.htm, last accessed 24 September 2013 [this document is not paginated] (hereafter Hu, ‘Driver). 159 Li, PhD Thesis, supra note 128, at 144. 160 Xiu and Klein, ‘Factors’, supra note 155, at 466. 161 Hans Schiere, Xiaoyong Zhang, Kees De Koning and Huib Hengskijk, ‘China’s Dairy Chains: Towards qualities for the future’, Wageningen ur, September 2007, at 14, available at edepot.wur.nl/38449, last accessed 16 September 2013. 162 Xiu and Klein, ‘Factors’, supra note 155, at 466. 163 Li, PhD Thesis, supra note 128, at 107 and note 16.
When the market consisted of a few dairy companies, processors could refuse milk; this power imbalance was accentuated if the dairy company enjoyed a monopoly in its area, as with Sanlu in the Hebei market. But as pro- duction increased and more companies entered the processing market, it became a sellers’ market. Farmers continued to have little bargaining power, and processing companies, such as Sanlu, competed increasingly for raw milk from milk collection stations. I speculate that the establishment of the joint venture with Fonterra accentuated competition. These economic changes were reflected in the legal organization of social relations in the dairy products chain. Changes in ownership of milking stations and the reorganization of contracts linking the different parts of the chain went hand-in-hand with the redistribution of risks. As the Australian scholar Michael Webber reported from a detailed study of Beidalaban, Hohot, Inner Mongolia:
In 2002 the contractual links were reorganised. Contracts are now between farmers and milking stations and between milking stations and processing companies. For an investment of rmb 0.5–1 million, private individuals bought the former milking stations or built new ones. Farmers contract with the milking stations to milk their cows, using their own labour (supervised by the milking station manager). The stations pay the farmers and provide agro-veterinary services, but do not provide loans for farmers to buy cows: loans are far harder to get than previously. Milking stations earn a fixed fee of rmb 0.2 per kg of milk supplied, for which they supply facilities and labour and bear the financial and quality risks previ- ously borne by the companies.164
Reversing the earlier balance of power in the milk marketing chain, milk col- lection stations grew stronger at the expense of farmers and, more surprisingly perhaps, at the expense of processors. Subsequent events reinforced this gradual shift in the balance of power. Far from being tightly integrated, each part of the dairy sector, from farmers through milk collection stations to milk processors, was highly fragmented, like shifting sands. Not only was it difficult to regulate. In addition, we might hypothesise, the allocation of power within the sector was relatively fragile and subject to change. Until 2007, the dairy market had been a buyers’ market,
164 Michael Webber, Making Capitalism in Rural China (Edward Elgar Publishing Ltd, Cheltenham, 2012) (hereafter Webber, Making Capitalism), Chapter 2, ‘Rich Wang’s Village: marketing the dairy economy’, 18–45, at 31.
165 Li, PhD Thesis, supra note 128, at 106. The author relies on data from the Ministry of Agriculture. 166 Xiu and Klein, ‘Factors’, supra note 155, at 465–466. On the role of foreign investment in these companies, see Hu, ‘Driver’, supra note 158, at 7. 167 On Mengniu, see ‘Mengniu Dairy’ at http://en.wikipedia.org/wiki/Mengniu_Dairy, last accessed 3 March 2014. Following the melamine crisis, however, the state became the larg- est shareholder when in July 2009 Mengniu sold 20% of its shares to the state-owned consortium China National Oils, Foodstuffs and Cereals Corporation, which long has been China’s biggest food importer and exporter: see ibid. On Yili see ‘Yili Group’ at http:// en.wikipedia.org/wiki/Yili_Group, last accessed 3 March 2014. 168 On Bright Dairy, see ‘Bright Food’ at http://en.wikipedia.org/wiki/Bright_Food, last accessed 3 March 2014. As of February 2014, Bright Food was China’s third largest dairy producer by revenue and was actively seeking to increase its international assets from 12% to 25% of total assets in third years time: see Scheherazade Daneschkhu, ‘Bright Food hungry for buys’, Financial Times (London), Tuesday, 11 February 2014, p. 16.
…there were numerous underground workshops which were unlicensed and operated beyond government supervision. The government did not yet have effective measures to eliminate these ‘underground’ workshops. The owners of these ‘underground’ factories and workers disappeared when supervisory agencies investigated. They did not have any good equipment, and did not lose much by disappearing in such a manner. When the investigation ended, they resumed illegal production. Local quality supervision agencies understood the problem but lacked effective ways to deal with it. Instead, they were satisfied to occasionally crack- down on underground factories and report that to upper levels of government.169
Such practices were responsible for the Fuyang city milk powder incident in 2003, when more than 60 babies died from ‘big head disease’ and another 100– 200 babies suffered malnourishment but survived after consuming substan- dard infant formula, rich in starch and sugar but lacking sufficient protein.170
The Race to the Bottom Domestically, the Fuyang incident171 provoked the first discussion of the pos- sible enactment of a food safety law in China. It also stimulated what, with the benefit of hindsight, proved to be short-sighted business and government poli- cies. Transnational and domestic social fields intersected in complex ways in the transformation of the dairy sector. They affected supply, demand and prices for melamine, milk and dairy products alike. Leading dairy processing firms, as already noted, engaged in various trans- national strategies to improve their market share. Increasing straddling the domestic and international arenas, milk processors dramatically upgraded their facilities starting in 2005, partly by government subsidies, partly through
169 Li, PhD Thesis, supra note 128, at 104–105. 170 Among many reports, see Li, Policy Coordination, supra note 128, 63–80; Xinhua, ‘“Killer” milk powder probe continues, 31 arrested’, China Daily, 17 May 2004, 11:19, available at http://www.chinadaily.-com.cn/english/doc/2004-05/17/content_331352.htm, last accessed 28 January 2014; Xinhua, ‘47 people detailed for fake milk powder’, China Daily, 17 May 2004 16:16, available at http://www.chinadaily.com.cn/english/-doc/2004-05/17/ content_331404.htm, last accessed 28 January 2014; ‘Chinese babies die from “fake milk”’, http://news.bbc.co.uk/2/hi/asia-pacific/3641475.stm, last accessed 28 January 2014; Weijie Wang, ‘The Decline of Social Capital in Urban China’, in Carol Camp-Yeakey (ed), Living on the Boundaries: Urban Marginality in National and International Contexts (Emerald Group Publishing Limited, Bingley, uk, 2012), 490–510 at 501. 171 On the Fuyang incident, see Li, Policy Coordination, supra note 128, pp. 65–78.
Table 2.1 Milk production in China, 2002–2010
Year Volume in millions of tonnes
2002 13 2003 17.3 2004 22.6 2005 27.5 2006 31.9 2007 35.3 2008 35.6 2009 35.2 2010 35.8
Source: World Trade Organization, Trade Policy Review Body, Trade Policy Review, China, Report by the Secretariat, Revision. WT/TPR/S/264/Rev.1, 20 July 2012, p 99 Table iv.2, ‘Volume of agricultural production for selected agricultural products, 2003–2010 (million tonnes), Milk, WT/TPR/S/264/Rev.1, 20 July 2012, based on data from the National Statistics Bureau, People’s Republic of China.
172 Tim Hunt, Hayley Moynihan, and Mark Voorbergen, ‘Rabobank Global Dairy Outlook: Enter the Giants’, at 3 Figure 1.1 wmp Prices [for Dairy Products] fob Oceania 1996–2010 (in usd), at 3, (Rabobank International Food and Agribusiness Research & Advisory, November 2010), available at http://www.rabobank.de/uploads/-media/Rabobank_Global _Dairy_Outlook_November 2010_01.pdf, last accessed 28 January 2014.
Milk-processing companies mainly competed over access to milk from contracted farmers or milking stations; so, given lax inspection, they had no incentive to demand high quality from their suppliers. Apparently squeezed between YiLi and MengNiu, for example, Sanlu started buying lower-quality milk, turning a blind eye to hygiene and quality standards in milk collection stations. In turn, in a sellers’ mar- ket and without effective inspection, milk collection stations were cheap to buy and run: stations in Beidaolaban were operated by peas- ants who had little education but could raise money from their previ- ous exploits or from friends and relatives. They did not have to control or raise the quality of milk they supplied to processors. Since milking stations made no demands for quality and farmers had no way to demonstrate the quality of their milk (in most milking stations, the milk from all farmers is pooled), the farmers, in their turn, had no incentive to raise the quality of milk. Under income pressure to cut costs and generally lacking a technical education, farmers were at the end of a lack-of-quality chain.174
The result was a ‘race to the bottom’. Intense competition was exacerbated by central government policy. In 1999, the Chinese central government had established a quality exemption system. The Decision of the State Council Concerning Several Issues on Further Strengthening Product Quality Work175 was intended to promote a national
173 Burns et al., ‘Dublin’, supra note 137, at 18. 174 Webber, Making Capitalism, supra Chapter 1 note 164, at 37–38. 175 Issued by Document Guofa No. 24 [1999] of the State Council on December 25, 1999, cited in Liu, ‘Profits’, supra note 135, at 382, note 62.
176 Xiao Tong, Quxiao Mianjian Shifou Hui Fuhuo Difangbaohu [The Repeal of Quality Inspection System is Feared to Revive Local Protectionism], Zhongguo Qingnian Bao [China Youth Daily], 10 October 2008, cited in Liu, ‘Profits’, supra note 147, at 382, note 63. 177 Liu, ‘Profits’, supra note 135, at 381. 178 Yuangfeng Zhao, Ruijin Zhang and K.K. Klein, ‘Perceived information needs and avail- ability: results of a survey of small dairy farmers in Inner Mongolia’, Information Research, 14, 3 September 2006, Paper 411, pp. 8–9, available at http://informationr.net/ir/14-3/ paper411.html, last accessed 15 September 2013. 179 Ibid., pp. 8–9. 180 Ibid., pp. 12 and 16. 181 The Measures of the National Development and Reform Commission for the Practice of Temporary Price-Intervention Measures on Some Important Commodities and Services
Melamine in Baby Formula The consequences should have been predictable. Caijing Magazine asked:
What’s in the milk? Industry insiders told Caijing that it started with add- ing water and alkali, and later progressed to animal and plant protein powders that contain melamine… When the price of dairy products slid further in 2008, milk station workers started to add melamine directly to the milk.183
After Fuyang, as one specialist researcher observed, the government ‘began to emphasize the protein content of raw milk, and I speculate that adulteration of illegal additives began to prevail in a household farming mode’.184 According to a who study, water or alkali was added to raw milk to increase volume, though this diluted the original protein content, and then animal or plant protein pow- der containing melamine was added to increase nitrogen content, since the
(issued by State Development and Reform Commission, Order of the National Devel opment and Reform Commission (No.58)) (Promulgated and came into force on January 15th, 2008). 182 Chinoy states that ‘Milk producers regularly paid bribes to testers and milk station man- agers to take the poor quality milk’: Daniel Chinoy, ‘Black-hearted Products: The Causes of China’s Food Safety Problems’, Columbia East Asia Review, 2, Spring 2009, 20–36, at 31, available at http://www.eastasiareview.org/issues/2009/articles/-Chinoy_Daniel.pdf, last accessed 23 September 2013 (hereafter Chinoy, ‘Black-Hearted Products’). 183 Gong Jing, ‘Hebei Dairy’s Messy Supply Chain’, Caijing Magazine, 22 September 2008, available at http://english.caijing.com.cn/2008-09-22/110014641.html, last accessed 21 September 2013. 184 Li, PhD Thesis, supra note 128, at 105. Note that this estimate of the starting date for such additives coincides with the estimate by Caijing Magaine, discussed later.
Table 2.2 Capacity and volume of domestic melamine production in China, 2001–2010 (in 10,000 tonnes)
Year Capacity Volume of production
2001 19 13 2002 22 11 2003 30 23 2004 34.6 25.4 2005 42.8 32.1 2006 60.9 41.6 2007 89.6 58.8 2008 95 62 2009 105 62 2010 110 66
Source: Calculated by Lu Yi from online resources, mostly from chemical websites with other data from government websites and social media websites, including http://www.ccin.com.cn/ccinv/; http://www.jxhg.gov.cn/; http://chem.cmrc.cn; http://www.foodprc.com/; http://stock.asiafinance.cn/; http://dcj.mofcom.gov.cn; http://news.sina.com.cn/, etc.
185 World Health Organization, ‘Questions and Answers on Melamine’, available at http:// www.who.int/-csr/media/faq/QAmelamine/en/, last accessed 13 September 2013; see also Burns et al.’, Dublin’, supra note 137, B, at 17. 186 This statement was reported to have been made by Chen Lianfang of the Beijing Orient Agribusiness Consultant Company: Jerry A. Grunor, Enough to Make You Sick …: Tained and Counterfeit Imports (iUniverse, Inc., New York and Bloomington in, 2009), p. 297. See also Chen Lianfang, ‘China’s tainted formula shows risks of dairy boom, Kentucky New Era [Hopkinsville ky], Friday, 19 September 2008, p A4, available at http://news.google.com/ newspapers?nid=266&dat=20080919&id=L6s0AAAAIBAJ&sjid=62wFAAAAIBAJ &pg=5382,1012235, last accessed 16 January 2015. 187 Wang, ‘Surplus’, supra note 18, p. 20.
The effects of over-production on the price and availability of melamine on the domestic market were accentuated by the world recession, a slowdown in the domestic real estate market in China and eu and other anti-dumping measures, all of which depressed prices and increased domestic stock. I spec- ulate that the proposed dsm – cnooc joint venture also stimulated further concerns about increased competition. By 2008 China had 26 main producers of melamine, with a reported total capacity of 722,000 tonnes and a volume of production of 467,100 tonnes, though other sources give total capacity above 800,000 tonnes and production volume around 550,000 tones;188 the balance of total domestic production came from smaller producers. Most were located in the provinces of Hebei, Henan, Shanxi, Shandong and Sichuan.189 Caijing Magazine also reported that milk stations were not alone in deliber- ate adulteration of milk, because it was most likely that melamine was added at every stage from farmers to milk stations to processing companies.190 Evidence suggests that processors of raw milk accepted and sold milk which they knew to be of poor quality. Xiu and Klein’s detailed account is more spe- cific and more damaging. They state that ‘[a]pparently, executives at Sanlu allowed their own dairy farms [sic: milk collection stations] to add water in raw milk while knowing that the content of protein could not be reduced. This means that they informally allowed their milk farms [sic: milk collection sta- tions] to add melamine to the milk’.191 Burns et al state that ‘Dairy enterprises clearly knew about the various quality levels of raw milk during collection and where to sell these different grades of products’. In a sellers’ market, they no longer refused low quality milk, which then was used ‘to make low quality
188 See statistics given on http://chem.cmrc.cn and other internet sources. 189 See cmrc news, ‘Melamine Price Will Fluctuate Around Cost Price in 2009’ [2009 Nian Sanjuqingan Jiage Jiangzai Chengbenjia Shangxia Bodong] [in Chinese], at http://chem .cmrc.cn/shangqing/201012/29-16122.html, last accessed 5 February 2015. 190 Gong Jing, ‘Hebei Dairy’s Messy Supply Chain’, Caijing Magazine, 22 September 2008, available at http://english.caijing.com.cn/2008-09-22/110014641.html, last accessed 21 September 2013. 191 Xiu and Klein, ‘Factors’, supra note 155, at 46, referring to Zhu Feng, Yang Chouyong and Zhang Honghe, ‘Tracing Back to the Sanlu Poisonous Milk Powder: How Sanlu Glosses over the Fact’, available at http://www.chinanews.com.cn/cj/kong/news/2009/01-01/ 1513271.shtml. See also Francis Sun, ‘Sanlu Group and the Tainted Milk Crisis’, paper number 9B09M077 written under the supervision of Professor Shih-Fen Chen, Richard Ivey School of Business, University of Western Ontario, (Ivey Management Services, 2009), p. 6, available at http://www.asiapacific.ca/sites/default/files/sanlu.pdf, last accessed 26 January 2015.
192 Burns et al., ‘Dublin’, supra note 137, at 19. 193 Gong Jing and Liu Jingjing, ‘Spilling the Blame for China’s Milk Crisis’, Caijing Magazine, 10 October 2008, p. 1 available at http://english.caijing.com.cn/2008-10-10/110019183.html, accessed 29 March 2012: ‘You just need to make a call, and then someone will send the stuff (melamine) to your home’. 194 McGregor, The Party supra note 77, p. 185. 195 See 21 Century Economy Reports news story, ‘Deputy-Governor of Hebei: Law Offenders Began to Add Melamine to Raw Milk From Two Years Ago’ [Hebei Sheng Fusheng Zhang Toulu: Bufa Fenzi 2005 Nian Yi Kaishi Xiang Niunai Chan Sanju Qingan] [in Chinese], at http://news.cnfol.com/080918/101,1280,4781164.-00.shtml, Caijin Magazine, as cited in Fu and Nicoll, ‘Corporate Governance, at 108, note 22. See also [no identified author], ‘Milk may have been contaminated since 2005’, The New Zealand Herald, Friday 19 September 2008, available at http://www.nzherald.co.nz/fonterras-chinese-milk-scandal/news/article .cfm?c_id=1502761&objecti-d=10532997, last accessed 3 May 2014; Lincoln Tan and Andrew Koubaridis, ‘Govt helps Fonterra protect its directors’, The New Zealand Herald, Saturday 20 September 2014, available at http://www.nzherald.-co.nz/fonterras-chinese-milk-scandal/ news/article.cfm?c_id=1502761&objectid=10533201, last accessed 3 May 2014. 196 See Xiu and Klein, ‘Factors’, supra note 155, at 464 and sources cited there. 197 See ‘Contaminated milk kills fourth baby, Allegations dosing began the year Fonterra bought stake’, available at http://www.stuff.co.nz/the-press/635611/Contaminated-mil -kills-fourth-baby, last accessed 1 April 2012.
198 Xiu and Klein, ‘Factors’, supra note 155, at 467. 199 Randall Lutter, ‘Addressing Challenges from Economically-motivated Adulteration of fda Regulated Products’, United States Food and Drug Administration, Washington, dc, 2008, available at
The Third World of Melamine
Introduction Central government belonged to the third world of melamine. The world of government, regulation and law is the focus of this section, which explores the responses to the melamine crisis by the Chinese party-state, both local and national. The discussion aims, so far as possible, to understand the melamine crisis from the perspective of the regulators. It gives special emphasis to party- state institutions, ideologies and legal processes and norms. On the basis of this discussion, the following section of the chapter considers the role of the legal system in more detail. From this perspective, the leitmotif of the third world of melamine was to preserve social stability. The main priority of any government is to remain in power, of course, but China also has specific features.204 Social stability has long been a central theme of Chinese history, psychology and culture.205 Furthermore, since the foundation of the People’s Republic of China in 1949, the preservation of stability has been very well-developed as a political dis- course, ideology and practice. A succession of Chinese leaders has stressed the priority of social stability (wéiwěn, 维稳, short for wéihù wěndìng, 维护稳定,
inspection, quarantine and supervision management by the relevant agency at the place of arrival, or ‘foods which have caused food poisoning accidents or on which there is evidence of likeliness to cause food poisoning accidents, and their production or operation locations, where it is necessary to further carry out port hygienic supervision, investigation or dis- posal’. See Administrative Measures for Entry-Exit Inspection and Quarantine Seals, pro- mulgated 3 April 2000, entry into force 1 May 2000, available at http://law.e-to-china.com/ index_content-id-f64b404bff3f8f7a566b83c967aa38131.html, accessed 29 March 2012. The quotation is from Article 8 of the Measures. 204 On the question of cultural distinctiveness, see Andrew J. Nathan, ‘Is Chinese Culture Distinctive? A Review Article’, The Journal of Asian Studies, 52, 4, November 1993, pp. 923–936. 205 See e.g. Lucien Pye, The Dynamics of Chinese Politics Oelgeschlager, Gunn & Hain, Cambridge ma, 1981), pp. 208–213; Michael Harris Bond (ed), The Psychology of the Chinese People (Chinese University Press, Hong Kong, 1986). For a business perspective, see Tim Clissold, Chinese Rules: Mao’s Dog, Deng’s Cat and Five Timeless Lessons for Understanding China (William Collins, London, 2014), 107–108.
‘stability maintenance’ or ‘stability preservation’).206 As early as 1974, Mao Zedong emphasized ‘stability and unity’ (āndìng tuánjié 安定团结); in the late 1980s Deng Xiaoping articulated the slogan ‘stability overrides everything’ (wěndìng yādǎo yíqiè 稳定压倒一切); in 1997 Jiang Zemin postulated that ‘without stability, nothing can be achieved’ (méiyǒu wěndìng, shénmeshì yě gànbùchéng 没有稳定，什么事也干不成) and in the years 2002–2012 Hu Jintao put forward the concept of ‘harmonious society’ (héxié shèhuì, 和谐社 会). Since 1978, domestic reforms have been the main policy priority for China’s leaders, and the preservation of stability is an essential precondition to the success of these reforms.207
The Party-State Two principal features of the Chinese system of government played a central role in ensuring, so far as possible, social stability in the melamine saga. Both were crucial in shaping the governmental responses to the melamine crisis and
206 Much of the remainder of this paragraph is based on Maurizio Marinelli, ‘Jiang Zemin’s Discourse on Intellectuals: The Political Use of Formalised Language and the Conundrum of Stability’, Journal of Current Chinese Affairs, 2, 2013, 111–140 at 112–114, and Feng Chong Yi, ‘Preserving Stability and Rights Protection: Conflict or Coherence’, Journal of Current Chinese Affairs, 2, 2013, 21–50 at 22–29. This issue of the Journal of Current Chinese Affairs is a special issue on ‘Preserving Stability: Process, Dimensions and Ideological Exercise’. I am grateful to Dr José Luis de Sales Marques for drawing it to my attention. See in par- ticular the general introduction by Feng Chongyi, ‘The Dilemma of Stability Preservation in China’, Journal of Current Chinese Affairs, 2, 2013, 3–19. On relations between govern- mental institutions and stability maintenance, see Thomas Heberer and Gunter Schubert, Regime Legitimacy in Contemporary China: Institutional Change and Stability (Routledge, London, 2009) and Barbara J. Sinkule and Leonard Ortolano, Implementing Environmental Policy in China (Praeger, Westport,Connecticut, and London, 1995) (hereafter Sinkule and Ortolano, Implementing), at 177–178. 207 For a capsule summary of and references concerning the debate about the importance of ‘order’ or ‘avoiding chaos (luan)’, see Kenneth Lieberthal, Governing China: From Revolution Through Reform (W.W. Norton & Company, London and New York, 1995, 2nd edition 2004) (hereafter Lieberthal, Governing), p. 293 and note 11. See also David M. Lampton, The Three Faces of Chinese Power: Might, Money, and Minds (University of California Press, Berkeley, 2008), pp. 247–251. For examples, see Peter Sandby-Thomas, Legitimating the Chinese Communist Party Since Tiananmen: A Critical Analysis of the Stability Discourse (Routledge, London, 2011). See also Flora Sapio, ‘The Invisible Hand of Government: The Conceptual Origins of Social Management Innovation’, in Susan Trevaskes, Elisa Nesossi, Floria Sapio and Sarah Biddulph (eds), The Politics of Law and Stability in China (Edward Elgar, Cheltenham, 2014), pp. 244–267 at 247–249 (hereafter Trevaskes et al., Politics).
208 The following sentences draw partly on my article ‘Foreword: China as a Laboratory for Legal Change’, published as the Foreword to Qianlan Wu, Competition Laws, Globalisation and Legal Pluralism: China’s Experience (Hart Publishing, Oxford, 2013), also available on ssrn at http://papers.ssrn.com/sol3/papers.cfm-?abstract_id=2319736, last accessed 10 January 2014. 209 According to Shiping Zheng, Party vs. State in Post-1949 China: The Institutional Dilemma (Cambridge University Press, Cambridge, 1997) (hereafter Zheng, Party), 9–12, who argues however that the concept is now out of date. See also Zou Keyuan, China’s Legal Reform: Towards the Rule of Law (Martinus Nijhoff Publishers, Leiden and Boston, 2006) (hereafter Zou, Reform) 43–72. For basic documents, see Constitution of the People’s Republic of China, Article 1 (Adopted at the Fifth Session of the Fifth National People’s Congress of the People’s Republic of China and Promulgated for Implementation by the Proclamation of the npc on 4 December 1982 (Foreign Languages Press, Beijing, 5th edition (with Chinese text) 2004); Constitution of the Communist Party of China, General Program (Foreign Languages Press, Beijing, 2001). 210 Zheng, Party, supra note 209, p. 9. See also Zou, Reform, supra note 209, pp. 43–72. 211 See further Yang Fengchun, Chinese Government (Foreign Languages Press, Beijing, 2004); BrØdsgaard and Zheng, Bringing, supra note 132; David Shambaugh, China’s Communist Party: Atrophy and Adaptation (University of California Press, Berkeley ca, and Woodrow Wilson Center Press, Washington dc, 2008); Zheng Yongnian, The Chinese Communist Party as Organizational Emperor: Culture, Reproduction and Transformation (Routledge, New York, 2010) (hereafter Zheng, Organizational Emperor); McGregor, The Party, supra note 89. 212 Susan L. Shirk, ‘The Chinese Political System and the Political Strategy of Institutional Reform’, in Lieberthal and Lampton, Bureacracy supra note 155, 59–91, at 61. 213 I prefer the ‘property rights owner [of the country]’/‘manager of the State’ analogy used by Zheng, Organizational Emperor, supra note 208, pp. 98–99.
214 On Roman law origins, see W.W. Buckland and Arnold D. McNair, Roman Law and Common Law: A Comparison in Outline (Cambridge University Press, Cambridge, 2nd edi- tion revised by F.H. Lawson, 1965), 217–221, 307–310. 215 For an overview, see Gary J. Miller, ‘The Political Evolution of Principal-Agent Models’, Annual Review of Political Science, 8, 2005, 203–225. 216 From a constitutional perspective, Backer remarks that ‘current constitutional realities… are…that state organs do not define the entirety of national power, that the constitution distinguishes between state power (vested in the state organs) and national political power (vested in the ccp), that while the elaboration of state power may be bureaucra- tized within well institution[s] the elaboration of political power remains outside either institution or bureaucracy, that the institutionalization of the ccp’s own governance is internal to it and beyond the direct regulatory power of the constitution’: Larry Catá Backer, ‘A Constitutional Court for China Within the Chinese Communist Party: Scientific Development and the Institutional Role of the ccp’, Consortium for Peace & Ethics Working Papers, No. 2008-11/1 (November 2008), at 7, available at http://ssrn.com/ abstract=1308598, last accessed 10 June 2013 (hereafter Backer, ‘Constitutional Court’). See also Larry Catá Backer, ‘The Party as Polity, The Communist Party, and the Chinese Constitutional State: A Theory of State-Party Constitutionalism’, Journal of Chinese and Comparative Law, 16, 1, 101–168, electronic copy available at http//ssrn.com/ abstract=1325792. 217 See Hon S. Chan, ‘Cadre Personnel Management System in China: The Nomenklatura System, 1990–1994’, China Quarterly, 179, 2004, 703–734; Lieberthal, Governing, supra note 207, 234–239. Chan gives relevant lists of positions in Appendix I: Job Title List of Cadres Centrally Managed by the Chinese Communist Party, 1998 and Appendix ii List of Cadre Positions to be Reported to the Chinese Communist Party Centre, 1998, at 719–727 and 727–734, respectively. See also Kjeld Erik Brødsgaard, ‘Management of Party Cadres in China’ in Brødsgaard and Zheng, Bringing, supra 132 note pp. 57–91. For earlier studies, see eg John P Burns, ‘China’s Nomenklatura System’, Problems of Communism, 36, September- October 1987, 36–51. On the ‘soft centralisation’ of nomenklatura appointments, see Andrew C. Mertha ‘China’s “Soft” Centralization: Shifting Tiao/Kuai Authority Relations’,
On the basis of the system as it operated in 1998, the fact that a position, for example a mayor of a city, is not appointed directly by central authorities but must only be notified does not amount to a strict separation between party and government.218 Third, virtually all officials at every level of government and in many business and other organisations are cpc members. This organizational feature has been defined as ‘same group of people working for same things under two different plates’ (yítào bānzi, liángkuài páizi一套班子两块牌子).219 Whether government and other officials are centrally appointed, or their appointment must only be notified, or they are simply appointed at local level is certainly important for some purposes, but it should not be over-emphasised in describing relations between Party and government with regard to the melamine crisis. Third, ‘there is no such thing as government policy indepen- dent from the ccp’, as a leading Chinese scholar points out.220 This observa- tion, while perhaps compatible with principal-agent theory, is more consistent with a theoretical position that posits closer relations in which the cpc is imbricated in government, both always in terms of general policy direction and often in daily affairs. Fourth, the Party domination over the state is not
The China Quarterly, 184, December 2005, 791–810 at 799–780 (hereafter Mertha, ‘Soft Centralization’). 218 However, Pierre F. Landry concluded that party institutions, though powerful, are not necessarily efficient, and other political motivations, not just central government eco- nomic priorities, are most important in shaping mayoral performance: Pierre F. Landry, ‘The Political Management of Mayors in Post-Deng China’, in BrØdsgaard and Zheng, Bringing, supra note 144, at 165. See also Maria Edin, ‘Remaking the Communist Party- State: The Cadre Responsibility System at the Local Level in China’, in Brødsgaard and Zheng, Bringing, supra note 132, 175–191. 219 Wei Luo, Chinese Law and Legal Research (William S. Hein & Co., Inc., Buffalo, New York, 2005), 16–17. 220 Zhu Suli, ‘Political Parties in China’s Judiciary’, Fifth Annual Herbert Bernstein Memorial Lecture in International and Comparative Law, 2 November 2006, published as Duke Law Center for International and Comparative Law Occasional Papers (CiCLOPs), Volume 1, June 2009, 85–110 at 89–90, available at www.law.duke.edu/cicl/ciclops, last accessed 30 March 2013 (hereafter Zhu, ‘Political Parties’). The same author points out (at 87) that ‘the ccp inherited the political tradition, initiated by Sun Yat-sen and pursued by the gmd, comprised of “a party construction of the state”, “party rule of the state” and “party above the state”’. He argues (at 89) that ‘its influence is ubiquitous at every level and in every aspect of contemporary Chinese society…’. See also Zhu Suli, ‘“Judicial Politics” as State- Building’, in Stéphanie Balme and Michael W. Dowdle (eds), Building Constitutionalism in China (Palgrave Macmillan, New York, 2009), 23–36; and Zhu Suli, ‘The Party and the Courts’, in Randall Peerenboom (ed), Judicial Independence in China: Lessons for Global Rule of Law Promotion (Cambridge University Press, Cambridge, 2010), 52–68.
Bureaucratic Networks These remarks might suggest a highly centralized system of decision-making, policy-making and implementation and application of law and other norms. In fact, the contrary is usually the case. As many scholars have shown,224 the processes of governing in China are extremely fragmented, and government by consensus through intra-bureaucratic bargaining is often the rule in practice. This is what scholars have called ‘management by exception’, according to which decision-making is referred to the highest level only if lower-level authorities cannot agree.225 This pattern of institutional relations character- ized the melamine crisis.
221 Zheng,Organizational Emperor, supra note 211, p. 100. 222 For example, Sinkule and Ortolano noted that ‘The extent to which the Party organization has direct influence over matters concerning environmental policy is an open question. Although it is difficult to separate the influence of the Party from that of the State, it appears that the Party’s influence on environmental protection is generally exerted through the state administration. This is not to say that the influence of the Party on environmental protection is minor’, since…many leaders are [Party] members and are influenced by the ideas and attitudes of the Party’ and ‘while the ccp does not seem to play a direct role in environmental policy making, Party approval is a critical source of legitimacy’ and facilitates implementation of policies: see Sinkule and Ortolano, Implementing, supra note 206, p. 11. 223 For the argument that the cpc represents the highest authority of constitutional review within the Chinese party-state and that a special constitutional court should be estab- lished within the cpc for judicial review of constitutional questions, see Backer, ‘Constitutional Court’, supra note 228). This would appear to be consistent with Zhu Suli’s argument that ‘in studying contemporary China, one must treat either the gmd [Guomindang] or cpc as a constituent element of the political and legal system or as a constitutional structure’: Zhu, ‘Political Parties’, supra note 220, at 109. 224 Among the first was Franz Schurmann, Ideology and Organization in Communist China (University of California Press, Berkeley, 2nd edition 1971 [originally published 1966]) (hereafter Schurmann, Ideology). 225 See Lieberthal and Oksenberg, Policy Making, supra note 26, 23–24; Susan Shirk, The Political Logic of Economic Reform in China (University of California Press, Berkeley, 1993),
A second feature of the Chinese governmental system that was oriented toward the preservation of social stability, in addition to the party-state, con- sisted of different types of bureaucratic networks or arrangements. One type comprises the existence of multiple xitong. Since the 1950s,226 despite reforms, the cpc has exercised control over government by means of hierarchically organized xitong (xìtǒng 系统). In English-language scholarship, xitong have been variously characterized as ‘administrative systems’,227 ‘functional systems’,228 ‘functionally defined systems’,229 ‘bundles of bureaucracies’,230
116–117. At least in general outline, this method of decision-making resembles that of the European Union in relations between the Committee of Permanent Representatives (CoRePer) and the Council of Ministers. One may speculate that it is frequently used in decision-making involving hierarchically arranged bureaucratic systems in which at least the lower level consists of multiple bodies. 226 On the origins of xitong, at least since 1949, David Bachman, Bureaucracy, Economy, and Leadership in China: The Institutional Origins of the Great Leap Forward (Cambridge University Press, Cambridge, 1991) (hereafter Bachman, Great Leap), at x-xi, writes that ‘these institutions and interests are results of the dynamics of China’s relative economic poverty and the original missions of these organizations. Coalitions of interests and insti- tutions formed because individual bureaucracies were seldom powerful enough to advance and defend their specific interests. With the help of senior leaders charged with overall supervision in each major area of endeavor, there emerged a broad tendency, or program of policies, around which groups of bureaucracies could organize themselves. Because the tasks and the resource environment in which these organizations operate have not changed fundamentally since 1949, these coalitions and their interests have also persisted with little change’ [at least up to 1991, the date of writing]. So far as I have been able to ascertain, this system did not originate in the Qing dynasty: see Thomas A. Metzger, The Internal Organization of the Ch’ing Bureaucracy (Harvard University Press, Cambridge ma, 1973). 227 Zheng, Organizational Emperor, supra note 211, p. 109 and passim. The author notes (at 110) that these functional systems operate at every level, and that the administrative system is sub-divided into smaller secondary system, eg sport and public health, finance and econ- omy, science and technology, etc, 228 Biddulph, Detention, supra note 20, p. 16, note 65, writes that ‘bureaucracy is organised into functional systems called xitong (系统) which are headed by a leadership small group (lingdao xiaoxu 领导小旭) responsible for policy making’. On leadership small groups, see Lieberthal, Governing, supra note 207, pp. 215–218; Zheng, Organizational Emperor, supra note 211,), p. 107–109. 229 Sinkule and Ortolano, Implementing, supra note 206, at 13. 230 [No named author], ‘The Dynamics of Threat in the Vertical Hierarchy of the People’s Republic of China’, available at http://www.smithsbluebook.com/dynamics.html, last accessed 9 May 2014, uses the term ‘bundles of bureaucracies’.
‘hierarchical unified bureaucratic network or system[s]’231 ‘coalitions of bureaucracies’ that run parallel to the hierarchically organized governmental organisations’,232 or ‘systems, sometimes called “silos” or “stovepipes” [which are] vertically integrated systems in government, industry, and other areas of society’, or ‘system’ … ‘a group of bureaucracies that together deal with a broad task the top political leaders want performed’.233 Zheng Yongnian defines xitong as meaning that ‘society is divided into different functional spheres, and corresponding party organs and cadres supervise and control these systems, which encompass the entire political and social leadership at each level’.234 He also points out that:
Xitong are also different from the administrative counterpart depart- ments in the Party. The Party leadership in the xitong are usually not part of the formal, legally organizational structure, and in general, Party lead- ers’ names are not publicized while the Party’s administrative counter- part departments are part of the formal and legal structure. Also, […] the Party’s administrative counterpart departments have a limited function, that is, to oversee a specific administrative agency. In contrast, one xitong often oversees several related governmental ministries, departments and agencies.235
231 Mark Dougan, A Political Economy Analysis of China’s Aviation Industry (Routlege, London, 2002) (hereafter Dougan, Aviation), p. 11. 232 Bachman, The Great Leap, supra note 226, at page x. He writes (at 45–46) that ‘These were networks of bureaucratic agencies with responsibilities in the same general area. These xitong form the starting point for bureaucratic coalitions in China’ 233 Lieberthal, Governing, supra note 207, 218. The work deals (at 218–233) with the six major xitong as of 2004: Party Affairs (dangwu) Xitong, Organization Affairs (zuzhi) Xitong, Propaganda and Education (xuanjiao) Xitong, Political and Legal Affairs (zhengfa) Xitong, Finance and Economics (caijing) Xitong and Military (junshi) Xitong. See also Dennis J. Blasko, The Chinese Army Today: Tradition and Transformation for the -21st Century at 15; see also passim. He remarks (at 15), that ‘The proliferation of modern communications and computer capabilities in the pla [People’s Liberation Army] has helped to break through the walls of some of these systems, but control of information, especially the man- agement of bad news, remains a consideration among some members of individual xitong and may inhibit effective decision-making’ [emphasis added: fs]. His discussion concerns the pla, but it may also apply more widely. 234 Zheng, Organizational Emperor, supra note 211, text at note 21. Note that Zheng Yongnian points out that central leading small groups exist only a central level, while xitong also operate at provincial and city levels: Ibid., text at note 21. 235 Ibid., p. 109.
At central level xitong are headed by a member of the Political Bureau Standing Committee and at provincial level by members of the Provincial Party Committee.236 Another type of bureaucratic arrangement consists of dual rule or dual leadership. The concept of dual rule, according to Franz Schurmann, was for- mulated by Lenin237 and adapted by China from the then Soviet Union. Schurmann wrote that in China:
Dual rule, in practice, means that an agency is partly under the jurisdic- tion of another body on the same administrative level. Dual rule may be seen as a combination of vertical and horizontal control, that is, one channel of command and information going up, and the other going sideways. This characteristic of dual rule makes it important in the prob- lem of allocation of authority between central and local government.238
In this system, which Lieberthal refers to as ‘the matrix muddle’, the only body with overall authority is the highest level of the party-state.239 Western scholars have analysed dual rule using two different but interre- lated concepts: fragmented authoritarianism, on one hand, and the distinction between ‘leadership relations’ and ‘professional relations’, on the other hand. Fragmented authoritarian and the distinction between leadership relations and professional relations are both features of China’s institutional structure, though the two are not necessarily associated in other countries. Lieberthal
236 Ibid., p. 110, who also (at 110) gives a list of the main xitong, such as the political and legal system and the administrative system, the latter embracing small systems such as sport and public health or finance and economy. Borrowing from other scholars, Biddulph, Detention, supra note 20, p. 16, notes various functional systems. On the 1950s, see Bachman, Great Leap, supra note 226, 46–51. For a detailed analysis of the propaganda system (xuanchuan xitong), see Anne-Marie Brady, Marketing Dictatorship: Propaganda and Thought Work in Contemporary China (Rowman & Littlefield Publishers, Lanham md, 2008) and David Shambaugh, ‘China’s Propaganda System: Institutions, Processes and Efficacy’, The China Journal, 57, January 2007, 26–58 (hereafter Shambaugh, ‘System’), who also notes (at 51) that ‘the Party School system is bureaucratically in its own xitong (sys- tem) under the Central Committee’. 237 Under the name of ‘dual power’: see e.g. V.I. Lenin, ‘The Dual Power’, in Lenin Collected Works, Progress Publishers, 1964, Moscow, Volume 24, pages 38–41. available at https:// www.marxists.org/archive/lenin/works/-1917/apr/09.htm, last accessed 28 November 2014. 238 Schurmann, Ideology, supra note 224, at 188–194; the quotation is from p. 189. 239 Lieberthal, Governing, supra note 207, especially 187–188.
240 Lieberthal and Oksenberg, Policy Making, supra note 26. This book is a link in a long chain of American political science theorising about Chinese bureaucracy, which began at Columbia University with A. Doak Barnett’s book Cadres, Bureaucracy and Political Power in Communist China (Columbia University Press, New York and London, 1967); continued with the publication of Lieberthal and Oksenberg’s book on Policy Making in China [Barnett supervised the PhD theses of both authors at Columbia) and Kenneth G Lieberthal and David M Lampton (eds), Bureaucracy, Politics, and Decision-Making in Post-Mao China (University of California Press, Los Angeles, 1992); and has been devel- oped most recently in Andrew C. Mertha, The Politics of Piracy: Intellectual Property in Contemporary China (Cornell University Press, Ithaca and London, 2005) (hereafter Mertha, Piracy) and Andrew C. Mertha, China’s Water Warriors: Citizen Action and Policy Change (Cornell University Press, Ithaca and London, 2008). [Lieberthal supervised Mertha’s PhD thesis at Michigan]. 241 Kenneth G. Lieberthal, ‘Introduction: The “Fragmented Authoritarianism” Model and Its Limitations’, in Lieberthal and Lampton (eds), Bureacracy, supra note 145, 1–30. 242 Mertha, Piracy, supra note 240, at 26–28, 146, 190, 227–228. See also his article ‘Policy Enforcement Markets: How Bureaucratic Redundancy Contributes to Effective ipr Policy Implementation in China’, Comparative Politics, 38, 3, April 2006, pp. 295–316. 243 Lieberthal and Oksenberg, Policy Making, supra note 26. 244 Lieberthal and Oksenberg, Policy Making, supra note 26, 148–149, which also points out that these are not the only important types of inter-bureaucratic relationships in China.
245 Dougan, Aviation, supra note 231, at 12. 246 See ibid., at 95–99, especially Figure 4.1 at p. 95, and 152–159, especially Figure 5.1 at p. 156. 247 See Mertha, Piracy, supra note 240, at 26–28, 146, 190, 227–228. See also his article ‘Policy Enforcement Markets: How Bureaucratic Redundancy Contributes to Effective ipr Policy Implementation in China’, Comparative Politics, 38, 3 April 2006, pp. 295–316. 248 Lieberthal refers to these hierarchical bureaucracies in terms of a ‘functional division of labo[u]r’: see Kenneth G. Lieberthal, ‘Introduction: The “Fragmented Authoritarianism” Model and Its Limitations’, in Lieberthal and Lampton (eds), Bureacracy, supra note 145, 1–30, at 8. 249 Sinkule and Ortolano, Implementing, supra note 206, at 14, see also 10–21. 250 Mertha ‘Soft Centralization’, supra note 217, at 797 [original italics omitted]. Henry Yuhuai He, Dictionary of the Political Thought of the People’s Republic of China (M.E. Sharpe,
Tiao/kuai thus refers to dual rule.251 Sinkule and Ortolano discuss dual rule in terms of ‘lines and pieces’ (tiao tiao kuai kuai) [tiáotiáo kuàikuài 条条块块]. ‘Tiao tiao refers to vertical (or functional) relationships within a xitong, i.e. a unit’s connection with central leading organs (tiao tiao lingdao guanxi) [tiáotiáo lǐngdǎo guānxì 条条领导关系]. Kuai kuai refers to horizontal (or lat- eral) relationships, for example, a unit’s connection with local leading organs (kuai kuai lingdao guanxi) [kuàikuài lǐngdǎo guānxì 块块领导关系].252 To give an example from the food sector, Sinkule and Ortolano remark in passing that a food processing plant is generally under the Ministry of Light Industry xitong but if it is in the form of a township and village industrial enterprise located in a rural area, it falls under the Ministry of Agriculture xitong. They also give a detailed example of a textiles factory, which is subject both to vertical leader- ship relations and also to territorial professional relations, for example with local government. Concluding their study of environmental policy, they iden- tify ‘[w]hat is unique about China is that national environmental laws are implemented by local agencies that are part of the national agency system (via the xitong with the nepa [National Environmental Protection Agency] at the top level) and part of local government (with attendant kuai kuai relationships)’.253 Consequently, lines of authority are often blurred and
Armonk, ny and London, 2001), at 455, defines ‘tiaotiao lingdao (vertical leadership)’ as ‘policy and operational control by the “Center” – the Party Central Committee and the Central Government (its ministries and other national agencies) – to their local depart- ments or branches at various levels in the country. …those departments, enterprises, or institutions under “vertical leadership” are also subject to “regional geographical leader- ship”, that is, “dual leadership” (shuangchong lingdao). When a contradiction occurs, the “vertical leadership” should submit to the “regional geographical leadership”. Up to the present, China’s institutional structure is still very complicated. Enterprises and institu- tions are often managed by the “Center” for vocational work, and by the local authorities for expenditure and personnel matters. “Dual leadership” also refers to the two leader- ships, from the Party system and the government system’. 251 ‘In China’s unitary system, tiao-tiao lines of authority tie each unit vertically to superior organs of power at the Center, whereas kuai-kuai lines of authority tie them horizontally to local organs of power. In the Chinese scheme of things, tiao-tiao and kuai-kuai authori- ties are to share power cooperatively according to a system of dual rule, or shuangchong lingdao. Problems that arise in this dual-rule scheme are supposed to be ironed out in the unifying authority of the Community Party, dang tongyi lingdao, a hierarchical organiza- tion that theoretically has only a single leading organ at the Center’: Paul E. Schroeder, ‘Territorial Actors as Competitors for Power: The Case of Hubei and Wuhan’, in Lieberthal and Lampton, Bureaucracy, supra note 145, at 286. 252 Sinkule and Ortolano, Implementing, supra note 206, at 14. 253 Ibid., at 201.
It asserts that policy made at the center becomes increasingly malleable to the parochial organizational and political goals of various vertical agencies and spatial regions charged with enforcing that policy. Outcomes are shaped by the incorporation of interests of the implementation agen- cies in the policy itself. [The model] thus explains the policy process as being governed by incremental change via bureaucratic bargaining.255
In his recent research on environmental politics, however, Mertha shows that policy-making and policy-implementation in China have become increasingly pluralistic.256 Similarly, Lema and Ruby in their analysis of the Chinese market for wind energy argue that policy coordination among bureaucratic actors has largely replaced ‘fragmented authoritarianism’.257 These changes seem to be characteristic also of recent developments with regard to monetary policies, financial regulation, financial stability and reduction of systemic risks.258 As Mark Dougan’s study of the civil aviation industry makes clear, these
254 Schurmann, Ideology, supra note 224, at 191; see also 176–178, 190–194 and 216–219 on the coordinating functions of the regional Party committee, in particular by the Party commit- tees taking control of regional government agencies. See also Bachman, Great Leap, supra note 226, 46–47. On historical precedents, see Sebastian Heilmann and Elizabeth J. Perry, Mao’s Invisible Hand: The Political Foundations of Adaptive Governance in China (Harvard University Press, Cambridge, 2011), especially the chapter by Jae Ho Chung, ‘Central-Local Dynamics: Historical Continuities and Institutional Resilience’, pp. 297–320. 255 Andrew Mertha, ‘“Fragmented Authoritarianism 2.0”: Political Pluralization in the Chinese Policy Process’, The China Quarterly, 200, December 2009, 995–1012, at 1013. 256 Andrew Mertha, China’s Water Warriors: Citizen Action and Policy Change (Cornell University Press, Ithaca and London, 2008). 257 Adriaan Lema and Kristian Ruby, ‘Between fragmented authoritarianism and policy coordi- nation: Creating a Chinese market for wind energy’, Energy Policy, 35, 2007, 3879–3890. For a similar case study of competition policy, see Angela Huyue Zhang, ‘Bureaucratic Politics and China’s Anti-Monopoly Law’, Cornell International Law Journal, 48, 1, 2015, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2391187, last accessed 8 May 2014. 258 See ‘New financial agency to better coordinate policies’, Shenzhen Daily, Wednesday, 21 August 2013, p. 6. On the emergence during economic reforms of new variables such as
marketization, destatisation, decentralisation and globalisation (in addition to the role of bureaucracy), see Dougan, Aviation, supra note 231, at 15–21, 205–215, passim. 259 Ibid., at 179 and especially 214, Figure 6.1. 260 Yanzhong Huang, Governing Health in Contemporary China (Routledge, London and New York, 2013), at 11–15 (hereafter Huang, Health). 261 In 1992, Lieberthal and Lampton, supra note 145, wrote that ‘no institutional regulations in themselves seriously constrain the options available to the top leaders as a group’ (16) and that ‘the top leadership in China remains very powerful, despite the reforms. At the top, bureaucratic boundaries fade even as leaders compete over bureaucratic resources. Personalities and personal relationships assume tremendous importance at the pinnacle’. (16) They point out (at 21) that, while ‘formal rules do not constrain the top leaders in reshaping the system’, other factors limit their power, namely lower-level officials may ignore vague or inconsistent decisions, achieving policy objectives requires delegation and leeway and implementation of policies is best achieved by persuasion rather than by coercion’. See Carol Lee Hamrin, ‘The Party Leadership System’, in Lieberthal and Lampton, Bureaucracy, supra note 145, 95–124; see also Sinkule and Ortolano, Implementing, supra note 206, at 13. Similarly, Mark Dougan argues that relations among different xitong and tiao/kuai relations ‘[tend] to blunt the authoritarian elements of the state system and [give] rise to a more protracted policy process in which outcomes often differ from policy intentions’: Dougan, Aviation, supra note 231, at 206.
Administrative Organisation of Food Safety Regulation The domain of food safety regulation in China in the early 2000s was a classic example of fragmented authoritarianism. The 2004 Decision of the State Council about Strengthening Food Safety consolidated a pattern of institu- tional fragmentation (zhèngchū duōmén, 政出多门). It confirmed ‘the working mechanism for food safety – “being under national uniform leadership, with the local governments to be specifically responsible, guidance and coordina- tion by competent departments, and joint act of all sides”’.262 All levels of gov- ernment were admonished:
You must further strengthen up the functions of the supervisory depart- ments. According to the principle – one supervision link subject to the supervision of one department, you should, by adopting the phase-by- phase supervision as the main approach and product-based supervision as a supporting way, further strengthen up food safety supervision and con- trol functions so as to clarify the responsibilities. The Ministry of Agriculture shall be responsible for the supervision over the product link of primary agricultural products. The quality inspection departments shall be respon- sible for the supervision over the food production and processing link, while the function of supervision and regulation of the sanitation of food production and processing link currently undertaken by the hygiene departments shall be transferred to the quality inspection departments. The industrial and commercial departments shall be responsible for the supervision over the food circulation link. The hygiene departments shall be responsible for the supervision of the catering industry. The food and drug supervision departments shall be responsible for the comprehensive supervision and coordination in the food safety, organizing investigations into and imposing punishments to the serious accidents. According to the principle of consistence between power and responsibilities, a food safety supervision responsibility system and a penal system shall be set up. The specific measures shall be formulated by the Office of the Committee for Establishing Government Organizations of the cccpc jointly with other pertinent departments. The current function adjustments are very complicate[d] and difficult, all relevant departments shall, considering the general situation, carefully make good preparations so as to ensure the smooth implementation on January 1, 2005.263
262 Decision of the State Council about Further Strengthening Food Safety, issued on 1 September 2004, effective date 1 September 2004, (No. 23 [2004] of the State Council). 263 Decision of the State Council about Further Strengthening Food Safety, issued on 1 September 2004, effective date 1 September 2004, Section 3 ‘Several Significant Measures’.
As of 2006, the Chinese government reported to the wto Trade Policy Review body that at least sixteen institutions were involved in governing agriculture and related subsectors. It also noted that sub-national governments had become more influential, often being free to decide how to implement national measures, sometimes resulting in inter-regional variation.264 The same was true of food safety. At central government level, responsibility for food safety was divided among the State Administration for Quality Supervision, Inspection and Quarantine (aqsiq),265 the Ministry of Health (MoH), the Ministry of Commerce (MoC), the State Administration for Industry and Commerce (saic),266 the Ministry of Agriculture (MoA) and the State Food and Drug Administration (sfda). The State Council did not act as a strong coordinating body. Administrative respon- sibility for food standards was fragmented between the China Standardi sation Administration (sac), Ministry of Agriculture, Ministry of Health, State Administration of Industry and Commerce (saic), aqsiq and the State Food and Drug Administration (sfda). Administrative responsibility for labelling was divided among sac, aqsiq and the Ministry of Agriculture, the latter being responsible for agricultural gmos.267 Leaving aside quarantine and the entry/ exit system as well as the Law on Agriculture, China’s main food safety mea- sures included the Food Hygiene Law, the Law on Animal Disease Prevention, the Law on Import and Export Commodity Inspection, the Law on Frontier Health and Quarantine, the Law on the Entry and Exit of Animals and Plant Quarantine and numerous implementing measures and rules.268 This fragmentation was replicated at each lower level of government, for example in Hebei Province and Shijiazhuang Municipality. For instance, Shijiazhuang City in 2010 was a prefecture-level city269 with a total population
264 World Trade Organization, Trade Policy Review Body. 28 February 2006. Trade Policy Review, People’s Republic of China, Report by the Secretariat, WT/TPR/S/161. (World Trade Organization, Geneva), p. 165. 265 On the organisational history of aqsiq and its competition with saic with regard to trademarks and counterfeiting, see Mertha, Piracy, supra note 240, 180–194. 266 On the organisational history of saic, see Ibid., 173–180, and Mertha ‘Soft Centralization’, supra note 217, at 794–795. 267 World Trade Organization, Trade Policy Review Body Report, Trade Policy Review, China, Report by the Secretariat, Revision, WT/TPR/S/199/Rev.1, 12 August 2008, at 69–70. 268 Part of this paragraph is drawn from Francis Snyder, ‘Multilateral Monitoring of Food Safety Law in China: The wto Trade Policy Review Mechanism, 2006–2014’, Peking University Transnational Law Review, 2, 2, 2014, pp. 321–410, at 347. 269 Below central government and above municipalities, the Chinese administrative hierar- chy comprises provinces, prefectures and counties. Prefecture-level cities (diji shi) is one of the four types of administrative unit in a prefecture. They have prefecture-level status
and thus govern surrounding counties, county-level districts and county-level cities and are subject to the local People’s Congress. See Shiuh-Shen Chien, ‘Prefectures and Prefecture-Level Cities: The Political Economy of Administrative Restructuring’, in Jae Ho Chung and Tao-Chiu Lam (eds), China’s Local Administration: Traditions and Changes in the Sub-National Hierarchy (Routledge, London and New York, 2010), 127–148 at 127–128, see also 135–147 (hereafter Chung and Lam, Local Administration). The complexity of shared competences is such that Chien (at 138) describes it as ‘a kind of free-for-all, in which governments at all levels can initiate policies and influence each other’. 270 http://en.wikipedia.org/wiki/Shijiazhuang, last accessed 22 September 2013. Chien iden- tifies these three sets of relations as ‘(1) prefecture-level-city governing counties (“city- leading-county”, shi guan xian), (2) prefecture-level-city governing county-level cities (“city-leading-city”, shi guan shi), and (3) prefecture-level-city governing county-level districts (“city-leading-districts”, shi guan qu)’: Shiuh-Shen Chien, ‘Prefectures and Prefecture-Level Cities: The Political Economy of Administrative Restructuring’, in Chung and Lam, Local Administration, supra note 269, at 136. 271 Before late 1998, the local aic had mainly kuai-based relations of authority, but it gradu- ally shifted to emphasise tiao-based relations. This was a form of ‘soft centralisation’, in which the provincial government replaced the prefectural government, county govern- ment and township and village governments in leadership relations with the aic at pre- fecture, county and township and village levels. The government at each level then was
State Council
AQSIQ MoH MoC SAIC MoASFDA
Shijiazhuang Shijiazhuang Shijiazhuang Shijiazhuang Shijiazhuang Shijiazhuang Municipal Municipal Municipal Municipal Municipal Municipal AQSIQ HB CB AIC AB FDA
District/ District/ District/ District/ District/ District/ Country Country Country Country Country Country AQSIQ HB CB AIC AB FDA
Bureaucratic lines Coordination lines
AQSIQ: General Administration of Quality Supervision, Inspection and Quaratine MoH: Ministry of Health; Health Bureau MoC: Ministry of Commerce; CB: Commerce Bureau SAIC: State Administration for Industry and Commerce AIC: Administraction for Industry and Commerce MoA: Ministry of Agriculture; AB: Agriculture Bureau SFDA: State Food and Drug Administration
Figure 2.2 Food safety regulatory authorities, Shijiazhuang City, 2008 Jing Li, Policy Coordination in China: The Cases of Infectious Disease and Food Safety Policy (lap Lambert Academic Publishing, Saarbrűcken, 2012, p. 78, Figure 5.9: Food Safety Regulation System in Shijiazhuang before Sanlu Incident. control of the eponymous functionally specific regulatory authority at the next higher level, running up to the level of ministries which are departments of the State Council. None of the ministries, however, or their offspring at lower levels had any power or responsibility for coordination. Coordination of the minis- tries was left to the State Council. At city level, the Shijiazhuang Municipal Food and Drug Administration exercised coordinating power over the other functionally specific authorities at the same municipal level. It did not how- ever exercise leadership relations over these same-level authorities. Instead, leadership relations with the City’s fda stemmed from the Shijiazhuang municipal government, closely intertwined with the Shijiazhuang Party Committee.
left with only professional, or non-legally-binding, relations with the aic at each level. See Mertha ‘Soft Centraliation’, supra note 217, at 794–795, 798 (Figure 1).
Administrative responsibilities were fragmented, central government con- trol was weak, and local government proved to be concerned mainly with social stability and economic growth. It is not surprising that, when the melamine crisis erupted, neither leadership relations nor professional rela- tions resulted in an adequate response. Despite the fact that there had been citizen complaints as early as December 2007, and despite the official scientific finding that Sanlu products contained melamine, there was little coordination between regulatory authorities in different provinces and even less action by either local (Shijiazhuang City or its subdivisions), provincial (Hebei Province) or central government regulatory agencies. Xiu and Klein recount that ‘[w]hen the melamine event was first reported, the government did not even know which of its departments should be responsible for it’.272 The administrative organization of regulatory authorities in the field of food safety made coordi- nation difficult, the assignment of responsibility almost impossible, and action a much less likely outcome in any situation than inaction or indeed inertia.
Food Safety Regulation of Melamine in Practice In early August 2008 a number of meetings were held between city and local governmental officials and Sanlu. It is extremely difficult to trace the number, dates and participants in various meetings, and indeed it is not always easy to confirm whether and when a meeting took place. Bearing these limitations in mind, the following discussion seeks to reconstruct the unfolding pattern of regulation in the melamine crisis. On the evening of 1 August 2008, Ms Tian Wenhua, the President of Sanlu, held an emergency Sanlu board meeting. Members of the Sanlu board from Fonterra, the New Zealand company that was Sanlu’s partner in the joint venture, proposed to recall the defective prod- ucts immediately. However, this proposal was rejected by representatives of Sanlu and of the Shijiazhuang city government.273 Instead the meeting decided that Sanlu would replace the existing formula with new formula to be put on the market, but that the existing formula would not be recalled, and also that the incident should be kept confidential. On 2 August, reportedly after having failed to resolve the problem on its own without publicity,274 Sanlu apparently reported the melamine contamination
272 Xiu and Klein, ‘Factors’, supra note 155, at 467. 273 See also Zhao Litao and Lim Tin Seng, ‘The Tainted Milk Formula Scandal: Another Hard Lesson for China’, eai Background Brief No. 406, 29 September 2008, at point 3.5. 274 Gong Jing and Liu Jingjing, ‘Spilling the Blame for China’s Milk Crisis’, Caijing Magazine, 10 October 2008, p. 1 available at http://english.caijing.com.cn/2008-10-10/110019183.html, last accessed 15 September 2013.
275 According to Shijiazhuang city government spokesman Wang Jianguo, quoted in Reuters, ‘China milk scandal firm asked for cover-up help’, http://www.reuters.com/article/ 2008/10/01/us-china-milk-idUSTRE48T0-L920081001, last accessed 20 September 2013. 276 This list of participants is based on Wang Heyan, Tao Zhu and Doudou Ye, ‘Caijing Zazhi Tebie Baodao: Sanlu Du Naifen Shenpan (Caijing Magazine Special Report. Sanlu Poisonous Milk Powder Sentences), retrieved 20 January 2009 from http://www.sachina .edu.cn/Htmldata/news/2009/01/4773.html, cited in Li, PhD Thesis, supra note 128, at 136. 277 The New Zealand Prime Minister was reported as having said that a full recall had been blocked by Chinese local officials. As she was not informed of the melamine problem until 5 September, this information must have come from Fonterra representative on the Sanlu board. See Claire Trevett, ‘Fonterra: We acted responsibly on killer milk’, The New Zealand Herald, Tuesday 16 September 2008, available at http://www.nzherald.co.nz/ -business/news/article.cfm?c_id=3&objectid=10532373, last accessed 3 May 2014 (hereaf- ter Trevett, ‘Responsibly’). 278 Ibid.; Owen Hembry, ‘Fonterra: This is as bad as it gets’, The New Zealand Herald, Thursday, 18 September 2008, available at http://www.nzherald.co.nz/fonterras-chinese-milk-scandal/ news/article-.cfm?c_id=1502761&objectid=10532797; last accessed 3 May 2014. See also Fu and Nicoll, ‘Corporate Governance, supra note 131, at 110–111.
279 Fran O’Sullivan, ‘Clark should order inquiry into poisoned-milk crisis’, The New Zealand Herald, Saturday 20 September 2008, available at http://www.nzherald.co.nz/fonterras -chinese-milk-scandal/news/article.cfm?c_i-d=1502761&objectid=10533146, last accessed 3 May 2014: Fran O’Sullivan, ‘Embassy officials slow to call toxic alert’, The New Zealand Herald, Sunday, 21 September 2008, available at http://www.nzherald.co.nz/font-erras -chinese-milk-scandal/news/article.cfm?c_id=1502761&objectid=10533363, last accessed 3 May 2014. For further discussion, see Paula Oliver, ‘Grim future for milk culprits’, Friday 19, September 2008, available at http://www.nzherald.co.nz/fonterras-chinese-milk-scandal/ news/article.cfm?c_id=1502761&objectid=10532999, last accessed 3 May 2014. 280 Paula Oliver, ‘Gangsters linked to milk scandal’, The New Zealand Herald, Saturday, 18 October 2008, available at http://www.nzherald.co.nz/fonterras-chinese-milk-scandal/ news/article.cfm?c_id=1502761&objecti-d=10538158, last accessed 4 May 2014. 281 See ‘Editorial: Fonterra poison milk scandal a disaster waiting to happen’, The New Zealand Herald, Sunday, 21 September 2008, available at http://www.nzherald.co.nz/fonterras -chinese-milk-scandal/news/article.cfm?c_i-d=1502761&objectid=10533356, last accessed 3 May 2014; Owen Hembry, ‘Cost of disaster remains to be counted’, The New Zealand Herald, Monday, 22 September 2008, available at http://www.nzherald.co.nz/fonter-ras -chinese-milk-scandal/news/article.cfm?c_id=1502761&objectid=10533392, last accessed 3 May 2014. Fonterra repeatedly stated that it did not know of any problems till 2 August: see for example Owen Hembry and Eloise Gibson, ‘Fonterra had not heard of milk revela- tions – Ferrier’, The New Zealand Herald, Wednesday, 24 September 2008, available at http://www.nzherald.co.nz/fonterras-chinese-milk-scandal/news/article.cfm?c _i-d=1502761&objectid=10533828, last accessed 3 May 2014.
282 See ‘Fonterra slow to speak on milk scandal – pm’, The New Zealand Herald, Monday, 22 September 2008, available at http://www.nzherald.co.nz/fonterras-chinese-milk-scandal/ news/article.cfm?c_id=1502761&objecti-d=10533487, last accessed 3 May 2014. 283 Liu, ‘Profits’, supra note 135, at 386–387. 284 Ye Tieqiao, ‘Revealing the Secret: Sanlu found Melamine in its Milk Products but Tried to Keep Silence’, available at http://www.chinanews.com.cn/gn/news/2009/01-01/1511162 .shtml, last accessed xxxxxx; see also David Barboza, ‘Former Executive Pleads Guilty in China Milk Scandal’, New York Times, 1 January 2209, at A10, cited in Liu, ‘Profits’, supra note 147, at 387, note 95. 285 On the changing role of the media, see Doug Young, The Party Line: How the Media Dictates Public Opinion in Modern China (John Wiley & Sons Singapore Pte. Ltd., Singapore, 2013); Susan L. Shirk (ed), Changing Media, Changing China (Oxford University Press, New York, 2011) (hereafter Shirk, Media); Doris Fischer, ‘Censorship and Marketization: Institutional Change within China’s Media’, in Thomas Heberer and Gunter Schubert (eds), Regime Legitimacy in Contemporary China: Institutional Change and Stability (Routledge, London, 2009), pp. 175–196. 286 McGregor, The Party, supra note 77, pp. 170–171, 174, 184–186 (the quotation is from p. 186). Richard McGregor is now the Financial Times bureau chief in Washington, dc. According to another account: ‘The timing of the powdered milk crisis, which coincided with the
2008 Beijing Summer Olympic Games, appears to have rendered media attention on the crisis a virtual impossibility. Prior to the Olympic games, Chinese propaganda officials issued rules requiring domestic publications to obtain permission before publishing articles about food safety or other political delicate subjects [citing New York Times, ‘Despite Warnings, China’s Regulators Failed to Stop Tainted Milk’, http:www.nytimes .com/2008/09/27/world/asia/27milk.html (last visited November 30, 2008). Due to gov- ernmental insistence that the Olympic games should remain free of controversy, Chinese journals were pressured to keep quiet about any potentially disparaging news regarding Sanlu [citing id.]. As a result, at least one newspaper’s investigation in late July 2009, reporting that infants had fallen ill after consuming powdered milk manufactured by Sanlu Group, was suppressed by authorities and never published [citing See Wall Street Journal, ‘Press Controls Feed China’s Food Problem’, http://online.wsj.com/article/ SB12233246205820879.-html (last visited November 30, 2008): Alex Ferguson, ‘Govern mental Authority Versus Judicial Independence: The Abuse of Executive Power in China’s Contaminated Powdered Milk Crisis’, available at http://www.marle-rblog.com/uploads/ file/milkcrisis.pdf, last accessed 23 September 2013. See also Reuters, ‘China milk scandal firm asked for cover-up help’, http://www.reuters.com/article/2008/10/01/us-china-milk -idUSTRE48T0L9200-81001. Li Jing reports that ‘The period of the Olympics especially August 2008 was a sensitive time and it is likely that the ccp Propaganda Department banned stories on food safety problems during that time’: see Li, PhD Thesis, supra note 128 at 135, see also 136–137. For a similar but more circumspect account, see Liu, ‘Profits’, supra note 135, at 397. 287 ‘China: Sanlu Group Sought Government Help to Cover Up Tainted Milk Recall’, available at http://digitaljournal.com/article/260553, last accessed 30 March 2012. 288 Anne-Marie Brady, ‘Saving Face, Not Lives’, The Sunday Times Star [New Zealand], 23 September 2008, published in YaleGlobal Online Magazine, available at http://yaleglobal. yale.edu/content/saving-face-not-lives, last accessed 19 April 2012. See also Anne-Mary Brady and He Yong, ‘Talking Up the Market; Economic Propaganda in Contemporary China’, in Anne-Marie Brady (ed), China’s Thought Management (Routledge, London, 2014), 36–56, at 51. The Constitution of the Communist Party of China states that Party members must ‘adhere to the principle that the interests of the Party and the people stand above everything else’ (Article 3(3)): Constitution of the Communist Party of China, p. 37 (Foreign Languages Press, Beijing, 2001).
289 http://en.wikipedia.org/wiki/Nanfang_Daily, last accessed 1 April 2012. 290 According to Bloomberg News reporter John Liu, ‘China Milk Scandal Shows Ties Between Companies, City Officials’, 18 September 2008, available at http://bloomberg.com/apps/ news?pid=newsarchive&sid=aphp1-fx8M0Mw&refer=india, last accessed 1 April 2012. 291 Fu and Nicoll, ‘Corporate Governance’, supra note 131, at 110 [fs: footnote omitted]. 292 Nan Su, ‘Why Report of Sanlu Incident was Delayed?’ [Sanlu Shijian Weihe Chichi Bubao] (in Chinese), China Daily (online), 1 October 2008, http://paper.people.com.cn/rmrb/ html/2008-10/01/content_112000.htm; and bbc News, ‘China Dairy “Asked for Cover-up”’, 1 October 2008, http://news.bbc.co.uk/2/hi/asia-pacific/7646512.stm, both cited in JFu and Nicoll, ‘Corporate Governance’, supra note 143, at 110, note 30. 293 Burns et al., ‘Dublin’, supra note 137, at 7. On ors in China generally, see John P. Burns and Zhou Zhiren, ‘Performance Management in the Government of the People’s Republic of China: Accountability and Control in the Implementation of Public Policy’, oecd Journal on Budgeting, 2, 2012, available at http://www.oecd.org/china/48169592.pdf, last accessed 13 September 2013. Burns and Zhou (at 17) give seven targets, each with criteria, for ors in a county government in 2005: Party building, anti-corruption, family planning, dealing with mass complaints, production safety, propaganda work and spiritual civilisation con- struction, and comprehensive social security. Food safety does not figure anywhere in the list, unless one considers that it could be included under ‘mass complaints’. 294 ‘Sanlu to recall milk powder as baby dies’, China Daily, 12 September 2008, http://www .lawinfochina.-com/Search/DisplayInfo.aspx?id=6904&lib=news&keyTitle=milk&keyCT
Nevertheless, Sanlu refused on the morning of 11 September to acknowledge quality problems. It announced that its products were in accordance with national standards and were approved by the government’s quality supervi- sion departments. However, in addition to Hebei Province, similar cases of melamine contamination of dairy products were reported in Anhui, Hubei, Hunan, Jiangsu, Jiangxi, Ningxia, Shandong and Shanxi Provinces. The Jiangsu Provincial Office of Health stated that no quality inspection report for Sanlu had been issued, even though Sanlu claimed that its products had been approved by the Provincial Administration of Quality Supervision. On 12 September the Gansu Provincial Administration of Quality Supervision and Quarantine similarly declared that it had never received a quality inspection application from Sanlu. This was perhaps not surprising, because aqsiq had granted Sanlu and other leading dairy companies, including Mengnui and Yili, ‘inspection-free’ status for some years after the companies met government standards for dairy products in previous years.295 Later, however, in a press conference on 15 September the Information Office of Gansu Provincial Government confirmed a causal link between the death of two babies in the province and Sanlu products.296 On 9 September, the New Zealand government reportedly instructed its ambassador in Beijing to inform the Chinese government of the problem and ‘[t]he full product recall, and the massive fallout, began immediately’.297 The national Ministry of Health confirmed, on the evening of the 12th, that traces of melamine sufficient to cause kidney stones had been found in Sanlu’s milk
itle=, accessed 29 March 2009. On the toxicity of melamine cyanurate, a salt of melamine and cyanuric acid, see Xiaofang Pei, Annuradha Tandon, Anton Alldrick, Liana Giorgi, Wei Huang and Ruijia Yang, ‘The Chinese melamine milk scandal and its implications for food safety regulation’, Food Policy, 36, 2011, 412–420 at 412–413 (hereafter Pei et al, ‘Implications’). 295 See Gong Jing and Liu Jingjing, ‘Spilling the Blame for China’s Milk Crisis’, Caijing Magazine, 10 October 2008, p. 3 available at http://english.caijing.com.cn/2008-10-10/110019183 .html, accessed 29 March 2012; and personal information. 296 ‘Sanlu Milk Events’ [Sanlu Naifen Shijian] [in Chinese], available at http://www.cnii.com .cn/wlw/content/-2011-09/19/content_918291.htm; last accessed on 5 February 2015; See also http://baike.baidu.com/view/215-4221.htm?fromtitle=%E4%B8%89%E9%B9%BF& fromid=3291423&type=syn#4, last accessed 5 February 2015. 297 McGregor, The Party, supra note 77, p. 188. The New Zealand Prime Minister found out about the issue on 5 September 2008: see Trevett, ‘Responsibly’, supra Chapter 2 note 277. See also Alex Ferguson, ‘Governmental Authority Versus Judicial Independence: The Abuse of Executive Power in China’s Contaminated Milk Crisis’, available at http://www .marlerblog.com/uploads/-file/milkcrisis.pdf. Note that the 5th of September 2008 was a Friday….
298 Much of the information in this paragraph is based on ‘Sanlu to recall milk powder as baby dies’, China Daily, 12 September 2008, http://www.lawinfochina.com/Search/DisplayInfo .aspx?id=6904&lib=news&keyTitle=mil-k&keyCTitle=, accessed 29 March 2009. 299 Xinhua News Agency, ‘China reports 432 infants with kidney stones’, 13 September 2008, available at http://www.china.org.cn/china/national/2008-09/13/content_16448827.htm, last accessed 26 January 2015. 300 The ‘take the blame and resign’ system began with the sars incident. It was included in the April 2004 Provisional Regulations on the Resignation of Leading Cadres of the Party and Government (Adopted at the 15th Session of the Standing Committee of the Tenth National People’s Congress on 27 April 2005, promulgated and came into force as of 1 January 2006); see Zou Keyuan, ‘Rule of Law and Governance’, in John Wong and Lai Hongyi (eds), China into the Hu-Wen Era: Policy Initiatives and Challenges World Scientific, Singapore, 2006), pp. 191–216 at pp. 199–20. As a head of the cpc Committee of a major company, Tian Wenhua would have been covered by the system. 301 Liu, ‘Obstacles’, supra note 122, at 292–293. Liu (at 292) summarises the apology; the two quotations are from p. 293, citing original news reports from Xinhuanet which as of 19 January 2015 are no longer available on the webpages to which Liu refers.
Intervention of Central Party-State Authorities Central government, as the last resort, intervened in the crisis for the first time on 11 September. Initially, individual ministries acted on their own or in con- junction with other ministries at the same hierarchical level, each within the assumed boundaries of its own separate administrative responsibilities. Among them the most prominent was the Ministry of Health, which in principle under the 1995 Food Hygiene Law304 had overall legal responsibility for food hygiene, except for edible agricultural products which fell under the jurisdiction of the Ministry of Agriculture. At a press conference on 11 September, an official from
302 Xinhua, ‘Quality watchdog cancels inspection exemptions for food producers’, www .chinaview.cn, 18 September 2008 04:44:07, available at http://news.xinhuanet.com/ english/2008-09/18/content_10070801.htm, accessed 30 March 2012. 303 Voice of America, ‘China’s Melamine Milk Crisis Creates Crisis of Confidence’, http://www .voanews.com/-content/a-13-2008-09-26-voa45/403825.html, last visited 13 September 2013. 304 Food Hygiene Law of the People’s Republic of China, Adopted at the 16th Meeting of the Standing Committee of the Eighth National People’s Congress on 30 October 1995, and promulgated by Order No. 59 of the President of the People’s Republic of China on 30 October 1995, and effective as of the date of promulgation (Repealed by the 2009 Food Safety Law on June 1, 2009), Article 3.
305 Li, PhD Thesis, supra note 128, at 111. 306 On the normative status of administrative instruments, see Peter Howard Corne, Foreign Investment in China: The Administrative Legal System (Hong Kong University Press, Hong Kong, 1997), pp. 62–83 (hereafter Corne, Investment), and Jan Michiel Otto, Maurice V. Polak, Jianfu Chen and Yuwen Li (eds), Law-Making in the People’s Republic of China (Kluwer Law International, The Hague, 2000) (hereafter Otto et al.). 307 According to Li Changjiang, at that time still head of aqsiq: ‘Inspection results on milk powder to be publicized’, Xinhua New Agency, 15 September 2008, available at http://www.china.org .cn/government/news/-2008-09-15/content_16455974.html, last accessed 20 September 2013. 308 ap, with Staff Writer, Beijing, ‘Chinese official says dairy industry is “out of control”’, Taipei Times, Wednesday, 24 September 2008, p. 1, available at http://www.taipeitimes.com/ News/front/archives/2008/09/24/-2003424090, last accessed 3 December 2014; the first quotation also was reported in Mary-Anne Toy, Hohot, ‘Milk of human blindness’, The Sydney Morning Herald, 27 September 2008, available at http://www.smh.com.-au/world/ milk-of-human-blindness-20080926-4ouu.html, last accessed 3 December 2014.
309 See also Fu and Nicoll, supra note 131, ‘at 112; Zhao Lin and Lim Ting Seng, ‘The Tainted Milk Formula Scandal: Another Hard Lesson for China’, in Litao Zhao and Lim Ting Seng (eds) China’s New Social Policy: Initiatives for a Harmonious Society (World Scientific Publishing Company, Singapore, 2009, 195–210 at 205. 310 The official name of the State Council Leading Small Group was ‘Sanlu Brand Milk Powder Major Security Incident Crisis Leading Small Group’: see Burns et al., ‘Dublin’, supra note 137, at 26. According to the Scenario Plan for Market Supervision in the Administration of Industry and Commerce System, (Gongshangban Zi No. 86) (《工商行政管理系统市场 监管应急预案》), issued by the State Administration of Industry and Commerce (saic) on 29 June 2005, ‘First Class Major Food Safety Accident’ refers to an epidemic happening nationwide, major social security events and market fluctuation caused by serious disaster. A ‘First Class Major Food Safety Accident Report’ must be submitted to the General Office of saic by the local Administration of Industry and Commerce (aic) where an emergency happens. The ‘First Class Major Food Accident Response’ includes (a) the leading team for market supervision and emergency solution from the saic has the right to announce the establish of the First Class Scenario Plan and a special directorate for the emergency situ- ation, (b) the special directorate for the emergency situation shall act immediately to hold a meeting of all the relevant departments of saic and set out detailed solutions which could be circulated to the local aics, and (c) the local aics shall act immediately to enforce the solutions circulated by the saic and set out suitable solutions according to the rele- vant situation. ‘These leading groups are not routinely publicized, but they have inordi- nate influence over policy in their respective policy spheres’, according to David Shambaugh, ‘System’, supra note 236, at 32 [original footnote omitted]. 311 Carol Lee Hamrin, ‘The Party Leadership System’, in Lieberthal and Lampton Bureacracy, supra note 145, at 115. See also Kenneth G. Lieberthal, ‘Introduction’, in Lieberthal and Lampton, Bureaucracy, supra note 145, at 13–14, 20–21. 312 Chinanews, The Sanlu Brand Milk Powder Major Security Incident Crisis Leading Small Group Deployed the Emergency Response Working Plan (15 September 2008) (国家处理
lsgs are usually chaired by a member of the cpc Politburo Standing Committee in charge of the specific functional portfolio or xitong.313 In the circumstances this role would usually have fallen to the Ministry of Health.314 However, the new Minister, the very distinguished Professor Chen Zhu, previously Vice-President of the Chinese Academy of Sciences (cas), was not a member of the cpc.315 Hence the chair was assumed in addition by Gao Qiang, a member of the cpc Central Committee who was also Party Secretary of the Ministry of Health.316 After having served for many years in the Hebei Province Finance Department and then Ministry of Finance, Gao Qiang had moved in 2003 to the Ministry of Health, where he served successively as Executive Vice-Minister, Vice-Minister, and then from 2005–2007 as Minister of Health before resuming the position of Vice-Minister on Professor Chen’s appointment in 2007. Gao Qiang’s position in the Party Central Committee enabled him to provide strong leadership to a very disparate group.317
三鹿奶粉事件领导小组部署应急处置工作) (2008年9月15日) http://www.chinanews .com/gn/news/2008/09-15/1382155.shtml, last accessed on 14 May 2014. A slightly different list appears to be given in Li, PhD Thesis, supra note 140, at 141. The inconsistency may however be simply a result of mistranslation. I have no information concerning the spe- cific individuals who represented each organisation, except as discussed later in the text. 313 Lieberthal remarks that ‘China is awash in organizations but generally has weak institu- tions. Key appointments in the elite power game, moreover, are those to the hidden lead- ership organizations that manage the various xitong’: Lieberthal, Governing, supra note 207, at 219. 314 On functional systems, coordination points (zong kou si) and staffing in leading groups, see Carol Lee Hamrin, ‘The Party Leadership System’, in Lieberthal and Lampton, Bureaucracy, supra note 145, at 99–105. 315 In fact, in 2012 Professor Chen became Chairman of the Chinese Peasants’ and Workers’ Democratic Party (中国农工民主党, Zhōngguó Nónggōng Mínzhǔdǎng), which, accord- ing to Wikipedia ‘[currently] comprises a membership of 65,000, most of whom work in the fields of public health, culture and education, science and technology’ (see (http:// en.wikipedia.org/wiki/Chinese_Peasants%27_and_Workers%27_Democratic_Party, last accessed 1 December 2014). Professor Chen was Minister of Health until 2013, when he became Vice-Chairman of the Standing Committee of the National People’s Congress. 316 Xinhua Net, The First Class Major Food Safety Accident Response and Work Leading Small Group Established (13 September 2008) (启动国家重大食品安全事故I级响应 机制处置三鹿事件) (2008年9月13日) http://news.xinhuanet.com/local/2008-09/13/ content_9973085.htm, last accessed on 14 May 2014. 317 For an example of the difficulties of decision-making in a Chinese ministry, see the exam- ple of the Ministry of Commerce administrative rule-making and administrative redeter- mination of countervailing and anti-dumping duties in China – Countervailing and Anti-dumping Duties on Grain Oriented Flat-Rolled Electrical Steel from the United States, WT/DS414/12, Arbitration under Article 21.3 (c) of the Understanding on Rules and
A native son of Hebei,318 his deep local connections and important roles in the Party and central government undoubtedly proved valuable in asserting the power of the provincial authorities against that of the city,319 particularly because he was not from the city itself but rather from Canzhou, about 230 km from Shijiazhuang. In addition, the conjunction of his Party positions and his strong provincial con- tacts served to foster both ‘soft centralisation’, in the sense of shifting authority for local food safety policy away from Shijiazhuang Municipality and toward Hebei Provence,320 as well as ‘hard centralisation’, in the sense of emphasizing that ulti- mate authority for food safety regulation lay with the Party and central govern- ment. Gao Qiang was a central government official, and his principal orientation was toward central policy preferences, not those of the province or, still less, those of the municipality.321 If we consider the melamine crisis to be an unfortunate side- effect of the globalisation of China’s food economy, we can agree with Yumin Sheng’s conclusion that globalisation does not necessarily result in centrifugal forces but instead may lead to an increase in central government control.322 The lsg established several working groups or units. Reflecting the existing pattern of administrative fragmentation, these units were chaired by different ministries or organs: an incident investigation group chaired by the Ministry of Health, a product testing group chaired by aqsiq, a market security group chaired by saic, a news release group chaired by the cpc Central Propaganda Department (cpd), medical treatment group chaired by the Ministry of Health, and the lsg office, which was located in the Ministry of Health Supervision Bureau.323 Note that the Ministry of Health played the leading role, as one
Procedure Governing the Settlement of Disputes, Award of the Arbitrator Claus-Dieter Ehlermann, ARB-2013-1/27, 3 May 2012. ARB-2013-1/27, 3 May 2012. 318 See his curriculum vitae at China Vitae, ‘Gao Qiang’, available at http://www.chinavitae .com/biography/-Gao_Qiang%7C2133, last accessed 16 January 2015. 319 Compare Paul E. Schroeder, ‘Territorial Actors as Competitors for Power: The Case of Hubei and Wuhan’, in Lieberthal and Lampton, Bureaucracy, supra note 145, pp. 283–307. 320 On ‘soft centralisation’, see Mertha, ‘Soft Centralization’, supra note 217, who argues that the centralisation of regulatory functions up to the provincial level has tended to check local protectionism at municipal level and to benefit provincial authorities. 321 On the general Chinese administrative ‘rule of avoidance’ of not appointing native sons to local positions, see Sheng, Openness, supra note 80, 124–125. Following his analysis (at 123–129) of provincial party secretaries, it seems clear that, even had Gao Qiang been a provincial party secretary rather than a central government official, his principal orienta- tion would still have been toward central policy preferences. 322 Sheng, Openness, supra note 80, especially 222–244. 323 Li, PhD Thesis, supra note 128, at 140–141. On the internal organisation of the Ministry of Health at the time, including the Supervision Bureau, see ‘Ministry of Health’, China
Every day the office collected information before noon for a coordination meeting scheduled for 4 pm, at which 16 member units would meet together to discuss the work of the day and plan for the next day, which was reported to the State Council General Office and to the Politburo Standing Committee member and Vice Premier with responsibility for health Li Keqiang. Such a situation lasted for about a month.325
Not only with this procedure consistent with the standard pattern of adminis- trative fragmentation. Most senior officials had little if any experience of food safety regulation; this included the Minister of Health, who in any event had assumed the position only the preceding year.326 Making use of both leader- ship relations and professional relations under the supervision of a very high- level central government official may have served as one way to remedy this shortcoming. It brought available expertise together in overlapping networks from central to local government, despite the risk of inertia due to the cumula- tion of levels of bargaining. To galvanise and orient governmental action, the State Council, led by Premier Wen Jiabao, held an executive meeting in Beijing on 17 September 2008. The participants constituted an extremely high-level group, with wide experience, and representing different factions as well as the major institu- tional interests potentially involved in the management of the crisis. Table 2.3 shows the members, their governmental and Party positions at the time, their
Factfile, available at http://english1.english.gov.cn/2005-10/09/content_75326.htm, last accessed 1 December 2014. 324 Xinhua Net, The First Class Major Food Safety Accident Response and Work Leading Small Group Established (13 September 2008) (启动国家重大食品安全事故I级响应 机制处置三鹿事件) (2008年9月13日) http://news.xinhuanet.com/local/2008-09/13/ content_9973085.htm, last accessed on 14 May 2014; Li, PhD Thesis, supra note 140, at 141. 325 Li, PhD Thesis, supra note 128, at 140–141. 326 At that time senior officials at the Ministry of Health, despite their outstanding distinc- tions in medicine and many other fields, did not seem to have training or experience in matters of food safety: see China Vitae, Ministry of Health, http://www.chinavitae.com/ institution/sta/3100.851&show=list, last accessed 11 May 2014.
Table 2.3 Participants at State Council executive meeting on the melamine crisis, 17 September 2008
Institution Name Government position Party position as of Other positions University and field Province represented as of september 2008 september 2008 of study of birth
State Council Wen Jiabao Premier; Director, State Energy Secretary, State Council cpc, Previously Director, cpc General Office Beijing Institute of Geology, Commission Leading Party Group; Member, (1986–1993), Vice-Minister (Undergraduate major in 17th cpc Central Committee; and Member and Deputy Secretary, geological surveying and Member, 17th cpc Politburo; cpc Leading Party Group, Ministry prospecting, Postgraduate Member, 17th cpc Politburo of Land and Resources (1983–1985), major in geological structure) Standing Committee; Chairman, other positions at same Ministry, 1968–1983 17th cpc Central Committee, Leading Group for Finance and Economics Ministry of Chen Zhu Minister of Health none 2000–2007 Vice-President, Chinese Shanghai No. 2 Medical Sciences Shanghai Health Academy of Sciences University, then University of Paris (PhD) Ministry of Dai Bingguo Deputy Minister, Ministry Member, 17th cpc Central State Councilor of the State Council Foreign Affairs College Guizhou Foreign Affairs of Foreign Affairs; Committee; 2003–2007 2008–2013 State Councilor, Secretary, Ministry of Foreign State Council Affairs cpc Party Committee Ministry of Gao Qiang Vice-Minister of Health Member, 17th cpc Central most of career at Ministry of Finance Renmin University (economics) Hebei Health [also Committee Finance] Ministry of Hui Liangyu Vice-Premier, State Council Member, 17th cpc Central Jilin Agricultural University Jilin Agriculture Committee; Member, 17th cpc (economics) Central Committee Politburo aqisq Li Changjiang Director, aqsiq member, 17th cpc Central Changchun Institute of Optical Heilongjiang Committee Precision Machinery Li Keqiang Deputy Director, State Deputy Secretary, State Peking University, Law Anhui Energy Commission; Council cpc Leading Party Department and Masters Executive Vice-Premier, Group; Member, 17th cpc and PhD in Economics State Council Central Committee Politburo; Member, 17th cpc Central Committee Politburo Standing Committee; Vice-Chairman, 17th cpc Central Committee Leading Group for Finance and Econmics
Institution Name Government position Party position as of Other positions University and field Province represented as of september 2008 september 2008 of study of birth
State Council Wen Jiabao Premier; Director, State Energy Secretary, State Council cpc, Previously Director, cpc General Office Beijing Institute of Geology, Commission Leading Party Group; Member, (1986–1993), Vice-Minister (Undergraduate major in 17th cpc Central Committee; and Member and Deputy Secretary, geological surveying and Member, 17th cpc Politburo; cpc Leading Party Group, Ministry prospecting, Postgraduate Member, 17th cpc Politburo of Land and Resources (1983–1985), major in geological structure) Standing Committee; Chairman, other positions at same Ministry, 1968–1983 17th cpc Central Committee, Leading Group for Finance and Economics Ministry of Chen Zhu Minister of Health none 2000–2007 Vice-President, Chinese Shanghai No. 2 Medical Sciences Shanghai Health Academy of Sciences University, then University of Paris (PhD) Ministry of Dai Bingguo Deputy Minister, Ministry Member, 17th cpc Central State Councilor of the State Council Foreign Affairs College Guizhou Foreign Affairs of Foreign Affairs; Committee; 2003–2007 2008–2013 State Councilor, Secretary, Ministry of Foreign State Council Affairs cpc Party Committee Ministry of Gao Qiang Vice-Minister of Health Member, 17th cpc Central most of career at Ministry of Finance Renmin University (economics) Hebei Health [also Committee Finance] Ministry of Hui Liangyu Vice-Premier, State Council Member, 17th cpc Central Jilin Agricultural University Jilin Agriculture Committee; Member, 17th cpc (economics) Central Committee Politburo aqisq Li Changjiang Director, aqsiq member, 17th cpc Central Changchun Institute of Optical Heilongjiang Committee Precision Machinery Li Keqiang Deputy Director, State Deputy Secretary, State Peking University, Law Anhui Energy Commission; Council cpc Leading Party Department and Masters Executive Vice-Premier, Group; Member, 17th cpc and PhD in Economics State Council Central Committee Politburo; Member, 17th cpc Central Committee Politburo Standing Committee; Vice-Chairman, 17th cpc Central Committee Leading Group for Finance and Econmics
Table 2.3 Participants at State Council executive meeting on the melamine crisis, 17 September 2008 (cont.)
Institution Name Government position Party position as of Other positions University and field Province represented as of september 2008 september 2008 of study of birth
National Liang Guanglie Minister, Ministry of National Member, 17th cpc Central 2002–2007 Chief of the General State Henan University and National Sichuan Defense Defense; State Councilor, State Committee; Member, 17th cpc of pla Defense University Council Central Committee Central Military Commission Beijing Liu Yandong Vice-Chairman, Chinese Member, 17th cpc Central 2002–2007 Head, cpc Central Committee’s Tsinghua University (chemical Jiangsu Olympics Olympic Committee, Beijing Committee; Member, 17th cpc United Front Work Department; 2003–2008 engineering), Jilin University Organising Committee for the Central Committee Politburo; Vice-Chair, 10th cppcc National Committee (PhD in political science) xxix Olympiad; State Councilor, Deputy Secretary, Being State Council Organising Committee for the xxix Olympiad cpc Leading Party Group; Member, State Council cpc Leading Party Group ndrc Ma Kai 2003–2008 Minister, National Member, 17th cpc Central Renmin University (politics and Shanghai Development and Reform Committee; Secretary, ndrc economics) Commission; 2003–2008 Director, cpc Leading Party Group General Office, State Energy Commission; 2003–2008 Director, Western Regional Development Office; 2008–2013 State Councilor, State Council; 2008–2013 Secretary General, State Council Public Security Meng Jianzhu Minister of Public Security; State Party Secretary, Ministry of Shanghai Mechanical Engineering Jiangsu Councilor, State Council Public Security; Member, 17th Institute (Suzhou cpc Central Committee; City) Member, State Council cpc Leading Group saic? Zhang Dejiang from 2007: Director, 20082013 Member, State Council Yanbian University Liaoning State Council Safety Production cpc Leading Group; Member, Jilin Province (Korean language), Committee; 2008–2013 17th cpc Central Committee; then Kim Il Sung Comprehensive Vice-Premier, State Council Member, 17th cpc Central University (economics) Committee Politburo source: Compiled by the author based on information available in the following sources: the China Vitae website at http://www.chinavitae.com/index.php, last accessed 20 January 2015; Bo Zhiyue, China’s Elite Politics: Political →
Institution Name Government position Party position as of Other positions University and field Province represented as of september 2008 september 2008 of study of birth
National Liang Guanglie Minister, Ministry of National Member, 17th cpc Central 2002–2007 Chief of the General State Henan University and National Sichuan Defense Defense; State Councilor, State Committee; Member, 17th cpc of pla Defense University Council Central Committee Central Military Commission Beijing Liu Yandong Vice-Chairman, Chinese Member, 17th cpc Central 2002–2007 Head, cpc Central Committee’s Tsinghua University (chemical Jiangsu Olympics Olympic Committee, Beijing Committee; Member, 17th cpc United Front Work Department; 2003–2008 engineering), Jilin University Organising Committee for the Central Committee Politburo; Vice-Chair, 10th cppcc National Committee (PhD in political science) xxix Olympiad; State Councilor, Deputy Secretary, Being State Council Organising Committee for the xxix Olympiad cpc Leading Party Group; Member, State Council cpc Leading Party Group ndrc Ma Kai 2003–2008 Minister, National Member, 17th cpc Central Renmin University (politics and Shanghai Development and Reform Committee; Secretary, ndrc economics) Commission; 2003–2008 Director, cpc Leading Party Group General Office, State Energy Commission; 2003–2008 Director, Western Regional Development Office; 2008–2013 State Councilor, State Council; 2008–2013 Secretary General, State Council Public Security Meng Jianzhu Minister of Public Security; State Party Secretary, Ministry of Shanghai Mechanical Engineering Jiangsu Councilor, State Council Public Security; Member, 17th Institute (Suzhou cpc Central Committee; City) Member, State Council cpc Leading Group saic? Zhang Dejiang from 2007: Director, 20082013 Member, State Council Yanbian University Liaoning State Council Safety Production cpc Leading Group; Member, Jilin Province (Korean language), Committee; 2008–2013 17th cpc Central Committee; then Kim Il Sung Comprehensive Vice-Premier, State Council Member, 17th cpc Central University (economics) Committee Politburo
Transition and Power Balancing (World Scientific, Singapore, 2007); Bo Zhiyue, China’s Elite Politics: Governance and Democratization (World Scientific, Singapore, 2010).
327 Bo Zhiyue, China’s Elite Politics: Governance and Democratization (World Scientific, Singapore, 2010), p. 107 (hereafter Bo, Governance). 328 Ibid., pp. 36, 81–82. 329 See also Brookings Institution, John L. Thornton China Center, ‘Meng Jianzhu: One of China’s Top Future Leaders to Watch’, available at http://www.brookings.edu/about/ centers/china/top-future-leaders/meng_jianzhu, last accessed 2 December 2014.
Dr Sun Zhengcai, whose very distinguished career includes very substantial experience in agriculture.330 Members of the group also represented the main factions in Chinese poli- tics: the Communist Youth League (cyl) faction then led by President Hu Jintao, the princelings, the Qinghua Clique and the Shanghai Gang.331 Liu Yandong belonged to the cyl faction,332 as did Li Keqiang333 and Li Changjiang.334 General Liang Guangjie, though not a member of the cyl, sup- ported Hu Jintao.335 Ma Kai, though born in Shanghai, does not seem to have belonged to any faction but had supported Hu Jintao and the use of legal means in economic development policy.336 Liu Yandong also belonged to the group of Tsinghua University graduates, called the Qinghua Clique, which also included Hu Jintao.337 Princelings included Dai Bingguo,338 Liu Yandong339
330 See China Vitae, ‘Sun Zhengcai’, available at http://www.chinavitae.com/biography/Sun _Zhengcai/full, last accessed 23 January 2015; Brookings Institution, John L. Thornton China Center, ‘Meng Jianzhu: One of China’s Top Future Leaders to Watch’, available at http://www.brookings.edu/about/centers/china/top-future-leaders/meng_jianzhu, last accessed 2 December 2014. 331 On these factions, see, Bo Zhiyue, China’s Elite Politics: Political Transition and Power Balancing (World Scientific, Singapore, 2007) (hereafter Bo, Balancing), pp. 131–174; Franziska Barbara Keller, ‘Networks of Power: A Social Network Analysis of the Chinese Communist Party’s Central Committee, 1982–2012’, Draft, November 2014, Dissertation Project, Department of Politics, New York University, presented at the American Political Science Association Annual Meeting, November 2014, available at http://media.wix.com/ ugd/5625bd_18397-6b398b0414794ef85f51e0c6813.pdf, last accessed 23 January 2015 (here- after Keller, ‘Networks). The Shanghai faction lost power to the cyl faction as a result of the earlier sars incident: Bo,Balancing, supra note 343, pp. 238–240, 253–254, who points out (at 183 and 378) that as a result the cyl faction had more members than the Shanghai faction on the 16th Central Committee. 332 Bo, Balancing, supra note 331, p. 193; see also Keller, ‘Networks’, supra note 331, p. 13, Figure 1, p. 17 Figure 2. Liu Yandong was also a protégé of Hu Jintao: Stéphanie Balme, Entre soi: L’élite du pouvoir dans la Chinese contemporaire (Librairie Arthème Fayard, Paris, 2004), p. 231. 333 Bo, Balancing, supra note 331, pp. 190–193; Keller, ‘Networks’, supra note 331, p. 13, Figure 1. 334 Bo, Governance, supra note 327, pp. 155–156. 335 Bo, Balancing, supra note 331, pp. 129–130, 328, 225, 342. 336 Ibid., p. 285. 337 Bo, Governance, supra note 327. p. 137–139. President Xi Jinping is both a princeling and a member of the Qinghua Clique. 338 Bo, Balancing, supra note 331, pp. 163–164. 339 Ibid., pp. 162–163; Bo, Governance, supra note 327, p. 141.
– ‘providing the best and free medical care to those sickened by melamine- contaminated milk power, – confiscating and destroying all sub-standard products, – strictly supervising the production of dairy companies with on-site inspections, – revising regulations on the supervision and management of the industry,
340 Bo, Governance, supra note 327, p. 141, who states (at 77) that Zhang Dejiang was from Shanghai but was not a member of the Shanghai Gang. 341 Bo, Balancing, supra note 331, p. 78; Keller, ‘Networks’, supra note 331, p. 13, Figure 1. 342 Bo, Balancing, supra note 331, pp. 142, 148; Bo, Governance, supra note 327, pp. 135–137, who points out that, when he became Minister of Public Security, Meng Jianzhu continued the policy established by Ma Zhenchuan, chief of the Beijing Public Security Bureau, for a ‘Safe Olympics’. 343 Consequently, unlike all other participants in the meeting, he was not eligible to be on the 17th Central Committee: Bo, Governance, supra note 327, p. 107. 344 China Vitae, ‘Chen Zhu’, available at http://www.chinavitae.com/biography/Chen_Zhu, last accessed 23 January 2015. 345 On Jia Qinglin’s connection with Jiang Zemin, see Bo, Balancing, supra note 331, pp. 28–29; on Dr Sun’s reported connection with both Jia Qinglin and Wen Jiabao, see Brookings, John L. Thornton China Center, ‘Sun Zhengtai: One of China’s Top Future Leaders to Watch’, available at http://www.brookings.edu/about/centers/china/top-future-leaders/ sun_zh-engcai, last accessed 23 January 2015.
– subsidizing dairy farmers and encouraging more production by those enter- prises with higher-quality products, and – ‘finding the cause of the incident and punishing those responsible’.346
Subsequently, it was reported that on 30 September Premier Wen Jiabao gave an interview with the American biochemist Bruce Alberts, editor-in-chief of Science magazine, in which Premier Wen stated that ‘[w] feel that though the incident occurred in enterprises, the government is also responsible’.347 State Council leadership was decisive in seeking to allocate responsibility for the crisis and to set overall policies for the future. The exercise of central govern- ment power was necessary to overcome inertia resulting from lower-level administrative fragmentation, to articulate and try to impose a coherent policy in a situation of social crisis, and to preserve stability in the face of manifest and latent public dissatisfaction with the dairy sector and with the lack of effective governmental regulation of food safety.
Conclusion
What caused the melamine crisis, why did it happen when it did, and with what consequences and implications? Numerous scholars have attempted pre- viously to explain the reasons for the crisis. Though often mentioning similar elements, they emphasise different reasons or different combinations of fac- tors. We can group the earlier explanations on a spectrum, ranging from a list of specific, scattered, almost unconnected factors, through standard explana- tions of market failure and regulatory failure, to broader, almost generic expla- nations drawing on both domestic and international factors. As to the first group, an article by Chinoy attempts to explain the existence of ‘black-hearted products’ (heixin). It points to a large and ineffective bureau- cracy, corruption, small size and large number of producers and cpc monopoly
346 Xinhua, ‘China’s cabinet orders inspections, reform of dairy industry’, www.chinaview.cn, 17 September 2008, 20:19:43, available at http://news.xinhuanet.com/english/2008-09/17/ content_10059617.htm, accessed 30 March 2012. 347 David Bradley, ‘Melamine Apology’, Sciencebase, posted on 18 October 2008, available at http://www.scie-ncebase.com/science-blog/melamine-apology.html, last accessed 3 December 2014; see also ‘China “sorry” after milk crisis’, bbc Newsround, Saturday 18 October 2008, available at http://news.bbc.co.uk/cbbcnewsid-_7670000/newsid_7677900/ 7677990.sim, last accessed 3 December 2014.
The contamination of Chinese milk by melamine represented a case of fraud…. Specific tests for milk quality…should have detected such fraud, but these tests were either not carried out properly or were inef- fective. Rapid automated systems for testing the content of protein, fat and other ingredients were also not used properly…. Two other factors contributed…[:] melamine was not specifically listed as an illegal additive…[and]…many dairy giants in China, including the main dis- tributor of the contaminated milk, Sanlu, were exempted from official controls.349
However, they seem to neglect the facts that at the time there were no national standards in China for raw milk and related products, still less for melamine,350 and that there were no Chinese or international standards for melamine in dairy products.351 Consequently, as other scholars have pointed out, consis- tently with the Standards Law and its implementing Regulation, ‘[a]ll major dairy companies were given permission to set their own standards and imple- ment their own inspections as they were labeled exempt of inspection…. The government did not intervene in the inspection of these exempt firms until after the problem was reported’.352 Even if sufficient testing equipment had been available to local governmental authorities, another shortcoming con- cerned testing methods. At least one source reports that the Kjeldahl nitrogen
348 Chinoy, ‘Black-hearted Products’, supra note 182, at 20–21, passim. 349 Pei et al., supra note 294, at 413. 350 Xiu and Klein, ‘Factors’, supra note 155, at 467. 351 Ibid., at 467. These authors remark that ‘Prior to the melamine problem in China, there was a lack of understanding in China and, indeed, around the world, about the safe level of melamine in milk and dairy products’. Trace amounts of melamine were found in milk products in other countries, but this of course was quite different from deliberate addi- tion of melamine to such products, particularly from the legal standpoint given then existing law in China (and elsewhere) governing additives and marketing of unsafe products. 352 Ibid., at 467.
353 Zhang Zhiping, ‘Paying the Price’, Editors Desk, Beijing Review, 51, 40, 2 October 2008, at 2. 354 See 陈洪涛,《转型期中国行业协会自律功能探析——以三鹿事件为例》 [Chen Hongtao, ‘An Analysis of Chinese Trade Association’s Self-Regulatory Functions in the Transformative Period’ (the author was then a post-doctoral fellow of Tsinghua University ngo Research Center and associate professor of Northwest University of Politics and Law), available at http://www.cnki.net/KCMS/detail/detail.aspx?QueryID=14&Cur-Rec=1 &recid=&filename=PFEY200901010&dbname=CJFD0910&dbcode=CJFQ&pr=&urlid=&y x=&uid=WEEvREcwSlJHSldRa1FiNllNcnZLaWhWWVRKL0MzbllYU0hacTRuV211cC9Ld HZKaVFwbmJxczZ5SXNnb2Z3PQ==&v=MjE2OTRxVHJXTTFGckNVUkw2Zll1Wm5GeX ZuVkwzTU5Tdk9kN0c0SHRqTXJvOUVaSVI4ZVgxTHV4WVM3RGgxVDM=, last accessed 8 May 2014; and 张鸣,《从古代行会的违规处置谈起》, available at http://hsb.hsw .cn/2008-09/26/content_7111375.htm, last accessed 8 May 2014 [Zhang Ming, ‘How did Hanghui Deal with Violation of Industry Standards in Ancient China’ (the author was then Professor at Renmin University School of International Studies)]. 355 Fu and Nicoll, ‘Corporate Governance, supra note 131, at 108–109. 356 Zhao Litao and Lim Tin Seng, ‘The Tainted Milk Formula Scandal: Another Hard Lesson for China’, eai Background Brief No. 406, 29 September 2008, Executive Summary point 4 and text point 1.8, respectively. 357 Theodore J. Lowi, ‘Review: American Business, Public Policy, Case-Studies, and Political Theory’, World Politics, 16, 4, 1964, 677–715. See also Theodore J. Lowi, ‘Four Systems of Policy, Politics, and Choice’, Public Administration Review, 32, 4, 1972, 298–310.
358 See Li, PhD Thesis, supra note 128. This work treats changes in coordination structure as an independent variable, policy type as a moderating variable and coordination of multi- actor governance as a dependent variable. See also her article ‘李静 [Li Jing],《我国食 品安全监管的制度困境——以三鹿奶粉事件为例》 [Institutional dilemma in Chinese Food Safety Regulation: the Case of Sanlu Milk Powder Incident], available at http://www.cnki.net/KCMS/detail/-detail.aspx?QueryID=6&CurRec=4&recid=&filenam e=ZXGL200910011&dbname=CJFD0910&dbcode=CJFQ&pr=&urlid=&yx=&uid=WEEvRE cwSlJHSldRa1FiNllNcnZLaWhWWVRKL0MzbllYU0hacTRuV211cC9LdHZKaVFwbmJxcz Z5SXNnb2Z3PQ==&v=MDAyMzVuVXJ6TFB6WE1Zckc0SHRqTnI0OUVaWVI4ZVgxTHV4 WVM3RGgxVDNxVHJXTTFGckNVUkw2Zll1Wm5GeXY=, last accessed 8 May 2014. 359 See also Li, PhD Thesis, supra note 128, at 143. 360 Huang, Health, supra note 260, at 126–131. He reports (at 130) that Sanlu attempted (and apparently succeeded) in bribing Baidu in removing all negative news about Sanlu until September. Li, Policy Coordination, supra note 128, at 81–82 states that ‘Sanlu…paid… Baidu…to control and delete most negative information about the company’. On 13 September 2008, however, Baidu announced in a communiqué that it had rejected all such overtures: Francis Sun, ‘Sanlu Group and the Tainted Milk Crisis’, paper number 9B09M077 written under the supervision of Professor Shih-Fen Chen, Richard Ivey School of Business, University of Western Ontario, (Ivey Management Services, 2009), p. 20, Exhibit 2, available at http://www.asiapacific.ca/sites/default/files/sanlu.pdf, last accessed 26 January 2015.
However, in retrospect, problems in China’s dairy industry should not have been a surprise: rapid growth fueled by large investments from multinational dairy firms based in New Zealand, Australia, Europe and elsewhere; development of a highly modern and concentrated process- ing sector that obtained its raw materials from millions of small, poor and uneducated traditional farmers; and government support and encouragement for growth with little emphasis on inspection and safety issues.361
Such an explanation is more balanced than the preceding explanations, because it takes both domestic and international contexts into account. Though couched in more general terms, it is broadly consistent with the argu- ment being made here. It focuses mainly on institutions, and notably on insti- tutions similar to those emphasized here (multinational firms, economic sector and government). In addition, it identifies three key dimensions as being fdi, a segmented domestic economy characterized by gross inequalities of resources and the unbalanced role of government. However, it takes account only of the organisational level of analysis. It does not show how the three dimensions are connected, except by temporal coincidence. As with other explanations, it tends to assume a market in which the government intervenes only in case of market failure. It also conceives of the role of government only in terms of specific policies. Finally, as with most explanations focusing on market failure, it does not analyse in detail the specific characteristics of regu- latory institutions in China at the time. This chapter, though drawing partly on previous sources, seeks to offer a different, more theoretically informed explanation. It argues that the melamine crisis was the result of the collision of three worlds, or, to put it more theoreti- cally, the intersection of three semi-autonomous social fields. A social field refers to ‘the totality of co-existing facts that are conceived of as mutually interdependent’.362 It constitutes a set of social relations, with its own dynam- ics, actors, struggles and stakes.363 As envisaged here, social fields have fluid or negotiable boundaries but nonetheless involve some systematic character, with a relatively high degree of social interaction, a shared focus and a measure of coherence. Each world or social field had a dominant feature that I have called the leitmotif. As used here, leitmotifs are ideal types, which abstract a
361 Xiu and Klein, ‘Factors’, supra note 155, at 468. 362 Lewin, Field Theory, supra note 11, p. 240. 363 Bourdieu, ‘Law’, supra note 12.
364 On these three levels of analysis, see Robert R. Alford and Roger Friedland, Powers of Theory: Capitalism, the State and Democracy (Cambridge University Press, Cambridge, 1985), 16–18 and passim.
365 I adapt this point from the argument by Thomas G. Moore, China in the World Market: Chinese Industry and International Sources of Reform in the Post-Mao Era (Cambridge University Press, Cambridge, 2002), pp. 19–23 (hereafter Moore, World Market).
The third world was the world of government, regulatory policy and law. Its leitmotif was a concern for preservation of social stability. In the Chinese party-state at the time, three institutional features stood out: the role of the cpc, the fragmentation of administrative institutions (zhèngchū duōmén, 政 出多门) and the system of dual rule involving vertical leadership relations and horizontal professional relations. Domestic institutions entrusted with food safety regulation were very fragmented; this included the institutions charged with the responsibility for settling disputes. All of these features were consistent with, and in fact conducive to, an emphasis in ideology and policy on the preservation of stability. These institutional features help to explain decisions which were taken by individuals within institutions, and which were or can be ascribed to institutions, such as the lack of regulation before the crisis occurred, the failure of the Sanlu – Fonterra joint venture to recall defective products immediately, the lack of early communication by the joint venture to central government or the New Zealand government of dangers to public health, or the inadequate response at the local level once evidence of a serious food safety risk to public health became clear. The chapter analysed the melamine crisis from the perspective of institutional analysis, We can reformulate it, however, in terms of the leitmotifs of the three worlds of melamine as follows: In the short term, a system of food safety regulation based on fragmented authoritarianism proved to be unable to control the search for organisational profit or the indulgence of individual greed. In the longer term, stability won. When organizational profit and individual greed meet an overriding con- cern for institutional stability, the outcome will be shaped decisively by the main features of the institutions in question. The chapter tends to confirm this hypothesis. In the context of ‘fragmented authoritarianism’, ‘[b]ureaucratic middlemen tend to regard policies that are flexible and ambivalent as the equivalent of having no policies at all. … [P]olicy compliance depended cru- cially on the ability of top leaders to produce well-coordinated sets of clear, detailed policies’.366 Beginning in early September 2008, the highest level of the party-state took charge. It defined the priorities clearly as being to ensure the quality of dairy products and reassure the public, to restructure the dairy sector, to repair damage if possible and sanction offenders and to unify to a greater extent than previously the regulation of food safety. As Schroeder noted, dual rule frequently does not work in practice: ‘There is no dual rule;
366 Kenneth G. Lieberthal, ‘Introduction’, in Lieberthal and Lampton, Bureaucracy, supra note 145, at 15.
367 Paul E. Schroeder, ‘Territorial Actors as Competitors for Power: The Case of Hubei and Wuhan’, in Lieberthal and Lampton, Bureaucracy, supra note 145, at 286 [no italics in origin].
Introduction
This chapter, building on our analysis of the three worlds of melamine, consid- ers the emergence of modern Chinese food safety law. Starting in early September 2008, Party and central government leaders intervened decisively to break the logjam of the melamine scandal. Central government vertical leadership relations (tiáotiáo lǐngdǎo guānxì 条条 领导关系) trumped provin- cial- or city-level professional relations (kuàikuài yèwù guānxì 块块 业务关系). Modern Chinese food law emerged in this institutional and policy context. Following the 17 September State Council meeting, central government pur- sued four main priorities. ‘Central government’ refers here to the highest levels of the cpc and the State Council. The four priorities were, first, to ensure the quality of dairy products and reassure the public; second, to restructure the dairy sector; third, to repair damage if possible and sanction offenders; and, fourth, to unify to a greater extent than previously the regulation of food safety. The priorities were informed by the overriding objective of preserving social stability; by ‘informed’, I mean ‘oriented to’ in Weber’s sense of ‘subjectively consider[ing] such norms as valid and practically act[ing] according to them’.1 The preservation of social stability has long been a constant cpc policy (dang de zhengce), a term which embraces ‘(1) the political line of the Party; (2) the polarity (dual) norms of the Party; and (3) the policies of the Party’.2 Writing in 2000, Harro von Stenger remarked that, if we wish to understand the role of law in Chinese society, ‘the juricentric Western approach to China, which always looks for laws and speaks only about law-making’ is not appropriate…. Above the law, there are Party norms’.3 In his view, ‘[t]he absolutely dominant official norm in the prc is the political line of the Party. The essential feature of law-making in China…is its orientation towards one focal point: the main contradiction, the main task, the political line of the Party’.4 Admittedly, von
1 Max Weber on Law in Economy and Society, edited with Introduction and Annotations by Max Rheinstein; translation from Max Weber, Wirtschaft und Gesellschaft (2nd edition 1925) by Edward Shils and Max Rheinstein (Harvard University Press, Cambridge, 1966), p. 11. 2 Harro van Senger, ‘Ideology and Law-Making’, in Otto et al., supra Chapter 2 note 306, at 45. 3 Ibid., at 50. 4 Ibid., at 51.
© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004306929_004
Stenger was writing eight years before the melamine crisis, and in the interim circumstances in China may have changed dramatically, but the objective of social stability then was and still remains central to cpc and government policy. In developing policies in each area, the Party and the government gave spe- cial importance to law, including administrative and legal institutions, norms and dispute resolution processes. The government used administrative notices and regulations as a major (though not the only) instrument with regard to the first two priorities, while it employed legislation and other means in trying to create a more unified system of food safety regulation. Within the framework of its orientation toward the preservation of social stability, it also used law and legal processes for sanctioning and punishment. This pattern indicated that the party-state valued the legal system, within certain limits, as a resource for seeking to achieve its objectives. Its use of the legal system was occurred within the framework of the objective of preserving social stability, and it was shaped by the main features of the Chinese party-state: the role of the cpc, the institutional pattern of fragmented authoritarianism and the tension between professional relations and leadership relations. A major result of Party and government policies was the enactment in 2009 of China’s first Food Safety Law.5 We can understand the Food Safety Law best by viewing it from three interrelated yet distinct perspectives (see Figure 3.1). Starting with the most abstract, first, the Food Safety Law should be under- stood within the framework of the objective of preserving social stability. This objective conditioned and informed the four main policies and the text of the Food Safety Law. Second, the chapter seeks to understand the Food Safety Law in its policy context. The 2009 Food Safety Law was part of a set of policies, norms (includ- ing laws, administrative regulations and other rules) and legal and administra- tive processes which were aimed at the preservation of social stability and which were informed by the main features of the Chinese party-state. The set of policies comprised, not only enacting a national food safety law, but also ensuring the quality of dairy products, restructuring the dairy sector and the management of law, sanctions and compensation for harm. The 2009 Food Safety Law emerged in this context. The chapter argues that it is important to take the general ideological framework, the context and the text of the Food
5 Food Safety Law of the People’s Republic of China, adopted at the 7th Session of the Standing Committee of the 11th National People’s Congress of the People’s Republic of China on 28 February 2009 and promulgated and came into force on 1 June 2009 (hereafter 2009 Food Safety Law).
Ensure Product Quality and Reassure Public
Enact New Restructure Food Safety Dairy Sector Law
Repair Preserve Damage and Social Stability Sanction O fenders
Figure 3.1 Meta-policy and policy contexts of the 2009 Food Safety Law
Safety Law seriously. It argues that the text of the Food Safety Law is best understood as part of a policy package or set, rather than on its own, and that it was influenced and informed by the other elements in the set. The argument, as will be seen, is exemplified most strikingly in the treatment of small work- shops. The example of small workshops shows how reference to certain fea- tures of the context can illuminate specific legislative provisions. It also illustrates clearly the ways in which institutional patterns and institutional politics can shape the details of reform legislation. Third, and most concretely, the chapter analyses the Food Safety Law by focusing on the text of the legislation and the implementing regulation. This classic legal perspective identifies the objectives, scope, substantive provisions and array of sanctions provided by the Food Safety Law and other legislation to which it refers. It reveals that, in conceptual and legal terms, the 2009 Food Safety Law represented a very significant break with its predecessor, the 1995 Food Hygiene Law. At the same time, it shows that, nevertheless, the Food Safety Law demonstrated considerable continuity with the Food Hygiene Law
Ensuring the Quality of Dairy Products
The Need to Protect Public Health and Reassure the Public Public confidence in food safety in China plummeted as a result of the melamine scandal. People were bitter, and their reactions were pungent. The following verse was reported to have been circulated widely on social media and elsewhere on the internet:
6 Decision of the State Council about Further Strengthening Food Safety, issued on 9 January 2004, effective date 9 January 2004, (No. 23 [2004] of the State Council), CLI.2.55522(EN), Chinalawinfo.
China has successfully rid [us] of chemistry illiteracy through food education: we have learned of paraffin wax through rice; we have learned of ddvp (Dichlorvos) through hams; we have learned of Sudan dyes from salted eggs and chili sauce; we have learned of formalin from hotpot; we have learned of sulfur from dates and white fungus; we have learned of copper sulfate from black fungus; and today, Sanlu Group has taught us melamine and its chemistry reaction.7
Restoring public confidence in the diary section and in food safety regulation was consequently a very high priority for central government. The State Council instructed the Hebei Provincial Government to take mea- sures to stop Sanlu’s production.8 The day after the State Council meeting, sev- eral of the ministries most directly concerned with the scandal adopted a series of measures intended to ensure the quality of dairy products and to show the public that central government was taking action to do so. Major food producers, including Sanlu, had since 2000 often been exempt from inspection. They were entitled to label their products to this effect. The General Administration of Quality Supervision, Inspection and Quarantine (aqsiq) Measures on Exemption from Inspection of Food Products had allowed any company to apply for such exemption if ‘they had a long-standing quality record, large market share, and implemented standards up to or above national or international levels’.9 Products which passed national or
7 English Edition Staff, ‘Timeline for China’s Tainted Milk Scandal’, 23 September 2008, avail- able at http://www.eeo.com.cn/ens/feature/2008/09/23/114549.html, last accessed 1 April 2012. On the role of the media in the melamine crisis, see also [in English] Robert Lawrence Kuhn, How China’s Leaders Think: The Inside Story of China’s Report and What This Means for the Future (John Wiley & Sons (Asia) Ptd Ltd, Singapore, 2010), at 311–312; Susan L. Shirk, ‘Changing Media, Changing China’ in Shirk, Media, supra Chapter 2 note 285, at 18. On online media, see Xiao Qiang, ‘The Rise of Online Public Opinion and Its Political Impact’, in Shirk, Media, supra Chapter 2 note 285, pp. 202–224. 8 Xinhua Net, ‘The State Council Made Six Decisions on Sanlu Milk Event’, 13 September 2008, available at http://news.xinhuanet.com/newscenter/2008-09/13/content_9974780.htm [available only in Chinese] last accessed 9 February 2015. 9 Measures for the Administration of Exempting Products from Quality Supervision and Inspection (adopted after deliberation at the Executive Meeting of the State General Administration for Quality Supervision, Inspection and Quarantine on 21 November 2001 and promulgated for implementation) (Order of the State General Administration for
Quality Supervision, Inspection and Quarantine (No.9)) (repealed on 18 September 2008), CLI.4.38219(EN) Chinalawinfo, Art. 8. 10 Decision of the General Administration of Quality Supervision, Inspection and Quarantine on Repealing the Measures for the Administration of the Exemption of Products from Quality Supervision and Inspection, adopted and promulgated on 18 September 2008 (Order of the State General Administration for Quality Supervision, Inspection and Quarantine (No.109)), CLI.4.108639(EN), Chinalawinfo. 11 国家质量监督检验检疫总局关于加强乳制品生产许可工作的通知 [Notice on Strengthening Production Licensing of Dairy Products] (issued by aqsiq No. 757, Oct. 12, 2008), CLI.4.112933 Chinalawinfo. (Order of the Department of Supervision on Food Production of the State General Administration for Quality Supervision, Inspection and Quarantine No. 757 of 2008); see also World Trade Organization, Trade Policy Review Body, 31 May and 2 June 2010, Trade Policy Review, China, Record of the Meeting, Addendum. Chairperson: H.E. Mr Bozkurt Aran (Turkey). WT/TPR/M/230/Add.1, 22 February 2011. World Trade Organization, Geneva, Question by Brazil p. 15 Question 24. 12 Xiu and Klein, ‘Factors’, supra Chapter 2 note 155, at 468. 13 Corne, Foreign Investment, supra Chapter 2 note 306, p. 79, which at 62–80 discusses the different types of administrative rules. See also the following chapters in Otto et al., supra Chapter 2 note 306: Jan Michiel Otto and Yawen Li, ‘An Overview of Law-Making in China’, pp. 1–18; Chaoyang Jiang, ‘Departmental Rule-Making in the People’s Republic of China’,
The institutional fragmentation of the Chinese food safety regime meant that the melamine crisis concerned numerous ministries and ministry-level central government organisations. They included the Ministry of Agriculture, the Ministry of Health, the State Administration of Industry and Commerce (saic), the General Administration of Quality Supervision (aqsiq), the Ministry of Industry and Information Technology, and the Ministry of Public Security. On 21 September these ministries and organisations jointly issued a notice to inspect and rectify dairy processing enterprises.14 On the same day aqsiq requested by administrative circular the unification on a national scale of all inspection methods and inspection equipment used by local quality supervision administrations.15 Then, on 22 September Mengniu and 108 other manufacturers of dairy products and 207 distributors signed a Quality Integrity Declaration.16 The following day all milk stations nationwide established spe- cial rectification leading groups on production and sales, financial support and supervision of the dairy industry.17 On 27 September the State Council enacted Rules on Supervision of Dairy Products Producing Enterprises on Their Implementation of Quality Safety Responsibilities.18
pp. 105–116; and Jean-Pierre Cabestan, ‘Administrative Law-Making in the People’s Republic of China’, pp. 175–188. 14 China News, ‘Li Yizhong: Urgently Starting to Rectify Milk Product Process Enterprises’ [Li Yizhong: Jinji Kaizhan Naizhipin Jiagong Hangye Zhengdun Guifan] [only available in Chinese], 21 September 2008, available at http://www.chinanews.com/cj/cyzh/ news/2008/09-21/1388576.shtml, last access 13 February 2015. 15 ‘aqsiq Issued A Notice To Further Strengthen The Work Of Supervising And Inspect ing The Milk Products’ [Zhijian Zhongju Fachu Tongzhi: Jinyibu Jiaqiang Ruzhipin Jiandu Jianyan Gongzuo] [only available on Chinese], China Standards Review, 2008–10, pp. 4, available at http://www.cnki.com.cn/-Article/CJFDTotal-ZBZD200810004.htm, last accessed 13 February 2015. 16 People’s Republic of China, Ministry of Commerce, Economic and Commercial Counsellor’s Office of the Embassy of the People’s Republic of China in the Republic of Lebanon, ‘China Commercial Ministry Spokesperson’s Remarks on Some Countries’ Restrictions on Chinese Export Milk and Dairy Products’, 10 October 2008, available at http://lb2.mofcom.gov.cn/article/headnews/200810/20081005-848706.shtml, last accessed 27 January 2015. 17 Xinhua Net, ‘Many Provinces Immediately Takes Special Action of Milk State Rectification’, 27 September 2008, available at http://www.xinhuanet.com/chinanews/2008-09/27/ content_14516363.-htm, [available only in Chinese] last accessed 9 February 2015. 18 乳制品生产企业落实质量安全主体责任监督检查规定 [Rules on Supervision of Dairy Products Producing Enterprises on Their Implementation of Quality Safety Responsibilities] [Rǔzhìpǐn Shēngchǎn Qǐyè Luòshí Zhìliàng Ānquán Zhǔtǐ Zérèn Jiāndū Jiǎnchá Guīdìng] (promulgated by aqsiq, Sep. 27, 2009), CLI.4.125957, CHINALAWINFO.
The qsdp Regulation Numerous other central government measures were directed at improving product quality and clarifying the burden of responsibility for food safety. On 9 October 2008, with immediate effect, the State Council, the top of the admin- istrative hierarchy, promulgated a Regulation on the Supervision and Administration of the Quality and Safety of Dairy Products (hereinafter the qsdp Regulation).19 The qsdp Regulation aimed to ensure product quality, strengthen supervision, ensure public health and promote development of the industry.20 It provided that the first responsibility for the quality and safety of dairy products rested with dairy animal raisers, fresh milk purchasers, dairy product production enterprises and sellers.21 Local people’s governments at and above county level were to be responsible for ensuring product quality and safety within their respective areas.22 Unfortunately, the qsdp Regulation fol- lowed the familiar pattern of ‘one supervision link subject to the supervision of one department’23 Different administrative departments were responsible for supervision and administration of different specific tasks: the Ministry of Agriculture for stockbreeding and veterinary departments for raising of ani- mals and production and purchase of fresh milk, aqsiq for production, import and export of dairy products, saic for the sale of dairy products, food and drug departments for catering services relating to dairy products, health depart- ments for comprehensive coordination, investigation of and dealing with major food safety accidents, and ‘other relevant departments’ for ‘other tasks’.24 Responsibility remained fragmented, as before the crisis. Consequently, the
19 乳品质量安全监督管理条例 [Regulation on the Supervision and Administration of the Quality and Safety of Dairy Products] [Rǔpǐn Zhìliàng Ānquán Jiāndū Guǎnlǐ Tiáolì] (adopted at the 28th executive meeting the State Council on 6 October 2008 and promul- gated and came into force by State Council Order No. 536 on 9 October 2008) CLI.2.109190(EN) Chinalawinfo. 20 qsdp Regulation, (adopted at the 28th executive meeting the State Council on 6 October 2008 and promulgated and came into force by State Council Order No. 536 on 9 October 2008) CLI.2.109190-(EN) Chinalawinfo, Article 1. 21 Ibid., Article 3. 22 Ibid., Article 4, paragraph 1. 23 Decision of the State Council about Further Strengthening Food Safety, issued on 9 January 2004, effective date 9 January 2004, (No. 23 [2004] of the State Council), CLI.2.55522(EN), Chinalawinfo, Section 3 ‘Several Significant Measures’. 24 qsdp Regulation, (adopted at the 28th executive meeting the State Council on 6 October 2008 and promulgated and came into force by State Council Order No. 536 on 9 October 2008) CLI.2.109190-(EN) Chinalawinfo, Article 4, paragraph 2.
25 Ibid., Article 6. 26 Ibid., Article 7. 27 Ibid., , Article 24. 28 Ibid., Article 9. 29 Ibid., Article 30. 30 Ronald H. Schmidt, Hazard Analysis Critical Control Point (haccp): Overview of Principles and Applications (Food Science and Human Nutrition Department, University of Florida, Gainesville, fl, 1996), quoted in Debby Newslow, ‘Hazard Analysis Critical Control Point (haccp)’, in Ronald H. Schmidt and Gary E. Rodrick (eds), Food Safety Handbook (Wiley-Interscience, Hoboken, nj, 2003), pp. 363–379 at 364 (hereafter Schmidt and Rodrick, Handbook). 31 See Debby Newslow, ‘Hazard Analysis Critical Control Point (haccp)’, in Schmidt and Rodrick, Handbook, supra note 30, at 365–371; Michael van Schothorst and Susan E. Jongneel, ‘General Aspects of Microbiological Food Safety: Sources of Contamination, Processes and Health Risks’, in Kees van der Heijden, Maged Younes, Lawrence Fishbein and Sanford Miller (eds), International Food Safety Handbook: Science, International Regulation, and Control (Marcel Dekker, New York and Basel, 1999), pp. 397–408; Richard Lawley, Laurie C. Curtis and Judy Davis, The Food Safety Hazard Guidebook (Royal Society of Chemistry, London, 2nd edition 2012), pp. 473–486.
32 qsdp Regulation, (adopted at the 28th executive meeting of the State Council on 6 October 2008 and promulgated and came into force by State Council Order No. 536 on 9 October 2008) CLI.2.109190-(EN) Chinalawinfo, Article 31. 33 Ibid., Article 40. 34 Pei et al., supra Chapter 2 note 294, at 419. See also Li Bai, Cheng-lin Ma, Yin-sheng Yang, Shu-kuan Zhao and Shun-lung Gong, ‘Implementation of haccp system in China: A sur- vey of food enterprises involved’, Food Control, 18, 2007, 1108–1112; Shaosheng Jin, Jiehong Zhou and Juntao Ye, ‘Adoption of haccp system in the Chinese food industry: A com- parative analysis’, Food Control, 19, 2008, pp. 823–828; Eunice Taylor and Kevin Kane, ‘Reducing the burden of haccp on smes’, Food Control, 16, 2005, pp. 833–839. 35 qsdp Regulation, (adopted at the 28th executive meeting the State Council on 6 October 2008 and promulgated and came into force by State Council Order No. 536 on 9 October 2008) CLI.2.109190-(EN) Chinalawinfo, Article 44. 36 Ibid., Article 45. 37 Ibid., Article 54. 38 Ibid., Article 55. 39 Ibid., Articles 54 and 55; 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), CLI.1.17010(EN), Chinalawinfo, Articles 143 and 144.
40 qsdp Regulation, (adopted at the 28th executive meeting the State Council on 6 October 2008 and promulgated and came into force by State Council Order No. 536 on 9 October 2008) CLI.2.109190-(EN) Chinalawinfo, Article 56. 41 According to Chinese law, interpretation of legal norms in China is allocated to various authorities. First, the Standing Committee of the National People’s Congress (scprc) has the power to interpret the Constitution and to interpret laws: Constitution of the People’s Republic of China, Article 67(1), (4), available at http://www.npc.gov.cn/englishnpc/ Constitution/2007-11/15/content_1372965.htm, last accessed 21 January 2015. Such interpre- tations or additional stipulations may be provided ‘[i]n cases where the limits of articles of laws and decrees need to be further defined or additional stipulations need to be made’: 全国人民代表大会常务委员会关于加强法律解释工作的决议 Quaking Rénmín Daibiǎo Dàhuì Chángwù Wěiyuanhui Guānyu Jiāqiang Fǎlǜ Jiěshi Gōngzuo Dē Juéyì [Resolution of the Standing Committee of the National People’s Congress Providing an Improved Interpretation of the Law] (adopted at the 19th Meeting of the Standing Committee of the Fifth National People’s Congress on 10 June 1981), reprinted in The Laws of the People’s Republic of China 1979–1982 (compiled by the Legislative Affairs Commission of the Standing Committee of the National People’s Congress of the People’s Republic of China) (Foreign Languages Press, Beijing 1987) [hereinafter SCNPC 1981 Resolution]. Article 1. The scnpc also has power to give an interpretation of decision in instances in which the interpretations given by the Supreme People’s Court and the Supreme People’s Procuratorate ‘are in variance with each other in principle’: scnpc 1981 Resolution, Article 2. Second, the Supreme People’s Court has power ‘to give[…] interpretations on questions concerning specific application of laws and decrees in judicial proceedings’: Organic Law of the People’s Courts of the People’s Republic of China, Article 33, adopted at the Second Session of the Fifth National People’s Congress on July 1, 1979, promulgated by Order No.3 of the Chairman of the Standing Committee of the National People’s Congress on July 5, 1979 and effective as of January 1, 1980; amended according to the Decision Concerning the Revision of the Organic Law of the People’s Courts of the People’s Republic of China adopted at the Second Meeting of the Sixth National People’s Congress on September 2, 1983, available at http://www.china.org.cn/english/government/207254.htm, last accessed 21 January 2015. The scope of this interpretation is rephrased in the 1981 scnpc Resolution as being limited to ‘questions involving the specific application of laws and decrees in court trials’: scnpc 1981 Resolution, Article 2. Third, the State Council has the power to provide interpretation of ‘questions involving the specific application of laws and decrees in areas unrelated to judicial and procuratorial work’: scnpc 1981 Resolution, Article 3. Fourth, the Supreme People’s Procuratorate has power to give interpretations on ‘questions involving the specific application of laws and decrees in the procuratorial work of the procurator- ates’: scnpc 1981 Resolution, Article 2. Fifth, local people’s congresses are entitled to pro- vide interpretations or further stipulations in ‘cases where the limits of locally enacted
The ppfm Measures The Ministry of Agriculture followed on 4 November 2008 by adopting the Administrative Measures for the Production and Purchase of Fresh Milk (here- inafter ppfm Measures).43 The ppfm Measures thus specified in more detail certain matters already covered by the State Council qsdp Regulation.
rules and regulations need to be further defined or additional stipulations need to be made’: scnpc 1981 Resolution, Article 4. Sixth, ‘the competent departments under the people’s governments of the provinces, regions and municipalities directly under the Central Government’ are empowered to provide interpretations on ‘questions involving the specific application of local rules and regulations’: scnpc 1981 Resolution, Article 4. For further discussion, see Albert Hung-yee Chen, An Introduction to the Legal System of the People’s Republic of China (Butterworths Asia, Singapore, 1992, 4th impression 1994), pp. 95–102; Stanley Lubman, Bird in a Cage: Legal Reform in China After Mao (Stanford University Press, Stanford, 1999), 145–147, 282–287; and Jianfu Chen, ‘Unanswered Questions and Unresolved Issues: Comments on the Law on Law-Making’, in Otto et al., supra Chapter 2 note 306, pp. 235–256, who notes (at 248–251)that scnpc 1981 Resolution deals only with rules promulgated by legislative authorities and not with administrative regulations or other government rules (249), the State Council and its composite bodies have ‘exclusive control over administrative regulations and rules, not only making but also interpreting them’ (249), the Supreme Court is the most active interpreter (249–250) , under the Several Provisions on Judicial Interpretation which the Supreme Court issued in 1997 ‘judicial interpretations are to be made by the Supreme People’s Court only’ (250), such interpretations are to have the effect of law (250) and the Supreme People’s Court is not entitled to interpret ‘administrative regulations, government rules, or local rules and regulations’ (251). Professor Chen’s analysis is reprinted in his book Chinese Law: Context and Transformation (Martinus Nijhoff, Dordrecht, 2008), pp. 198–202. For an instructive case study, see John C. Nagle, ‘The Missing Chinese Environmental Law Statutory Interpretation Cases’, Paper 552, Scholarly Works, ndl Scholarship, Notre Dame Law School, 1996, available at http://scholarship.law.nd.edu/law_faculty_scholarship/552, last accessed 21 January 2015 [published in New York University Environmental Law Journal, 5, 1996, pp. 517–555]. 42 SCNPC 1981 Resolution, Article 3. 43 Administrative Measures for the Production and Purchase of Fresh Milk (adopted at the 8th Standing Meeting of the Ministry of Agriculture on 4 November 2008, and promul- gated by Order No. 15 of the Ministry of Agriculture and came into effect on 7 November 2008), CLI.4.110498(EN), Chinalawinfo.
However the Measures applied only to agricultural products, for which the Agricultural Ministry alone was responsible. Dairy animal raisers, fresh milk purchasers and fresh milk transporters were to bear the first responsibilityfor quality and safety of the dairy products which they produce, purchase, trans- port or sell.44 Fresh milk was required to meet national standards,45 and it was forbidden to add any substance to fresh milk during production, storage, trans- portation or safe.46 Stockbreeding and veterinary departments at or above county level were responsible for supervision and administration concerning the raising of dairy animals and production and purchase of fresh milk.47 They were required to make random quality inspections.48 They also had powers to make on-site inspections of farms, milk purchase stations and milk transport vehicles, to consult and copy relevant records and documents, to seal up or detain fresh milk that failed to meet standards ‘as proved by evidence’, to seal up any place ‘suspected of engaging in illegal production and operation of fresh milk’, and ‘other powers vested by laws and administrative regulations’.49 In principle, therefore, they had broad powers of control over milk purchasing stations. The Measures also provided that entities and individuals had a ‘right to tip off any illegal act’ regarding production and operation of fresh milk to stockbreeding and veterinary departments,50 which on receiving such information were required immediately to investigate and ‘give punishment accordingly’, as well as replying to the party which furnished the information if the party left its real name with the authority.51 This provision did not however sufficiently guaran- tee the confidentiality and safety of the ‘whistleblower’. On 5 June 2009 the Ministry of Agriculture issued a Circular on implementa- tion of the Food Safety Law (discussed later), urging all administrative authori- ties involved in food safety regulation to cooperate, strengthen supervision and implement the law correctly.52 The Rules on Supervision of Dairy Products
44 ppfm Measures, (adopted at the 8th Standing Meeting of the Ministry of Agriculture on 4 November 2008, and promulgated by Order No. 15 of the Ministry of Agriculture and came into effect on 7 November 2008), CLI.4.110498(EN), Chinalawinfo, Article 4. 45 Ibid., Article 6, paragraph 1. 46 Ibid., Article 6, paragraph 2. 47 Ibid., Article 5. 48 Ibid., Article 32. 49 Ibid., Article 33. 50 Ibid., Article 37, paragraph 1. 51 Ibid., Article 37, paragraph 2. 52 People’s Republic of China, Ministry of Health, Circular on the Relevant Issues on Implementation of the Food Safety Law, unofficial translation available at United States
Producing Enterprises on their Implementation of Quality Safety Responsibilities (Gui Zhi Jian Shi Jian No. 437 of 2009) sought to strengthen supervision so that enterprises would implement laws, regulations and stan- dards regarding food safety.53
Restructuring the Dairy Sector
Dairy Farmers Hand-in-hand with ensuring the quality of dairy products went the restructur- ing of the dairy sector. Building on policies pursued since 2006,54 and reflect- ing the August 2007 State Council White Paper on Food Safety,55 the government’s plans for economic restructuring focused on regulating and consolidating the different parts of the dairy sector. Food production and pro- cessing in China were (and are) characterized by great diversity in size, resources and capability. At the level of agricultural production, this was mainly the result of the breakup of large collective farms. As of 2006, China had more than 200 million agricultural holdings, some as small as 0.07 hectares.56 In turn, the food processing sector as of 2008 comprised a total of
Department of Agriculture, Foreign Agricultural Service, Global Agricultural Information Network (gain), China – People’s Republic of, moh Circular on Food Safety Law, gain Report Number CH9078, 28 September 2009, http://gain.fas.usda.gov/Recent%20 GAIN%20Publications/MOH%20Circular%20on%20Food%20Safety%20Law_Beijing _China%20-%20Peoples%20Republic%20of_9-28-2009.pdf, last accessed 10 December 2014. 53 See also World Trade Organization, Trade Policy Review Body, 31 May and 2 June 2010, Trade Policy Review, China, Record of the Meeting, Addendum. Chairperson: H.E. Mr Bozkurt Aran (Turkey). WT/TPR/M/230/Add.1, 22 February 2011. World Trade Organization, Geneva, Question by Brazil p. 15 Question 24. This report summarises mea- sures to establish and improve testing systems, improve quality safety standards and adopt risk monitoring and testing. 54 See http://www.hkexnews.hk/listedco/listconews/sehk/2010/1126/01117/EWPDAIRY -2010110911-.pdf, p. 70, last accessed 20 April 2012. 55 State Council, White Paper on the Quality and Safety of Food in China, available at http:// www.-china.org.cn/english/news/221274.htm, last accessed 8 December 2012 (hereafter State Council, 2008 White Paper). 56 According to Chinese Government statistics in 2009: Sarah K. Lowder, Jakob Skaet and Saumya Singh, ‘What do we really know about the number and distribution of farms and family farms in the world?’ Background paper for The State of Food and Agriculture 2014, esa Working Paper No. 14–02, Agricultural Development Economics Division, Food and Agriculture Organization of the United Nations, Rome, April 2014, p. 2, available at http:// www.fao.org/docrep/019/i3729e/i3729e.pdf, last accessed 21 January 2015.
448,000 enterprises. They included 26,000 large companies, which comprised only 5.80% of total enterprises but accounted for 72% of market share, 69,000 medium-sized enterprises with more than 10 employees which accounted for 15.40% of total enterprises and 18.70% of the market, and 353,000 small busi- ness or workshops with fewer than 10 employees which made up 78.8% of total enterprises but had a market share of only 9.30%. The last group accounted for the largest share of food safety incidents,57 though as the melamine crisis suggests these were not always the most serious or most publicized inci- dents.58 Restructuring was already underway before 2008, but the melamine scandal provided an occasion for more targeted, more detailed policies, which were enacted into law. The State Council qsdp Regulation of 9 October 2008 sought to provide a more secure normative framework for the organization of the dairy sector. It laid down specific requirements for setting up a dairy farm,59 for setting up a fresh milk purchasing station60 or for engaging in the production of dairy products.61 Dairy product producers were required to inspect dairy products batch by batch before delivery.62 In November 2008 State Council issued the Circular of the General Office of the State Council Regarding the Transmittal of the Outlines of the Restructuring and Revitalization Plan for the Dairy Industry issued by ndrc and Other Ministries.63 The Outlines called for
(ii) comprehensive inspections and rectification of problems at each stage along the chain of the dairy industry…; (ii) improving and complementing relevant laws and regulations, perfecting product quality
57 State Council, 2008 White Paper, supra note 434;; Li Bai,Chenglin Ma, Shunlong Gong and Yinsheng Yang, ‘Food safety assurance systems in China’, Food Control, 18, 2007, 480–484 at 483. For similar statistics about firm size and market share, see Information Office of the State Council of the People’s Republic of China, ‘China’s Food Quality and Safety’ (full text), 30 September 2007, available at http://ae.china-embassy.org/eng/zt/abc/t368309 .htm, last accessed 21 January 2015. 58 I am grateful to Dr Gudrun Wacker for this point. 59 qsdp Regulation, (adopted at the 28th executive meeting the State Council on 6 October 2008 and promulgated and came into force by State Council Order No. 536 on 9 October 2008) CLI.2.109190-(EN) Chinalawinfo, Article 12. 60 Ibid., Article 20. 61 Ibid., Article 28. 62 Ibid., Art. 34, paragraph 1. 63 See ‘Regulatory Overview’, available at http://iis.aastocks.com/20140715/001958974-13. PDF, last accessed 8 December 2014.
standards for dairy products, promoting the technology standardization for the production of fresh milk products, strengthening regulation of milk collection stations, promoting the implementation of the Good Manufacturing Practice for dairy products manufacturers: (iii) encourag- ing large scale breeding and farming, integration of production and sale of raw milk, optimizing the location of processors of dairy products, pro- moting the standardization and improving quality control of the dairy farming industry.64
This State Council Circular stated and summarized the main governmental priorities. Its basic assumption was that reducing the number of producers and increasing their size would facilitate governmental quality control, ensure application of food safety standards and lead to higher quality dairy products. Companies in the dairy sector reacted publicly to these developments. On 22 October 2008 Mengniu Laboratory Analysis Center was reported to have conducted thorough inspections on raw milk.65 According to an interview of the Vice-President of Inner Mongolia Yili Industrial Group Ltd. (‘Yili’), the company was making efforts to establish a system which both was capable of dealing with emergencies and also enhanced long-term administration guar- anteeing the safety of milk sources.66 The following day, according to news reports, Bright Dairy reportedly rejected decentralized milk supplies and con- ducted an id administration of 310,000 cows.67 Major dairy trade associations supported central government policy for restructuring the dairy sector. The Dairy Association of China, composed mainly of dairy farmers, repeated in May 2011 its support for government pol- icy. It considered that the main reasons for the melamine crisis lay in short- comings due to the structure of the dairy sector, not in a lack of standards, weak government enforcement of law or defective corporate governance and lack of corporate social responsibility. In this view, I speculate that it undoubt- edly was joined by the China Dairy Industry Association, whose 580 members
64 http://www.hkexnews.hk/listedco/listconews/sehk/2010/1126/01117/EWPDAIRY-20101109 -11.pdf, p. 71, accessed 11 April 2012. 65 Tencent, ‘Nearly 100 Chinese and Foreign Journalists Visited Mengniu and Experienced the Whole Process of Milk Production’, 22 October 2008, available at http://news.qq .com/a/20081022/002837.h-tm [available only in Chinese] last accessed 11 February 2015. 66 News report on internet, no longer available. 67 News reports on several internet sources, which are no longer available.
68 Food and Beverage Online, ‘China Dairy Industry Association’, available at http:// www.21food.co-m/showroom/195518/aboutus/china-dairy-industry-association.html, last accessed 27 January 2015. 69 These points are presented in more detail in Fu Weigang, ‘Safety in numbers is key to improving milk sector’, Global Times, Thursday 3 May 2012, available at http://business .globaltimes.cn/com-ment/2011-05/651716.htm, accessed 3 May 2012. The author is a researcher at the Shanghai Institute of Finance and Law. 70 Much of this paragraph is based on Claire Trevett, ‘Responsibly’, supra Chapter 2 note 277. 71 See also National Development and Reform Commission and Ministry of Industry and Information Technology, 12th Five-Year Plan for the Food Industry, available at http:// hk.lexiscn.com/latest_mes-sage.php?id=61009, last accessed 3 May 2012. 72 For an overview of the development of the Chinese dairy industry, see Dinghuan Hu, ‘China: Dairy product quality as the new driver’, p. 19, fao Corporate Document
Milk Collection Stations The size and fragmentation of the agricultural sector created public health risks and difficulties for governmental regulation. These problems were accen- tuated by the milk collection stations, which appeared to be the most problem- atic link in the dairy value chain. The Ministry of Agriculture ppfm Measures of 11 November 200873 sought to consolidate milk purchasing [collection] sta- tions. Provincial-level stockbreeding and veterinary departments were to work out a plan for stations ‘according to the principle of bringing convenience to dairy animal raisers and enhancing scale raising so as to scientifically and rea- sonably arrange the layout of fresh milk purchase stations’.74 The same depart- ments were to determine the quantity and scale of the stations. Opening of stations was subject to a formal procedure involving application to the county- level stockbreeding and veterinary department: the application required numerous documents, including a statement regarding health administration and quality safety guarantee.75 An official decision on the application was to be made within 20 days and based partly on an on-site inspection; the author- ity was required to give reasons for refusals.76 The permit was valid for two years, renewable by another original application.77 A station was required to test purchased fresh milk ‘regularly’ and ‘according to the national standards for the quality safety of dairy products’. Test fees were to be borne by the sta- tion itself, which was not allowed to collect fees from users or impute such fees to them ‘in any disguised form’.78 Fresh milk that did not meet national standards could not be sold.79 Milk purchasing stations were required to
Repository, available at http://-www.fao.org/docrep/011/i0588e/I0588E04.htm, accessed 20 March 2012. On reports from the China Consumers’ Association, see Zhou Wenting, ‘Food safety complaints more common’, China Daily, Tuesday, 1 November 2011, p. 4. On loss of public confidence among more than 70% of the population, see Wang Hongyi, ‘Most people uneasy about what they eat’, China Daily, Thursday, 31 May 2012, p. 7; see also Li Woke, ‘Food safety on the menu’, China Daily, Monday, 5 November 2012, p. 14. 73 Administrative Measures for the Production and Purchase of Fresh Milk (adopted at the 8th Standing Meeting of the Ministry of Agriculture on 4 November 2008, and promul- gated by Order No. 15 of the Ministry of Agriculture and came into effect on 7 November 2008), CLI.4.110498(EN), Chinalawinfo. 74 Ibid., Article 17, paragraph 1. 75 Ibid., Article 18. 76 Ibid., Article 19. 77 Ibid., Article 20. 78 Ibid., Article 22. 79 Ibid., Article 16.
Processors and Manufacturers While the agricultural sector was the responsibility of the Ministry of Agriculture, other ministries adopted specific measures which were addressed to different groups in the dairy production chain, namely processors, dairy product manufacturers and infant formula manufacturers. In June 2009 the ndrc and the Ministry of Industry and Information Technology issued the 2009 Amendment of Dairy Product Industry Policies. It replaced the early Entry Qualifications for Dairy Products Processing Industry, promulgated on 18 March 2008 and published on 21 March 2008,84 which the melamine scandal had demonstrated to be completely ineffective. The Amendment tightened conditions for entry into the dairy product processing and manufacturing industry. Enterprises were required to have a certain scale and capacity, to be able to ensure product quality, and, for dairy product processing and manufac- turing, to have a stable and controllable base of raw milk supply. Formula milk powder production plants, new processing projects and rebuilt project were required to have a specific proportion of their raw milk processing capacity
80 Ibid., Article 24. 81 Xiu and Klein, ‘Factors’, supra Chapter 2 note 155, at 468. 82 English Edition Staff, ‘Timeline for China’s Tainted Milk Scandal’, 23 September 2008, available at http://www.eeo.com.cn/ens/feature/2008/09/23/114549.html, last accessed 1 April 2012. 83 Economic Observer, ‘Milk Price May Be Raised, ndrc Monitor Urgently’ [in Chinese], 19 September 2008, available at http://www.eeo.com.cn/2008/0919/114138.shtml, last accessed 11 February 2015. 84 Available at http://www.gov.cn/gongbao/content/2010/content_1519506.htm [available only in Chinese], last accessed 11 February 2015. See also http://hk.lexiscn.com/latest _message.php?id=33075, accessed 11 February 2015.
Sanlu Bankruptcy Restructuring of the dairy sector was not due only to central government poli- cies targeted directly at the dairy sector. It also resulted from that fact that all major dairy companies, except Bright Dairy and Sanyuan, were directly impli- cated in the melamine scandal. Both Mengniu and Yili recalled tainted prod- ucts and apologized to the public. Both lost their status as a ‘Chinese national brand’. The products of both companies were de-listed by supermarkets in Hong Kong. In the case of Mengniu, the two largest shareholders reportedly sold a large number of shares as early as 5 August 2008. Mengniu had entered into a joint venture in 2006 with Arla Foods, the largest dairy product producer in Scandinavia, but on 17 September 2009 Arla issued a statement to the effect that tainted products had been recalled and production of milk powder at Mengniu Arla’s factory was suspended. Trading in Mengniu shares was sus- pended on the Hong Kong Stock Exchange, and company shares were reported to have dropped by 60% in value on 23 September 2008.87 Previously vibrant export markets, such as Malaysia, the Philippines, Singapore, Taiwan, Gabon, Tanzania, Burundi and Brunei now refused to sell Chinese dairy products.88
85 http://www.hkexnews.hk/listedco/listconews/sehk/2010/1126/01117/EWPDAIRY-20101109 -11.pdf, pp. 73–74, accessed 11 April 2012. 86 Chris Buckley, ‘China plans production controls for deadly melamine’, Reuters, Beijing, Thursday 22 January 2009, 2:04 est, available at http://www.chinadaily.com.cn/china/ 2009-01/09/content_7383880.htm, accessed 26 March 2012. 87 Parts of this paragraph are based on ‘Mengniu Dairy’ at http://en.wikipedia.org/wiki/ Mengniu_Dairy, last accessed 3 March 2014, and ‘Yili Group’ at http://en.wikipedia.org/ wiki/Yili_Group, last accessed 3 March 2014. 88 English Edition Staff, ‘Timeline for China’s Tainted Milk Scandal’, 23 September 2008, available at http://www.eeo.com.cn/ens/feature/2008/09/23/114549.html, last accessed 1 April 2012. For a critique of Chinese food safety practices as of 2011, see ‘Made in China: A Decade of Dangerous Food Imports from China’, Food & Water Watch, Washington dc, June 2011. Food & Water Watch is a non-profit ngo in the field of food, water and environ- mental policy.
In New Zealand a major discount retailing group reviewed 143 Chinese-made products and removed 4 products from its shelves.89 As in the us and the eu, Sanlu infant milk powder was not approved for sale in Canada, and border officials were instructed to increase security to guard against illegal imports.90 Other Chinese products, which may have been perfectly safe, suffered ‘collat- eral damage’ from being associated with unsafe dairy products.91 Of all companies, the most hard-hit, not surprisingly, was Sanlu. Its bank- ruptcy was inevitable. On 31 October an audit report and asset appraisal dis- closed that Sanlu was insolvent. On 27 October 2008 Beijing Sanyuan Foods Co. Ltd (‘Sanyuan’) had acknowledged for the first time that they were negotiating with Sanlu about merger and acquisition of Sanlu. Sanyuan was a state-owned company, and since it relied directly on self-sufficient dairy farms for milk it was not involved in the melamine scandal.92 The Sanyuan Board of Directors on 8 December approved a proposal to establish a subsidiary in Shijaizhuang City. On 13 December seven factories owned by Sanlu began to re-open after Sanyuan took custody of the operation, acquiring Sanlu’s assets at public auc- tion with specially tailored criteria. Subsequently one of Sanlu’s creditors filed an application for bankruptcy liquidation93 in the Intermediate People’s Court in Shijiazhuang. On December 23 it was reported that the Intermediate People’s Court declared acceptance of the bankruptcy petition for Sanlu. The following day Sanlu received a civil order of acceptance of the bankruptcy liquidation application from the same Court and the Court designated an administrator. Sanlu then entered into a Letter of Intent for Repayment to more than 20 agencies.
89 ‘The Warehouse pulls Chinese-made products’, The New Zealand Herald, Friday, 26 September 2008, available at http://www.nzherald.co.nz/fonterras-chinese-milk-scan- dal/news/article.cfm?c_id=1-502761&objectid=10534402, last accessed 3 May 2014. 90 Ben Rogers, ‘Vancouver dodges contaminated Chinese infant milk-powder scandal’, Straight Line, Vancouver’s Online Source, 16 September 2008, available at https://www .google.com.hk/search?q=v-ancouver+dodges+contaminated+chinese+infant+milk-pow der+scandal&oq=vancouver+dodges+-taminated+chinese+infant+milk-powder+scandal &aqs=chrome..69i57.13984j0j7&sourceid=chrome&-es_sm=93&ie=UTF-8, last accessed 5 May 2014. 91 See Hunan Liu, William A. Kerr and Jill E. Hobbs, ‘Product Safety, Collateral Damage and Trade Policy Responses: Restoring Confidence in China’s Exports’, Journal of World Trade, 43, 1, February 2009, 97–104. See also Stephanie Strom, ‘Pork deal renews u.s. fears about safety of food from China’, International Herald Tribute [now International New York Times], Friday, 31 May 2013, p. 16. 92 Fu and Nicoll, ‘Corporate Governance’. Supra Chapter 2 note 131, at 116. 93 See Ibid., at 117. The authors discuss Sanlu company structure, bankruptcy and liquidation and the out of court proceedings.
On 26 December a liquidation team moved into Sanlu.94 Not all creditors, which included farmers and milk station owners as well as other companies, received compensation, however.95 Nor did victims receive any compensation directly from the company. Sanlu’s joint venture partner, Fonterra, subsequently wrote off its us$114 million investment.96 In addition, Fonterra announced in late October 2009 the ‘retirement’ of the senior executive who had been one of its members on the Sanlu board and its representative on the Sanlu senior executive team; the executive was reported to have received a ‘golden handshake’ of over us$3.2 million (nz$3.7 million), which ‘included superannuation entitlements from… time with the [New Zealand Dairy Board in China], expatriate allowances,
94 For further discussion, see ‘Sanlu in Bankrupt Proceeding: Dairy company Sanlu goes bankrupt, spreading fears among creditors as well as victims of tainted milk’, available at http://english.caijing-.com.cn/2008-12-29/110043225.html, last accessed 31 March 2012; ‘Sanlu asserts ternary [sic] suspense open question “taking over” Sanlu “core” assets’, avail- able at http://www.sourcejuice.com/10-46572/2008/12/30/Sanlu-assets-ternary-suspense -open-question-taking-Sanlu-core/ last accessed 31 March 2012.. 95 ‘Sister Zhai’, a dairy farmer and milk station owner in Shijiazhuang, was an example: see ’Disadvantaged Farmers Aggrieved Dealer Baotuan Compensated 60% Of Sanlu – Melamine – Dairy Farmers’, available at http://business.ezinmark.com/disadvantaged -farmers-aggrieved-dealer-baotuan-compensated-60-of-sanlu-melamine-dairy-farmers -31e868772e4.html, last accessed 30 March 2012. The result was consistent with Fu and Nicoll’s remark that ‘corporate governance in China is primarily a tool of the state and state holding companies to coordinate competing interests among favoured groups (such as state bureaucracies, enterprises and foreign institutional investors) while hold- ing outside shareholder and stakeholder rights in check’: J Fu and Nicoll, ‘Corporate Governance’, supra Chapter 2 note 131, at 117. This state-led model of corporate gover- nance uses law as a coordinating device: see Curtis Milhaupt and Katharina Pistor, Law and Capitalism: What Corporate Crises Reveal about Legal Systems and Economic Development Around the World (University of Chicago Press, Chicago, 2008) and Chenxi Shi, Political Determinants of Corporate Governance in China (Routledge, Abingdon, 2012). 96 afp, ‘Ex-head of China milk-powder firm could face death penalty: lawyer’, afp 26 December 2008, available at http://www.google.com/hostednews/afp/article/ALeq M5iq43FrWYNfzSsvUYWiyKncxU-Augw, last accessed 20 September 2013. Earlier the loss was estimated at us$139 million: see ‘Contaminated Chinese milk costs Fonterra $139 mil- lion’, The New Zealand Herald, Wednesday, 24 September 2008, available at http://www .nzherald.co.nz/fonterras-chinese-milk-scandal/news/article.-cfm?c_id=1502761&objectid =10533919, last accessed 3 May 2014. On Fonterra’s strategy, see also Fran O’Sulliver, ‘Chairman should front up’, The New Zealand Herald, Wednesday, 24 September 2008, available at http://www.nzherald.co.nz/fonterras-chinese-milk-scandal/news/article.cfm?c_id=1 -502761&objectid=10533761, last accessed 3 May 2014.
Unexpected Consequences The melamine crisis had several unexpected but nonetheless direct and fore- seeable consequences for the consolidation of the Chinese dairy products market. The dramatic loss of public trust in domestic dairy products as a result of the melamine crisis opened up the Chinese market in dairy products, espe- cially infant formula, to foreign companies. Before the melamine scandal, the main domestic producers of dairy producers for the low end of the Chinese market comprised producers of powdered milk and liquid milk.99 Producers of powdered milk included Sanlu, the market leader with a market share of 18.26%; Yashili International Holdings Ltd with the second largest market share at 12.58%; Wandashan Dairy Company Ltd; and Qingdao Shengyuan Milk Company Ltd. Liquid milk producers included Yili, third-ranked among domestic dairy producers with a 8.83% market share; China Mengniu Dairy
97 Andrea Fox, ‘Fonterra’s $3.7m eased departure of “fall guy”’, The New Zealand Herald, Saturday, 31 October 2009, available at http://www.nzherald.co.nz/fonterras-chinese -milk-scandal/news/article.-cfm?c_id=1502761&objectid=10606469, last accessed 4 May 2014. 98 See ‘Fonterra chief takes step back on tainted milk case’, The New Zealand Herald, Sunday, 9 January 2009, available at http://www.nzherald.co.nz/fonterras-chinese-milk-scandal/ news/article.cf-m?c_id=1502761&objectid=10550518, last accessed 4 May 2014. Subsequently it was reported that Fonterra accepted the Chinese court judgments. Following the New Zealand government position, it did not condone the death penalty, but it ‘respect[ed] their rights to take a very serious attitude to what was an extremely serious scandal’: ‘Fonterra accepts Chinese court’s verdicts’, The New Zealand Herald, Sunday, 25 January 2009, available at http://www.nzherald.co.nz/fonterras-chinese-milk- scandal/news/article.cfm?c_id=1502761&objectid=10553485, last accessed 4 May 2014. The New Zealand Green Party condemned the use of the death sentence, as did Amnesty International: see ‘Greens condemn milk death sentences, Fonterra silent’, The New Zealand Herald, Friday, 23 January 2009, available at http://www.nzherald.co.nz/fonter- ras-chinese-milk-scandal/news/article.cfm?c_id=1-502761&objectid=10553250, last accessed 4 May 2014; and ‘Amnesty urges Fonterra to condemn executions’, The New Zealand Herald, Wednesday, 25 November 2009, available at http://www.nzh-erald.co.nz/ fonterras-chinese-milk-scandal/news/article.cfm?c_id=1502761&objectid=−10611509, last accessed 4 May 2014. 99 Statistics are drawn from Consulting Report of China’s Infant Powered Milk Industrial Dynamic and Investment Prospectus in 2009–2012 (2009–2012) 年中国婴幼儿奶粉产业 市场动态及投资前景咨询报告.
Company Ltd; Bright Dairy; and Sanyuan and others. The high end of the mar- ket was covered mainly by foreign producers, such as Mead Johnson, Wyeth, Dumex and others. The 2008–2009 period saw a rapid increase in dairy imports. Between 2008 and late 2009, the number of cows in the Chinese dairy sector decreased by 37% and milk supply was reduced by 50%, but nevertheless domestic milk prices declined by 24%.100 Despite rising demand, a drop in supply did not lead to higher prices for domestic dairy products. The paradox was only appar- ent: the relevant market for the supply of dairy products to Chinese consumers was now transnational. As summarized by a RaboBank report on the dairy sec- tor, ‘China, by linking hands with the world, now faces a new market era in which local wholesale prices and even raw milk prices are influenced by devel- opments beyond the Middle Kingdom’.101 Government restructuring policies to promote larger farms and vertical integration reduced supply, and with the declining demand for dairy products produced in China, foreign companies rapidly gained market share at the expense of Chinese firms. This was accentu- ated by the global financial crisis and consequent declining world market prices for dairy products.102 Foreign companies rapidly gained market share at the expense of Chinese firms. For example, Asahi Breweries of Japan began in September 2008 to mar- ket a new premium-quality liquid milk product costing almost twice as much as domestically produced equivalents; raw milk came from an Asahi joint ven- ture, Asahi Green Source Farm, in Shandong Province.103 Increased demand for foreign products after the melamine scandal became public led to a 60% increase in the price of foreign dairy products in the third and fourth quarters
100 Bram Prins, Co Daatselaar and Paul Galama, ‘Information about the People’s Republic of China: Results of the Global Dairy Farmers Congress 2009’, May 29th – June 4th 2009, Hangzhou – Hohot – Beijing, at 18, available at www. Globaldairyfarmers.com, last accessed 16 September 2013. Global Dairy Farmers (gdf) is a global platform for leading dairy farmers and the dairy industry. Mr Bram Pins was President of gdf as of 2009. 101 Tim Hunt, Hayley Moynihan and Mark Voorbergen, Global Dairy Outlook, Rabobank International Food & Agribusiness Research and Advisory, November 2010, p. 16, available at www.rabobank.com/far, last accessed 12 August 2013. 102 Ibid., p. 14, , who point out (at p. 15) that ‘in late 2008 and 2009 Chinese milk production fell far more than suggested by official figures’ . 103 Zhou Yan, ‘Overseas firms eye dairy industry’, China Daily, Wednesday, 24 September 2008, p. 14. For a detailed report of fdi and joint ventures in dairy sector as of mid-2012, see Lucy Hornby and Jane Lanhee Lee, ‘China lures global dairy producers’, International Herald Tribune [now International New York Times], Tuesday, 19 June 2012, p. 22.
104 Consulting Report of China’s Infant Powered Milk Industrial Dynamic and Investment Prospectus in 2009–2012 (2009–2012 年中国婴幼儿奶粉产业市场动态及投资前景咨 询报告). 105 Data from Report of Dairy Association of China. 106 Data from General Administration of Customs. 107 Data from General Administration of Customs. 108 Source: Consulting Report of China’s Infant Powered Milk Industrial Dynamic and Investment Prospectus in 2011–2015 (2011–2015 年中国婴幼儿奶粉产业市场动态及投资前景咨询 报告). 109 CHEMLINKED (China’s Chemical Regulatory News & Database), Baby Formula Regulatory Report, ‘China’s Regulatory Environment for Imported Baby Formula 进口婴 幼儿配方乳粉所面临的中国法规环境概览’, page 1, available at https://chemlinked .com/sites/default/files/preview-doc/sample27_chinas_regulatory_environment_for _imported_baby_formula.pdf, last accessed 10 December 2014. See also TUSIAD China Business Insight, ‘China’s Dairy Industry’, December 2013, available at http://www.tusiad .org/__rsc/shared/file/ChinaBusinessInsight-December2013.pdf, last accessed 22 December 2014. 110 CHEMLINKED (China’s Chemical Regulatory News & Database), Baby Formula Regulatory Report, ‘China’s Regulatory Environment for Imported Baby Formula进口婴 幼儿配方乳粉所面临的中国法规环境概览’, page 1, available at https://chemlinked .com/sites/default/files/preview-doc/sample27_chinas_regulatory_environment_for _imported_baby_formula.pdf, last accessed 10 December 2014.
By late 2013, Abbott Laboratories (usa), Mead Johnson Nutrition Company (usa), Danone sa (France) and Nestle sa (Switzerland) were also among the main infant milk sellers in the country. All purchased base milk powder from Fonterra for processing.111 In fact, as of September 2013 Fonterra reportedly supplied 90% of milk powder imported into China and was planning to intro- duce its own-brand milk formula,112 despite having been one of six foreign dairy companies in China which were fined a total of us$109 million for anti- competitive behaviour and price fixing.113 In August 2014, the International New York Times reported that Fonterra, seeking a new foothold in the Chinese market, now intended to invest more than us $500 million in another Chinese manufacturer of infant formula. The headline read ‘Food safety underpins China baby-milk deal’, and the report began by recalling the melamine scandal which still spread its shadow over the Chinese dairy sector.114 A related consequence of the melamine crisis was a rapid increase in paral- lel imports, both legal and illegal, of dairy products from Hong Kong and Macau. Such imports resulted from the fact that food safety remained a sub- ject of continuing and increasing public concern.115 The increase in specula- tion and parallel imports led to attempts by neighbouring Hong Kong and Macau governments to limit exports of infant formula to the Chinese main- land. In March 2013 Hong Kong introduced a ban on unlicensed milk powder exports. It was prohibited to export more than 1.8kg of infant formula at one time; sanctions could amount up to hk$500,000 (then us$64,282) and up to two years in prison.116 Just before the ban came into effect, several people were
111 ‘Fonterra milk powder challenged in China’, Shenzhen Daily, Wednesday 18 December 2013, p. 6, 112 Reuters (Wellington), ‘Fonterra pushes plans for own-brand milk in China’, South China Morning Post, Thursday, 26 September 2013, p B2. 113 Amy Qin and Edward Wong, ‘China fines 6 firms over pricing of milk powder’, International Herald Tribute [now International New York Times, Thursday, 8 August 2013, p. 14.]. 114 Neil Gough, ‘Food safety underpines China baby-milk deal’, International New York Times, Thursday, 28 August 2014, p. 15. 115 Wang Hongyi, ‘Food safety tops public concerns’, China Daily, Wednesday, 21 August 2013, p. 4, referring to a report by the Public Opinion Research Laboratory and Crisis Management Center, Shanghai Jiao Tong University; Emily Tsang and Celine Sun, ‘Mums say hk still best for milk buys’, South China Morning Post, Monday, 8 July 2013, p. 1. 116 Import and Export (General)(Amendment) Regulation 2013 (with effect from 1 March 2013) – Quantity of Powdered Formula for Persons Departing from Hong Kong, Available at http://www.customs.gov.hk/en/whats_new/API/, last accessed 18 March 2015. See also Li Yao, ‘hk sets baby formula limits’, China Daily, Monday, 4 March 2013, p. 4.The
Law, Sanctions and Managed Justice
Party and Government Law, legal institutions and legal processes were central to the Chinese party- state’s reaction to the melamine scandal and also to victims’ search for jus- tice; this was quite apart from the fact that most policies regarding the quality of milk products or structural reforms were encapsulated in legisla- tion or other normative documents. What role did various party-state institutions, including courts, play in meting out sanctions, providing com- pensation for harm or educating the public about food safety? What, when, how and why did the judiciary, in particular, contribute to the government’s response to the crisis? To what extent is the traditional view about the weak- ness of courts compared to other institutions in China, notably the Party and the administration, borne out by the role of judicial institutions in the melamine crisis? To what extent were the roles of courts and other institu- tions shaped by the overall concern for preservation of social stability? This section considers these questions, starting with the role of the Party and then examining the roles of courts and finally government compensation for victims. National and provincial Party and governmental institutions were involved in sanctioning the leaders of Sanlu, local Party officials, and central and local government officials, including a central government minister. The Hebei Province Party Standing Committee met on 16 September. It accepted the deci- sion of the Shizjiazhuang City Party Committee removing Tian Wenhua from her positions as General Manager of Sanlu, Director of the Sanlu Board and
legislation met with mixed reactions on the mainland: see ‘Mixed views on milk powder rules’, Shenzhen Daily, Tuesday, 5 March 2013, p. 4. 117 ‘3 arrested for smuggling baby formula’, Shenzhen Daily, Wednesday, 27 February 2013, p. 1. 118 ‘Woman jailed for smuggling formula’, Shenzhen Daily, Thursday, 26 December 2013, p. 4.
Party Secretary of Sanlu.119 She was also dismissed from the cpc.120 According to Caijing,121 she was arrested on 17 September. On the same day the Secretary of Shijiazhuang Municipal Party Committee Wu Xianguo and the Mayor of Shijiazhuang City and Deputy Secretary of the City Party Committee, Ji Chuntang, were also forced to resign. Four key local Shijiazhuang officials were removed from their positions: the Vice-Mayor in charge of food and agriculture Zhang Fawang, the head of the animal husbandry and fishery bureau Sun Renhu, the director of the food and drug administration Zhang Hi and the head of the quality supervision bureau Li Zhiguo.122 These senior local offi- cials were dismissed by the Hebei cpc Committee Organisation Department, which had made the appointments through the nomenklatura system.123 The
119 See Xinhua, ‘Shijiazhuang Sanlu Group party secretary, chairman dismissed’, available at http://-money.163.com/08/0916/18/4M00FPE200252G50.html, last accessed 8 May 2014. Such Party sanctions are known as shuang kai and may include warning, severe warning, removal from Party posts, probation with the Party and expulsion from the Party. Removal from Party (leadership) posts may be imposed if the ‘malpractice is serious enough to cease…party duty but not serious enough for a period of probation within the party [or expulsion]’. Expulsion can be imposed in cases of intentional criminal law violation, a court-imposed deprivation of political rights, or negligent or involuntary crime sanc- tioned by a court-imposed prison sentence of more than three years. Tian Wenhua would have qualified for explusion under the last category, but I have not seen any indication that Tian Wenhua was expelled from the Party in addition to being removed from her Party post. On Party procedures, see Gao Shan, ‘Brief introduction of Shuang kai and pic- tures inside Shuang gui facililty’, in Larry Catá Backer, ‘Communist Party and State Discipline in China Part ii: Brief Introdution to Shuang Kai and Pix Inside Shuang gui Facility’, available at http://lcbackerblog.blogspot.fr/2011/09/communist-party-and-state -discipline-in.html, last accessed 08 May 2012. 120 The Constitution of the Communist Party of China states that ‘Party members who have seriously violated the Criminal Law shall be expelled from the Party’ (Article 38, paragraph 2) and that ‘[e]xpulsion is the ultimate Party disciplinary measure’ (Article 39, paragraph 3): Constitution of the Communist Party of China (Foreign Languages Press, Beijing, 2001), pp. 101 and 103, respectively. 121 http://www.caijing.com.cn/2008-09-17/110013484.html, accessed 20 April 2012. 122 English Edition Staff, ‘Timeline for China’s Tainted Milk Scandal’, 23 September 2008, available at http://www.eeo.com.cn/ens/feature/2008/09/23/114549.html, last accessed 1 April 2012. 123 Local agencies, such as food and agriculture, were managed by the local government, instead of being managed either through a ‘vertical’ system in which central government makes the appointments or through a ‘semi-vertical’ arrangement in which provincial government, not central government, appoints the leadership group but provincial gov- ernment does not make other personnel appointments. See Burns et al., ‘Dublin’, supra note 137, at 5–6. See also John P. Burns and Zhou Zhiren, ‘Performance Management in
the Government of the People’s Republic of China: Accountability and Control in the Implementation of Public Policy’, oecd Journal on Budgeting, 2, 2012, at 6, available at http://www.oecd.org/china/48169592.pdf, last accessed 13 September 2013. 124 Gong Jing and Liu Jingjing, ‘Spilling the Blame for China’s Milk Crisis’, Caijing Magazine, 10 October 2008, p. 1 available at http://english.caijing.com.cn/2008-10-10/110019183.html, last accessed 15 September 2013. 125 The melamine scandal was reported to have revealed the existence of lower standards for the domestic market and higher standards for export markets: see He Dan, ‘Experts seek end to food double standard’, China Daily, Thursday, 21 April 2011, p. 4.
126 China View, Window of China, ‘More Chinese officials punished in tainted milk scandal’, ChinaView, www.chinaview.cn, 20 February 2009, available at http://news.xinuanet.com/ english/20-09-03-20/content_11043298.htm, last accessed 19 April 2012. 127 Regulations of cpc on Discipline Regulations, Article 28, Section 3: ‘Any person or insti- tutes [sic] who know the matters of the case shall bear the duty of providing evidence. According to the procedural [sic] of the regulations, the investigation group has the power to adopt the following measures: (3) Requiring the relevant person answering questions and clarifying issues at designated duration and designated place’. This applies to Party members. Non-Party-members may be subject instead to Liang zhi, following the Law of the prc on Administrative Supervision, Article 20, Section 20. See Gao Shan, ‘The introduc- tion of Shuang gui’, in Larry Catá Backer, ‘Communist Part and State Discipline in China: Exploring Shuang gui 双规 and Shuang kai Part I’, available at http://lcbackerblog.blogspot .fr/2011/08/communist-party-and-state-discip0line-in.html, last accessed 8 May 2012. 128 See following sources: Flora Sapio, ‘Shuanggui and Extralegal Detention in China’, China Information, 22, 1, March 2008, 17–37, revised version in Flora Sapio, Sovereign Power and the Law in China (Brill Academic Publishers, Leiden, 2010); Larry Catá Backer, ‘Communist Part and State Discipline in China: Exploring Shuang gui 双规 and Shuang kai Part i’, avail- able at http://lcbackerblog.blogspot.fr/2011/08/communist-party-and-state-discip0line -in.html, last accessed 8 May 2012; Larry Catá Backer, ‘Communist Party and State Discipline in China Part ii: Brief Introduction to Shuang Kai and Pix Inside Shuang gui Facility’, available at http://lcbackerblog.blogspot.fr/2011/09/communist-party-and-state -discipline-in.html, last accessed 08 May 2012; ‘Official Fear: Inside a Shanggui Investigation Facility’, Dui Jui Human Rights Journal, Tuesday, 5 July 2011, including Chu Zhaoxian, ‘Where Corrupt Officials Fear Most: Exploring a Shuanggui Investigation Facility’, avail- able at http://www.duihuahrjournal.org/2011/07/official-fear-inside-shuanggui.html, last accessed 6 May 2012; Jerome A. Cohen, ‘Incommunicado Detention in China’, USAsialawNYU, Jerome A. Cohen’s Blog, 18 April 2012, available at http://www.usasia-law .org/?p=6801, last accessed 5 May 2012.
High-Profile Criminal Cases Ensuing events involved the courts along three different pathways: first, high- profile criminal prosecutions; second, criminal cases against middlemen; and, third, milk producers and civil suits by victims for compensation. The first pathway consisted of high-profile criminal sanctions taken against Ms Tian Wenhua, the chair of the Board of Sanlu, and other senior managers of Sanlu. On 17 September 2008, four leading Sanlu business people were arrested. Two of them, Tian Wenhua and Wang Yuliang, one of her vice-pres- idents (deputy general manager), were arrested and placed in criminal deten- tion. Another two, Hang Zhiqi, another vice-president (deputy general manager), and Wu Juseng, head of Sanlu’s milk division, were arrested and placed under residential surveillance. They were charged under Article 140 of the Criminal Law (cl) and at least Ms Tian was initially also charged under Article 144 cl.129 Article 140 cl provides that any producer or seller who pro- duces or sells fake or substandard products is liable to fine and imprison- ment. If the earnings from sales amount to more than 2 million rmb, the accused may be sentenced to life imprisonment and a fine up to two-thirds the amount of earnings from sales or confiscation of property. Article 144 cl provides that anyone who ‘mixes poisonous or harmful non-food raw materi- als into food produced or sold or knowingly sells food mixed’ with such mate- rials and causes death or ‘any other especially serious circumstance’ is to be punished according to Article 141 cl. In turn, Article 141 cl provides for imprisonment of not less than 10 years, life imprisonment or death penalty, and fine or forfeiture of property in the crime results in death or ‘any other especially serious circumstance’. At the trial, the public prosecutor dropped the Article 144 cl charge at trial, reportedly because it required a higher bur- den of proof.130 In addition to the Criminal Law, which also allows victims of crime to bring a civil action for compensation for personal injury or damage, the Product Quality Law (pql), the 2007 Provisions on the Administration of Food Recall, and the Law on Public Health Emergencies potentially applied to Ms Tian or to
129 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), CLI.1.17010(EN), Chinalawinfo, Articles 144. 130 Liu, ‘Profits’, supra note 135, at 387. Liu does not mention this expressly, but it would seem that the higher burden of proof meant proving either that Sanlu (or Ms Tian) actually mixed the product or that Ms Tian knew that Sanlu infant formula contained melamine.
131 For useful summaries of the relevant legislation, see ibid., at 388–396, and Yungsuk Karen Yoo, ‘Tainted Milk: What Kind of Justice for Victims’ Families in China?’, Hastings International and Comparative Law Review, 33, 2010, 555–575, at 557–562 (hereafter Yoo, ‘Tainted Milk’). 132 Steve Dickinson, ‘Foreign Managers Are Not Above the Law’, China Economic Review, col- umn republished in Dan Harris, ‘Sanlu’s Lessons for Foreign Managers in China…. Because Jail Is Probably Not Where You Want to Be’, China Law Blog, http://www.chinalawblog. com/2009/02/san-lus_lessons_for_foreign_man.html, last accessed 19 September 2013 (hereafter Dickinson, ‘Foreign Managers’). 133 The classic studies in English are E.P. Thompson, Whigs and Hunters: The Origin of the Black Act, (London: Allen Lane, 1975; with a new postscript, Harmondsworth: Penguin, 1977) and E.P. Thompson (ed), Albion’s Fatal Tree: Crime and Society in Eighteenth Century England, London: Allen Lane, 1975. 134 The following account, unless otherwise noted, is based on the judgment of the Higher Court of Hebei Province in People’s Procuratorate of Shijiazhuang Municipality v. Shijiazhuang Sanlu Group Co. Ltd. and related persons, appeal rejected on 29 March 2009. I am grateful to Dingmin Liu for this English translation.
135 Organic Law of the People’s Courts of the People’s Republic of China (olpc) (Adopted at the Second Session of the Fifth National People’s Congress on 1 July 1979 and 3rd revised as adopted at the 24th meeting of the Standing Committee of the 10th National People’s Congress of the prc on 31 October 2006) (promulgated by the Order No. 59 of the President of the prc and came into effect on 31 October 2006), CLI.1.81825(EN), Chinalawinfo, Article 24; and Civil Procedure Law of the People’s Republic of China, (Adopted at the 4th Session of the Seventh National People’s Congress on 9 April 1991; amended for the first time in accordance with the Decision on Amending the Civil Procedure Law of the prc as adopted at the 30th Session of the Standing Committee of the Tenth National People’s Congress on 28 October 2007; and amended for the second time in accordance with the Decision on Amending the Civil Procedure Law of the prc as adopted at the 28th Session of the Standing Committee of the Eleventh National People’s Congress on 31 August 2012) (Promulgated by the Order No. 59 of the President of the prc and came into effect on 31 August 2012), CLI.1.183386(EN), Chinalawinfo, Article 18. 136 ‘China milk exec faults lack of rules’, cnn.com/asia, available at http://edition.cnn .com/2009/-WORLD/asiapcf/01/01/china.milk/index.html , last accessed 21 September 2013.
Ms Tian about 5pm (17:00) the same day. She called an enlarged meeting of Sanlu Group leadership. At the meeting Mr Wang explained that melamine had been detected in Sanlu milk powder. The Group leadership decided to lock the products in storage and stop deliveries. Mr Wang was to be responsible for measuring the melamine content in the stored products and to keep samples of raw milk and related materials. Mr Hang was to strengthen management of dairy production, especially in the purchase of raw milk and to recall already marketed Sanlu milk powder in exchange for good products. However, Sanlu did not stop its milk powder production. After further testing, Ms Tian and Mr Wang convened another Group leader- ship meeting. The meeting took two decisions. First, stored products contain- ing less than 10 mg/kg of melamine would continue to be sold, while products with a higher melamine content would remain in storage. Mr Wang was to be in charge of these arrangements. Second, Sanlu would produce formula with up to 20 mg/kg melamine content to exchange for products with higher melamine content and gradually withdraw all products containing melamine from the market. Mr Wang then announced that any product with less than 10 mg/kg melamine content could receive clearance from the company’s mea- suring department to be allowed for sale. Between 2 August and 12 September 2008, Sanlu manufactured 72 batches of infant milk power containing melamine, with a total weight of 904.2432 tonnes. It sold 69 batches, a total weight of 813.737 tonnes, for which it received rmb 47,560,800. On 3 August Mr Hang, with Ms Tian’s permission, informed Mr Wu that Sanlu milk powder contained a non-protein nitrogen compound and asked him to strengthen control of milk sources. However, he also ‘instructed that any raw milk declined by the Third Processing Plant for the extra non-protein nitrogen compound should be transferred to the other processing plants in order to ensure milk source supply’. I speculate that this milk cost less and was destined for the lower, mainly rural end of the market. The raw milk depart- ment of Sanlu met the next day. Following Mr Hang’s instructions, Mr Wu asked that such rejected milk be sent to Xingtang Delivering Center and Xinlemin Town Delivering Centre, a rural district administered by Shijiazhuang municipality and a satellite city of Shijiazhanng, respectively,137 which would then deliver it to other Group firms for production. 29,806 tonnes of raw milk rejected by the Third Processing Plant were transferred to the other two cen- tres, which subsequently delivered a total of 180.89 tonnes of raw milk to Sanlu group firms such as Baoding Sanlu, Second Processing Plant and Sanlu Leshi
137 Wikipedia, ‘Shijiazhuang: administrative divisions’, http://en.wikipedia.org/wiki/ Shijiazhuang, last accessed 27 January 2015.
Dairy Company. This milk was mixed with other raw milk to produce different kinds of yoghurt, all containing melamine. Tests showed that between 24 mg/ kg and 199 mg/kg of melamine was present in 12 batches of liquid milk making a total of 269.44062 tonnes of milk. All was sold for a total price of 1,814,022.98 rmb. The hearing of the case, despite its factual and legal complexity, lasted only one day, reportedly under the guidance of the Central Political and Legal Commission (cplc).138 The Shijiazhuang Intermediate People’s Court formed a collegiate bench. On 31 December 2008, it held that the acts of the defen- dants constituted two crimes: manufacturing and selling poisonous food, and manufacturing and selling fake and shoddy goods. However, in its view the evidence was not sufficient to demonstrate that the products which the defen- dants continued to produce and sell had dangerous consequences after the defendants learned that the products contained melamine on 1 August 2008. The Court concluded that the defendants should be convicted of the lesser crime. Ms Tian played the organizing and directing role and had direct princi- pal responsibility for the crime. Mr Wu played only a second role as an accom- plice, since he on Mr Hang’s orders allocated raw milk containing melamine to Sanlu Group firms which produce liquid milk. On 21 January 2009 the Court imposed a fine on Sanlu Group of rmb 49,374,822. It sentenced Ms Tian to life imprisonment and a fine of rmb 24,687,411, Mr Wang to 15 years in prison and a fine of rmb 23,780,400, Mr Hang Zhiqi to 8 years in prison and a fine of rmb 907,011 and Mr Wu to 5 years in prison and a fine of rmb 604,674.139 All defendants appealed to the Hebei Province Higher People’s Court. In its judgment the Higher People’s Court reiterated, more or less verbatim, the main points in the Intermediate People’s Court judgment. On 15 March 2009 it rejected the appeal and confirmed the original judgment. In the view of one commentator, the defendants were held responsible for a crime ‘committed by
138 McGregor, The Party, supra Chapter 2 note 77, pp. 190–191, who uses the term ccp Politics and Law Committee. On the functions of the cplc, see Zheng, Organizational Emperor, supra note 223, p. 113; Carol Lee Hamrin, ‘The Party Leadership System’, in Lieberthal and Lampton, Bureaucracy, supra Chapter 2 note 145, at 112–113, 119, 121–122. The cplc heads the Political and Legal Affairs xitong, on which see Lieberthal, Governing, supra Chapter 2 note 207, pp. 224–227. 139 The case did not seem to involve bribery. The sentences may be compared with the death sentence given to the former head of the China Food and Drug Administration, Zheng Xiaoyu, for taking bribes of reportedly us$850,000 for issuing marketing licences for sub- standard pharmaceutical products. See ‘China food safety head executed’, bbc News, Asia- Pacific, available at http://news.bbc.co.uk-/2/hi/6286698.stm, last accessed 14 June 2012. For further details, see Liu, ‘Obstacles’, supra Chapter 2, note 122, at 294–298.
140 Dickinson, ‘Foreign Managers’, supra note 132. 141 See also Y.R., ‘Pékin tente de mettre un terme au scandale du lait à la melamine’, Les Echos, vendredi 23 et samedi 24 janvier 2009, p. 19. This view was expressed strongly by Tian Wenhua’s lawyer, Mr Liang Zikan: see the interview with Mr Liang in ‘Dairy Scandal Scapegoat Tian Wenhua’s Lawyer Speaks Out’, eChinacities Newletter, 3 March 2009, available at http://www.echinacities.-com/china-media/Dairy-Scandal-Scapegoat-Tian -Wenhuas-Lawyer-Speaks-Out, last accessed 15 August 2014. 142 Whether Fonterra was likely to be prosecuted was however the subject of some uncer- tainty and discussion in New Zealand, including by Trade Minister Phil Goff. See Paula Oliver, ‘Grim future for milk culprits’, The New Zealand Herald, Friday, 19 September 2008, available at http://www.nz-herald.co.nz/fonterras-chinese-milk-scandal/news/article .cfm?c_id=1502761&objectid=10532999, last accessed 3 May 2014.
143 Lincoln Tan, ‘Fonterra to tell all in Sanlu appeal’, The New Zealand Herald, Thursday, 3 February 2009, available at http://www.nzherald.co.nz/fonterras-chinese-milk-scandal/ news/article.cfm?c_id=−1502761&objectid=10554871, last accessed 4 May 2014. 144 ‘Parents take milk claims to Hong Kong’, The New Zealand Herald, Thursday, 6 May 2010, available at http://www.nzherald.co.nz/fonterras-chinese-milk-scandal/news/article.cfm?c _id=150276-1&objectid=10642994, last accessed 4 May 2014. See also ‘Fonterra doubts basis for Sanlu suit in Hong Kong’, The National Business Review, Wednesday, 5 May 2010, available at http://www.nbr.co-.nz/article/fonterra-doubts-basis-sanlu-suit-hong-kong -122498, last accessed 4 May 2014; Wang Duan, ‘Tainted milk victims take fight to Hong Kong’, Caixin Online, 5 June 2010, available at http://-english.caixin.com/2010-05 -06/100141643.html, last accessed 4 May 2014. The Tribunal adjudicator concluded that Fonterra as a shareholder did not have controlling power in Sanlu and that such compen- sation claims should be pursued in mainland Chinese courts: see ‘Court rejects melamine claim against Fonterra’, Business Day [New Zealand], 27 May 2010, available at http://www .stuff.co.nz/-business/industries/agribusiness/3747817/Court-rejects-melamine-claim -against-Fonterra, last accessed 4 May 2014: Austin Chiu, ‘Tainted milk parents lose claim against hk shareholder of Sanlu’, South China Morning Post, Friday, 28 May 2010, available at http://www.scmp.com/article/715497/tainted-milk-parents-lose-claim-against-hk -shareholder-sanlu, last accessed 4 May 2014.
145 Peng Jian, ‘An Explanation of the Lawsuit against Fonterra in Hong Kong’, posted in China Rights Forum, 26 January 2011, available at www.hrchina.org/en/content/4958. 146 ‘Li Changjiang’, http://en.wikipedia.org/wiki/Li_Changjiang, last accessed 7 May 2014. 147 For example, in December 2009 Li Changjiang, the former Minister for aqsiq, was appointed ‘vice director of the Office of Sweeping Pornography and Striking Illegal Publications (transliteration of 全國掃黃打非工作小組, which lacks an official transla- tion to English)’: http://en.wiki-pedia.org/wiki/Li_Changjiang, accessed 7 May 2014. See also http://www.shdf.gov.cn/cms/html/308/-index.html, accessed 22 June 2012. Former Shijiazhuang Mayor Ji Chuntang was dismissed from office and also from positions as Deputy Secretary of the Shijiazhuang Municipal Party Committee and Deputy Party Secretary of Shijiazhuang (see his entry on http://www.zoominfo.com/p/ Ji-Chuntang/1307736742, last accessed 7 May 2014). Later he was later appointed Deputy Mayor of the Hebei Province Industry and Information Technology Department. Former Deputy Mayor Zhang Fawang became Deputy Chairman of the Shijiazhuang Chinese People’s Consultative Conference. Former Deputy Mayor Zhao Xinchao returned as Deputy Mayor of the city: see He Huifeng, ‘Disgraced diary scandal officials given top jobs’, South China Morning Post, 15 August 2012, available at http://www.scmp.com/ article/990683/disgraced-dairy-scandal-officials-given-top-jobs, last accessed 21 September 2013. See also Staff reporter, ‘Officials punished in Chinese milk scandal given new jobs’, http://www.wantchinatimes.com/news-subclass-cnt.aspx?id=20230125000007 &cid=−1103, last accessed 1 April 2012. Wu Xianguo, formerly Secretary of Shijiazhuang City Party Committee, was an alternate member of the 17th cpc Central Committee from 2007–2012: see http://www.chinavitae.com/biography/Wu_Xianguo/career, last accessed 20 September 2013. In this respect, China is not of course unique: for example, French or Italian politics provide numerous similar examples.
Criminal Prosecution of Middlemen and Milk Producers A second judicial pathway concerned criminal trials involving numerous mid- dlemen and milk producers, including dairy farmers, farm directors, producers of melamine-laced ‘protein powder’, milk dealers, operators of milk collection stations, operators of dairy plants and milk producers.148 On 10 October 2008, Caijing Magazine reported that ‘Police uncovered a melamine sales network in Hebei…and arrested 12 milk station staff members along with six [sic] illegal sellers of the chemical. A suspect surnamed Su told police he sold 200 bags of melamine powder to milk stations between February 2007 and [July 2008] for 218 yuan per bag’.149 Trials started as early as 26 December 2008 in People’s Courts in nearby counties over which Shijiazhuang City had direct jurisdiction.150 A number of defendants were sentenced by the Shijiazhuang Intermediate People’s Court on 22 January 2009. Among the middlemen, Zhang Yujun, in what was report- edly the largest source of melamine in the country,151 had produced more than 750 tonnes of ‘protein powder’ containing mainly melamine and malt dextrin, and he also sold more than 600 tonnes to dairy companies. He was sentenced to death for endangering public safety. Gao Junjie was given a death sentence suspended for two years pending review. Zhang Yanzhang, a buyer and seller of ‘protein powder’, and Xue Jianchong were sentenced to life imprisonment, and Xiao Yu was sentenced to five years in prison. The workshop of Zhang Yujun and Zhang Yanzhang was located outside Jinan, the capital of Shandong
148 It is difficult to compile a complete account, and such an account is not essential for the present purposes. For a list of 22 people on trial, including Tian Wenhua and her senior management colleagues, as well as alleged facts, criminal charges and verdicts, see Zhu Tao, ‘Death Sentence in Milk Trial’, Caijing Magazine, 22 January 2009, available at http:// english.caijing.com.cn/2009-01-22/110050778.html, last accessed 21 September 2013. So far as one can judge, a relatively complete account of the entire scandal can be found in Wikipedia, ‘2008 Chinese milk scandal’, available at http://en.wikipedia.org/wiki/2008 _Chinese_milk_scandal, last accessed 21 September 2013. 149 Gong Jing and Liu Jingjing, ‘Spilling the Blame for China’s Milk Crisis’, Caijing Magazine, 10 October 2008, p. 1 available at http://english.caijing.com.cn/2008-10-10/110019183.html, last accessed 15 September 2013. 150 For example, the cases of Zhang Heshe, Zhang Taizhen, Yang Jingmin and Gu Guoping, who were charged with production and sale of toxic food, were heard by the People’s Court in Wuji County, Zhao County and Xingtang County, respectively. See http:// en.wikipedia.org/wiki/Shijiazhuang; and China daily, ‘Six on trial over Sanlu tainted milk scandal’, 27 December 2008, available at http://www.china-daily.com.cn/bizchina/ 2008-12/27/content_7346428.htm, last accessed 13 February 2015. 151 Zhu Tao, ‘Death Sentence in Milk Trial’, Caijing Magazine, 22 January 2009, available at http://-english.caijing.com.cn/2009-01-22/110050778.html, last accessed 21 September 2013.
Province. Zhang Yujun and Zhang Yanzhang appealed their sentences, but the appeals were denied. Zhang Yujun and Geng Jinping were executed by shoot- ing on 24 November 2009.152 Among the milk producers, Geng Jinping and Geng Jinzhu were brothers who lived in rural Zhengding county north of Shijiazhuang. They were reported to have had a contract with Sanlu since 2004 and added melamine to their milk after the milk was earlier rejected by Sanlu as being too low in quality. About adding melamine, Geng Jinping was quoted as saying ‘I never asked and never thought about it. I only know it’s bad for health’.153 He was convicted of manufac- turing and selling toxic food for selling more than 900 tonnes of milk containing 434kg of ‘protein powder’. He was sentenced to death and deprived of political rights and his assets were confiscated. Geng Jinzhu was sentenced to eight years in prison and a fine equivalent to us $73,000. They appealed the sentences, but the appeal was denied by the Hebei High People’s Court on 21 March 2009.154
Civil Suits by Victims for Compensation These criminal cases were not however the only way in which courts were involved in the melamine scandal aftermath. Along a third pathway, parents of victims tried, either individually or jointly, to bring actions against Sanlu for compensation, and for this reason lawyers, acting on their behalf either indi- vidually or in groups, sought recourse to the courts. On 25 December 2008, a group of eight volunteer lawyers reportedly published a legal statement to contest Sanlu’s bankruptcy on the grounds that victims would then not be properly compensated.155 Individual lawyers reportedly formed a volunteer
152 Meaghan Good, ‘2009: Zhang Yujun and Geng Jinping, for trainted milk’, guest post on blog ExecutedToday.com, 24 November 2010, available at http://www.executedtoday .com/2010/11/24/20-09-zhang-yujun-and-geng-jinping-for-tained-milk/, last accessed 21 September 2013. 153 Geoff Cumming, ‘Contaminating by toxic trade’, The New Zealand Herald, Saturday, 20 September 2008, available at http://www.nzherald.co.nz/fonterras-chinese-milk-scandal/ news/article.cfm?c_id=1-502761&objectid=10533158, last accessed 3 May 2014. 154 This paragraph is based on John Vause, ‘Death sentences in China tainted milk case’, cnn. com/asia, available at http://edition.cnn.com/2009/WORLD/asiapcf/01/22/china.tainted .milk/, last accessed 21 September 2013, and on Window of China, ‘Appeal against death sentence and jail term rejected in Sanlu milk scandal’, www.chinaview.com, 26 March 2008, available at http://news.-xinhuanet.com/english/2009-03/26/content_110774740 .htm, last accessed 21 September 2013. 155 ‘Sanlu in Bankruptcy Proceeding: Dairy company Sanlu goes bankrupt, spreading fears among creditors as well as victims of tainted milk’, available at http://english.caijing.com .cn/2008-12-29/110043225.html, last accessed 31 March 2012.
156 Alex Ferguson, ‘Governmental Authority Versus Judicial Independence: The Abuse of Executive Power in China’s Contaminated Powdered Milk Crisis’, at 11–15, available at http://www.marler-blog.com/uploads/file/milkcrisis.pdf, last accessed 23 September 2013. 157 Fu and Nicoll, ‘Corporate Governance’, supra Chapter 2 note 132, at 113 and sources cited in note 40 there. See also John Balzano, ‘China’s Food Safety Law: Administrative Innovation and Institutional Design in Comparative Perspective’, Asian-Pacific Law & Policy Journal 13, 2, 2011–2012, 23–80 at 47–49 (hereafter Balzano, ‘Administration Innovation’). 158 Fu and Nicoll, ‘Corporate Governance’, supra note 132, at 117. 159 For further analysis see ibid., at 113–115; Liu, ‘Profits’, supra Chapter 2 note 135, at 410–414. 160 Zhuang Pinghui, ‘First lawsuit in melamine milk scandal accepted’, South China Morning Post, Thursday 18 July 2012 [sic], available at http://www.scmp.com/article/674609/first -lawsuit-melamine-milk-scandal-accepted, last accessed 21 September 2013.
161 Deng Shasha, ‘Parent of China melamine victim receives compensation’, English.news.cn, 1 March 2010, available at http://news.xinhuanet.com/english2010/china/2010-03/01/c _13192999.htm, last accessed 21 September 2013. 162 Civil Procedure Law of the People’s Republic of China, (Adopted at the 4th Session of the Seventh National People’s Congress on 9 April 1991; amended for the first time in accor- dance with the Decision on Amending the Civil Procedure Law of the prc as adopted at the 30th Session of the Standing Committee of the Tenth National People’s Congress on 28 October 2007; and amended for the second time in accordance with the Decision on Amending the Civil Procedure Law of the prc as adopted at the 28th Session of the Standing Committee of the Eleventh National People’s Congress on 31 August 2012) (Promulgated by the Order No. 59 of the President of the prc and came into effect on 31 August 2012), CLI.1.183386(EN), Chinalawinfo, Articles 54 and 55. For a brief but dated overview, see Traci Daffer, ‘“I am fighting for the right to eat, and I will keep fighting. The truth is on our side”: Class Action Litigation as a Means of Enacting Social Change in China’, University of Missouri at Kansas City Law Review, 75, 2006–2007, 227–243. 163 Zhu Tao, ‘Death Sentence in Milk Trial’, Caijing Magazine, 22 January 2009, available at http://english.caijing.com.cn/2009-01-22/110050778.html, last accessed 21 September 2013. 164 Erin Marie Daly, ‘Chinese Families Sue Dairies Over Melamine: Report’, Law360, a LexisNexis Company, 20 January 2009, available at http://www.law360.com/articles/ 83776/chinese-families-sue-dairies-over-melamine-report, last accessed 21 September 2013. On the offer, see Liz McKenzie, ‘Chinese Dairies to Pay $160M to Tainted-Milk Victims’, Law360, a LexisNexis Company, 30 December 2008, available at http://www .law360.com/articles/81335/chinese-dairies-to-pay-160m-to-tainted-milk-victims?article_ related_content=1, last accessed 4 March 2014. 165 Yoo, ‘Tainted Milk’, supra note 131, at 570.
Administrative Compensation The government established a compensation scheme for melamine victims. The scheme was funded by 22 dairy companies involved in the scandal. A total sum estimated at between 900 million yuan (us $131 million) and 1.1 billion yuan (us $160 million) was allocated to provide compensation to the family of each victim: 200,000 yuan (us $29,000) for children who died; 2000 yuan (us $292) for children who suffered kidney stones: or 30,000 yuan (us $4000) for children who suffered greater illness.167 Note that compensation is reported as being per family, not per victim, though the two would usually if not always coincide due to China’s one-child policy. More than 90% of families accepted the compensation.168 Fonterra, with a 43% stake in Sanlu, contributed indirectly
166 Ruyin Hu (Director, Research Centre, Shanghai Stock Exchange), ‘Class Action Practice in China’ PowerPoint presentation, slide 9, available at http://www.oecd.org/datao- ecd/48/59/2484790.ppt, last accessed 21 September 2013. Professor Wang Fuhua at Shanghai Jiao Tong University KoGuan Law School and Dr Li Jing, then a PhD candidate at the University of Hong Kong, both proposed that class actions (representative litiga- tion) should be permitted. See 2. 王福华,《打开群体诉讼之门——由“三鹿奶粉”事 件看群体诉讼优越性的衡量原则》 Wang Fuhua, Open the Gate of Class Action 1. 李静,《我国食品安全监管的制度 困境——以三鹿奶粉事件为例》, available at http://www.cnki.net/KCMS/detail/ detail.aspx?QueryID=10&CurR-ec=1&recid=&filename=ZGFX200905011&dbname=CJFD 0910&dbcode=CJFQ&pr=&urlid=&yx=&uid=WEEvREcwSlJHSldRa1FiNllNcnZLaWhWW VRKL0MzbllYU0hacTRuV211cC9LdHZKaVFwbmJxczZ5SXNnb2Z3PQ ==&v=MjExMTlPUHlyTmRyRzRIdGpNcW85RVpZUjhlWDFMdXhZUzdEaDFUM3FUcld NMUZyQ1VSTDZmWXVabkZ5dm5WN3Y=, last accessed 8 May 2014. Li Jing, Institutional dilemma in Chinese Food Safety Regulation: the Case of Sanlu Milk Powder Incident, available at http://www.cnki.net/KCMS/detail/detail. aspx?QueryID=6&CurRec=4&recid=&-filename=ZXGL200910011&dbname=CJFD0910 &dbcode=CJFQ&pr=&urlid=&yx=&uid=WEEvREcwSlJHSldRa1FiNllNcnZLaWhWWVRK L0MzbllYU0hacTRuV211cC9LdHZKaVFwbmJxczZ5SXNnb2Z3PQ ==&v=MDAyMzVuVXJ6TFB6WE1Zckc0SHRqTnI0OUVaWVI4ZVgxTHV4WVM3RGgxVD NxVHJXTTFGckNVUkw2Zll1Wm5GeXY=, last accessed 8 May 2014. 167 Fu and Nicoll, ‘Corporate Governance’, supra Chapter 2 note 131 at 118, which states the total figure as being 900 million yuan; Liu, ‘Profits’, supra Chapter 2 note 135 at 408, which states the total figure as being 1.1 billion yuan. The two sources agree concerning the amount each family would receive. 168 Fu and Nicoll, ‘Corporate Governance’,supra Chapter 2 note 131 at 118.
169 Alice Neville, ‘Parents sue Sanlu for milk scandal’, The New Zealand Herald, Sunda, 28 June 2009, available at http://www.nzherald.co.nz/fonterras-chinese-milk-scandal/news/ article.cfm?c_id=150276-1&objectid=10581102, last accessed 4 May 2014. 170 ‘Fonterra donates to Chinese charity after melamine scandal’, The New Zealand Herald, Friday, 10 October 2008, available at http://www.nzherald.co.nz/business/news/article .cfm?c_id=3&objectid=1-0536840, last accessed 4 May 2014. 171 Food Quality and Safety Authority, according to http://en.wikipedia.org/wiki/ZXhao _Lianhai, last accessed 23 September 2013. 172 According to Balzano, ‘Administrative Innovation’, supra note 157, at 56–57, who quotes Josephine Ma, ‘Dream of Court Turns Sour for Milk Activist’, South China Morning Post, 1 April 2010, p. 2. 173 结石宝宝之家, jieshibaobao.com. 174 This paragraph draws on ‘The true cost of persecuting whistleblowers: Chinese factories still making poisoned food’, Daily Kos, Sunday 28 August 2011, available at http://www .dailykos.com/-story/2011/08/28/1011455/-The-true-cost-of-persecuting-whistleblowers -Chinese-factories-still-makin-g-poisoned-food, last accessed 23 September 2013; and the Wikipedia entry on ‘Zhao Lianhai’, http://-en.wikipedia.org/wiki/ZXhao_Lianhai, last accessed 28 March 2014. See also Anthony Kuhn, ‘Parents Question Chinese Milk Compensation Plan’, nrp 5 January 2009, available at http://www.npr.org-/templates/ story/story.php?storyId=99002599, last accessed 10 September 2013. See also The
The 22 dairy companies also established a fund of rmb 200 million to cover future medical bills due to tainted milk. The fund was to be managed by the China Dairy Association. In addition, the fund provided for access of victims’ families to insurance coverage for related medical bills till victims reached 18 years of age. It was reported that a sum of rmb 902 million was contributed by Sanlu before bankruptcy and had been raised “with the assistance” of the Shijiazhuang government’.175
Managed Justice The Party and central government, not the courts, were clearly the central actors in dealing with the melamine scandal. Central government policy was implemented partly, however, by other institutions, such as local government, a national trade association and individual companies. In the melamine crisis, the result for victims was a form of justice managed by Party and governmental administration.176 Whether access to courts would have made any difference remains to be seen. The leitmotif of the third world of melamine remained the concern for the preservation of social stability.177 Various social actors used Party and state institutions, legislation and administrative measures as resources or instruments in different ways, and for
Associated Press, ‘China: Parents in Milk Case Released’, New York Times, 3 January 2009, at A6, cited in Liu, ‘Profits’, supra Chapter 2 note 135, at 408. On Zhao Lianhai and another whistleblower, Tang Lin, see Gerald Chan, Pak K. Lee and Lai-Hai Chan, China Engages Global Governance: A New World Order in the Making? (Routledge, London, 2012), p. 133 (hereafter Chan et al., Global Governance). 175 Fu and Nicoll, ‘Corporate Governance’.supra Chapter 2 note 131, at 118. 176 One commentator summarized the resolution of the scandal as following ‘a fairly typical Chinese pattern’: ‘San Lu was forced into a governmental-supervised bankruptcy. An industry wide compensation fund was established and managed by the government. Individuals considered responsible were subject to criminal sanctions, pleading guilty in non-public trials featuring rehearsed written confessions. Civil tort lawsuits against San Lu were rejected on the ground that the public criminal and bankruptcy proceedings pre- empted the private litigation process’; Dickinson, ‘Foreign Managers’, supra note 132. . For a critique, see Yoo, ‘Tainted Milk’, supra note 131, at 574, who argues that Dickinson’s view ignores the perspectives and rights of individuals and the importance of liability as a deterrent to companies which otherwise may produce unsafe food. On company liability as a deterrent, see Dan Harris, ‘Melamine in China Baby Milk Powder – Whoops Sorry’, China Law Blog, published by Harris & Moure, plc, available at www.chinalawblog .com/2008/09/melamine_in_chjina_baby_milk_po.html, last accessed 3 April 2014. 177 For other recent studies of the relationship between law and the concern for stability, see Trevaskes et al.,Politics, supra Chapter 2 note 207.
178 See further Neil J. Diamant, Stanley B. Lubman and Kevin J. O’Brian (eds), Engaging the Law in China: State, Society, and Possibilities for Justice (Stanford University Press, Stanford, ca, 200). 179 On thick and thin conceptions of the rule of law, see Randall Peerenboom, China’s Long March toward Rule of Law (Cambridge University Press, Cambridge, 2002). 180 Civil Procedure Law of the People’s Republic of China, (Adopted at the 4th Session of the Seventh National People’s Congress on 9 April 1991; amended for the first time in accor- dance with the Decision on Amending the Civil Procedure Law of the prc as adopted at the 30th Session of the Standing Committee of the Tenth National People’s Congress on 28 October 2007; and amended for the second time in accordance with the Decision on Amending the Civil Procedure Law of the prc as adopted at the 28th Session of the Standing Committee of the Eleventh National People’s Congress on 31 August 2012) (Promulgated by the Order No. 59 of the President of the prc and came into effect on 31 August 2012), CLI.1.183386(EN), Chinalawinfo, Article 123. See also Andrea Cheuk, ‘Comment: The Li’an (“Docketing”) Process: Barriers to Initiating Lawsuites in China and Possible Reforms’, ucla Pacific Basin Law Journal, 72, 2008–2009, 72–106, at73. 181 Andrea Cheuk, ‘Comment: The Li’an (“Docketing”) Process: Barriers to Initiating Lawsuites in China and Possible Reforms’, ucla Pacific Basin Law Journal, 72, 2008–2009, 72–106, at 80–81. The quotation is from p. 81. 182 See ibid., , at 97–100.
183 The literal translations of the Chinese terms shenpan yuan and faguan, respectively, often mistranslated as ‘judge’, as given by Jerome A. Cohen, ‘Struggling for Justice: China’s Courts and the Challenge of Reform’, World Politics Review, 14 January 2014, available at http://www.worldpoliticsreview.com/articles/13495/struggling-for-justice-chinas-courts -and-the-challenge-of-reform, last accessed 4 March 2014. 184 Margaret Y.K. Woo, ‘Bounded Legality: China’s Developmental State and Civil Dispute Resolution’, Maryland Law Journal, 27, 2012, 235–259, at 253 (hereafter Woo, ‘Bounded Legality’). This article draws heavily from Margaret Y.K. Woo and Cai Yanmin, ‘China’s Developmental State and the Challenge of Formal Process’, Supreme Court Law Review, 49, 2010, 361–376, abstract available on ssrn at http://ssrn.-com/abstract=2034598, last accessed 21 September 2013. See also Margaret Woo, ‘Adjudication Supervision and Judicial Independence in the p.r.c.’, American Journal of Comparative Law, 39, 95, 1991, 95–119. 185 Woo, ‘Bounded Legality’, supra note 184 at 253. The original source of the quotation is Shao-Chuan Leng and Hungdah Chiu, Criminal Justice in Post Mao China: Analysis and Documents (State University of New York Press, Buffalo, 1985), 171, 186 Benjamin L. Liebman, ‘China’s Courts: Restricted Reform’, Columbia Journal of Asian Law, 21, 1, Fall 2007, 2–44 at 10.
‘one of a number of state bureaucracies with the power to resolve disputes, and lack significant oversight powers over other state actors’, they understandably may conclude that they should refuse or not resolve the case and leave deci- sions to ‘other party-state departments’.187 The criminal trials of Tian Wenhua and others tend to confirm these observations. Consequently, contrary to some expectations,188 the Sanlu case did not rep- resent a turning point in the long-term transformation of the Chinese legal system. Instead, it illustrated the limits of the judicial process in dealing with social crisis, in particular regarding food safety. Justifying its policies on the grounds of the protection of social stability, the government actively discour- aged or simply did not permit individual or group litigation for damages.189
Toward a National Food Safety Law
Background The final element in the set of policies to which Party and government gave priority was to enact a national food safety law. China has long had scattered laws and regulations governing food and agricultural products.190 After the founding of the People’s Republic of China on 1 October 1949, the government
187 Ibid., at 3–4, 28, respectively. Liebman (at 37–41) identifies three factors to explain why courts have been allowed, and even encouraged, to become more autonomous: they serve as a safety-valve for complaints and help maintain social stability; they are part of increased institutional competition in the political system; and development from the bottom-up, rather than from the top-down, has led to increased judicial power. He (at 40) points out, however, that ‘courts are not viewed as rival sources of power. Party officials are not worried that courts may become significant checks on official action’. 188 For the argument that the Sanlu case could be such a landmark case, see Yoo, ‘Tainted Milk’, supra note 131, at 557, 571–572. 189 On 8 October 2008, the New York Times reported that, till then, lawyers had been subject to certain ‘psychological pressure’ but there was as yet no ‘overt ban’ on taking such cases: Edward Wong, ‘Milk Scandal Pushes China to Set Limits on Melamine’, available at http:// www.nytimes.com/2008/10/09/-world/asia/09milk.html?_r=2&sq=melamine%20china& st=cse&scp=8&pagewanted=all&, last acessed 28 March 2014. Other sources report that lawyers were told not to pursue melamine cases and threatened with unspecified retalia- tion if they did so: see ‘2008 Chinese Milk Scandal’ available at http://en.wikipedia.org/ wiki/2008_Chinese_milk_scandal, last accessed 28 March 2014. 190 See Bian Yongmin,‘Current Chinese Law on Food Safety: An Overview’, in Mahiou and Snyder, Food Safety, 167–186; Huang, Health, supra Chapter 2 note 260, 118–126; Liu, ‘Obstacles’, supra Chapter 2 note 122, at 281–283. On food security in terms of a sufficient supply and distribution of food, as distinguished from food safety, see Jenifer Huang
McBeath and Jerry McBeath, Environmental Change and Food Security in China (Springer, Dordrecht, 2010) (hereafter McBeath and McBeath, Environment). 191 Report of the Ministry of Health on the National Hygiene Executive Conference and the Second National Hygiene Conference, passed at the 167th Session Meeting of Government Administration Council of the Central People’s Government. The following historical account is based mainly on research by Lu Yi presented in the seminar on Food Safety Law and Policy that we taught jointly during the 2013–2014 academic year at Peking University School of Transnational Law, Shenzhen Graduate School, China. I am grateful to Lu Yi for permission to use this material here. For a slightly different list, see Jiehong Zhou and Shaosheng Jin, Food Safety Mangement in China: A Perspective from Food Quality Control System (World Scientific, Singapore, and Zhejiang University Press, Hangzhou, 2013), p. 8, Table 1.1 (hereafter Zhou and Jin, Management). See also Linhai Wu and Dian Zhu, Food Safety in China: A Comprehensive Review (crc Press, Taylor & Francis Group, London, 2014), pp. 197–204. 192 食品卫生管理试行条例, and can be found here http://news.xinhuanet.com/ ziliao/2005-02/02/content_2538913.htm. This Regulation was implemented by the State Council in 1965. 193 Regulation on Food Hygiene Administration, promulgated by State Council on August 27, 1979. 194 Food Hygiene Law of the People’s Republic of China, promulgated by Standing Committee of the National People’s Congress on November 19, 1982, effect on July 1, 1983. 195 Evaluation Procedure for Food Safety Toxicology, promulgated by Minstry of Health on December 1, 1985, available at http://www.law-lib.com/law/law_view.asp?id=47028. 196 See its website at http://www.greenfood.org.cn/sites/GREENFOOD/List_3675_3811.html, last accessed 26 February 2015; see also ‘China Green Food Development Center’ available at http://en.wikipedia.org/wiki/China_Green_Food_Development_Center, last accessed 7 May 2014.
1994. Following an international conference on hygiene policy planning on 2 October 1995, China’s Food Hygiene Law (as amended) was adopted on 30 October 1995.197 It was accompanied five months later, in March 1996, by a Notice on Further Reforming and Improving the Public Hygiene Surveillance and Legal Enforcement System.198 Until then, however, food safety regulation was not very effective, because of the governmental orientation mainly toward economic development, lax regulation of the food industry and administrative fragmentation and bureaucratic politics.199
The 1995 Food Hygiene Law The 1995 Food Hygiene Law200 was the most comprehensive legislation in the field prior to the melamine crisis.201 Its purpose was to ‘ensur[e] food hygiene and prevent[…] food contamination and harmful substances from causing injury to human health in order to safeguard the health of the people and improve their physical fitness’.202 This mandate would certainly have covered
197 Food Hygiene Law of the People’s Republic of China [Expired], Adopted at the 16th Meeting of the Standing Committee of the Eighth National People’s Congress on October 30, 1995, promulgated by Order No. 59 of the President of the People’s Republic of China on October 30, 1995, and effective as of the date of promulgation, available at http:// en.pkulaw.cn/display.aspx?id=116&lib=law&SearchKeyword=&SearchCKeyword=%ca% b3%c6%b7%ce%c0%c9%fa%b7%a8, last accessed 26 February 2015. 198 Notice on Further Reforming and Improving the Public Hygiene Surveillance and Legal Enforcement System, promulgated by Ministry of Health in March 1996. 199 Huang, Health, supra Chapter 2 note 260, 119–122. 200 Food Hygiene Law of the People’s Republic of China (adopted at the 16th Meeting of the Standing Committee of the Eighth National People’s Congress on October 30, 1995 and promulgated by Order No. 59 of the President of the People’s Republic of China on October 30, 1995, in force as of 30 October 1995). 201 For example, the Law of the People’s Republic of China on Agricultural Product Quality Safety (amended and adopted at the 21st Meeting of the Standing Committee of the Tenth National People’s Congress of the People’s Republic of China on April 29, 2004, in effect as of November 1, 2006) applied only to ‘the primary products from agriculture, i.e. the plants, animals, microorganisms and their products obtained in the course of agricultural activities’ (Article 1). See also Administrative Measures for the Packaging and Marking of Agricultural Products, (deliberated and adopted at the 25th executive meeting of the Ministry of Agriculture on 30 September 2006, promulgated on 17 October 2006, in effect as of 1 November 2006), Articles 9, 10, 11. 202 Food Hygiene Law of the People’s Republic of China (adopted at the 16th Meeting of the Standing Committee of the Eighth National People’s Congress on October 30, 1995 and promulgated by Order No. 59 of the President of the People’s Republic of China on October 30, 1995, in force as of 30 October 1995), Article 1. ‘Food’ meant ‘any finished prod- uct or raw material intended for people to eat or drink, as well as any product that has
… (2) foods that contain or are contaminated by toxic or deleterious sub- stances and can thus be injurious to human health; … (7) foods that affect nutrition or health because they have been adulterated, mixed up or mislabeled; …208
traditionally served as both food and medication, with the exception of products used solely for medical purposes’: Article 54, first indent. Available at http://en.pkulaw.cn/ display.aspx?id=116&lib=law&SearchKeyword=&SearchCKeyword=%ca%b3%c6%b7 %ce%c0%c9%fa%b7%a8, last accessed 20 February 2014. 203 Ibid., Article 3. 204 Burns et al., ‘Dublin’, supra Chapter 2 note 137, at 8–15. 205 Food Hygiene Law, Article 6. 206 Ibid., Article 54, paragraph 1. 207 Ibid., Article 4, paragraph 2. 208 Ibid., Article 9.
Production, marketing and use of food additives were required to conform to hygiene standards; if they did not, their marketing or use was prohibited.209 However, melamine would not have fit within the Law’s definition of food additive as ‘any synthetic compound or natural substance put into food to improve its quality, color, fragrance or taste, or for the sake of preservation or processing’.210 Foods for infants or preschool children were required to con- form to nutritive and hygienic standards of the Ministry of Health.211 Supervision was the responsibility of the health authorities of local people’s government at county level above,212 except in the case of agencies for food hygiene supervision established by departments in charge of railways or other means of transportation.213 Such responsibility included investigating food poisoning or food contamination accidents and taking appropriate control measures,214 making inspections and undertaking supervision regarding acts in violation of the Hygiene Law215 and determining responsibility of violators and imposing administrative penalties.216 The same authorities had the power to determine administrative penalties.217 Health authorities of local people’s government at county level or above were required to supervise food hygiene within their jurisdictional scope,218 but the legislative provisions concerning supervision were general or con- cerned ex post supervision,219 apart from the fact that Sanlu was exempt from inspections. Health authorities were entitled (but not required) to take provi- sional control measures, including sealing up the food and its raw ingredients, toward a food producer or marketer ‘who is responsible for a food poisoning accident which has already occurred or for which there is evidence of the possi- bility of occurring’ [emphasis added].220 The Law provided sanctions for anyone causing a food poisoning incident or transmission of a disease caused by food-borne bacteria.221 Anyone who
209 Ibid., Article 11. 210 Ibid., Article 54, paragraph 2. 211 Ibid., Article 7. 212 Ibid., Article 32, paragraph 1. 213 Ibid., Article 32, paragraph 2. 214 Ibid., Article 33(5). 215 Ibid., Article 33(6). 216 Ibid., Article 33(7). 217 Ibid., Article 49. 218 Ibid., Article 32, paragraph 1. 219 See ibid., Article 33. 220 Ibid., Article 37(1). 221 Ibid., Article 39.
222 Ibid., Article 39, paragraph 2. 223 Ibid., , Article 39, paragraph 3. 224 Ibid., Article 43. 225 Huang, Health, supra Chapter 2 note 260, p. 122. 226 Product Quality Law of the People’s Republic of China, Adopted at the 30th Meeting of the Standing Committee of the Seventh National People’s Congress on February 22, 1993, available at http://en.pkulaw.cn/display.aspx?id=615&lib=law&SearchKeyword=&Search CKeyword=%b2%fa%c6%b7%d6%ca%c1%bf%b7%a8, last accessed on 26 February 2015. 227 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 October 31, 1993, and takes effect as of January 1, 1994, available at http:// en.pkulaw.cn/display.aspx?id=6137&lib=law&SearchKeyword=&SearchCKeyword=%cf %fb%b7%d1%d5%df%c8%a8%d2%e6%b1%a3%bb%a4%b7%a8, last accessed 26 February 2015. 228 On measures taken between 2006 and 2008, see http://www.hkexnews.hk/listedco/ listconews/sehk/2010/1126/01117/EWPDAIRY-20101109-11.pdf, p. 70, accessed 11 April 2012. 229 Provisions on the Administration of Food Recall (deliberated and adopted at the execu- tive meeting of the General Administration of Quality Supervision, Inspection and Quarantine, 24 July 2007, promulgated and effective as of 27 August 2007) (hereinafter Food Recall Provisions 2007).
230 Ibid., Article 4. 231 Ibid., Article 5. 232 Ibid., Article 18. 233 Ibid., Article 25. 234 Ibid., Article 19. 235 Ibid., Article 25. 236 Ibid., Article 34, paragraph 1. 237 Ibid., Article 34, paragraph 2. 238 Ibid., Article 35. 239 Ibid., , Article 35. 240 Ibid., Article 36. 241 On shortcomings of the Food Hygiene Law, see Hunan Liu, William A. Kerr and Jill E. Hobbs, ‘Product Safety, Collateral Damage and Trade Policy Responses: Restoring
The 2009 Food Safety Law The 2009 Food Safety Law was enacted in the context of a set of policies which were aimed at preserving social stability. The set of policies comprised not only seeking to adopt a national food safety law but also ensuring the quality of dairy products, restructuring the dairy sector and managing an array of institu- tions, possible sanctions and potential compensation. These policies were shaped by the main features of the Chinese party-state: the central role of the cpc, the institutional pattern of fragmented authoritarianism and the tension between professional relations and leadership relations. The several elements of the set of policies and the main features of the party-state conditioned, informed and shaped the 2009 Food Safety Law. A proposal for a national food safety law to replace the outdated 1995 Food Hygiene Law was originally on the agenda of the National People’s Congress in 2003.242 Despite the Fuyang crisis and other food safety incidents, it made little progress. In August 2007 the State Council issued a White Paper on Food Safety.243 It portrayed in some detail the structure and problems of the food- producing sector and laid the basis for eventual legislative reform. The first reading of the proposed food safety law was concluded in late 2007. The melamine crisis then stimulated much greater attention to food safety. Subsequent readings took only five months, with implementing regulations being drafted immediately and entering into effect ‘only a month after the law itself’.244 On 28 February 2009 the Standing Committee of National People’s Congress adopted a new Food Safety Law.245
Confidence in China’s Exports’, Journal of World Trade, 43, 1, February 2009, 97–104, at 108–109. 242 Vivien Bath and Mary Ip, ‘Wealth and Loss in Changing Economic Times: Reforms in Bankruptcy and Consumer Protection Laws’, in John Garrick (ed), Law, Wealth and Power in China: Commercial Law Reforms in Context (Routledge, London and New York, 2011), pp. 230–250, at 244 (hereafter Bath and Ip, ‘Wealth’). 243 State Council, White Paper on the Quality and Safety of Food in China, available at http://www.china.org.cn/english/news/221274.htm, last accessed 15 December 2014. 244 Bath and Ip, ‘Wealth’, supra note 242, at 244, who note (at 244–245) the rapid drop in Chinese dairy exports after the melamine scandal and remark that ‘The main factor behind the acceleration of the enactment of the Food Safety Law may well not have been the 55,000 babies suffering from kidney illness, but the financial impact of the restrictive measures taken against Chinese dairy products in overseas markets’ [original italics omitted]. 245 Food Safety Law of the People’s Republic of China (adopted at the 7th Session of the Standing Committee of the 11th National People’s Congress of the People’s Republic of China on 28 February 2009, promulgated by Order No. 9 of the President of the People’s Republic of China on 28 February 2009 and effective as of 1 June 2009) (hereafter Food
The 2009 Food Safety Law reflected widespread concerns about the food safety, which reached a dramatic new low point with the melamine scandal.246 It consisted of 104 articles grouped into ten sections: General Provisions, Monitoring and Assessment of Food Safety Risks, Food Safety Standards, Food Production and Business Operation, Food Inspection, Import and Export of Food, Handling of Food Safety Accidents, Supervision and Administration, Legal Liabilities, and Supplementary Provisions. It abrogated and replaced the 1995 Food Hygiene Law (Article 104). The Chinese government did not notify the Food Safety Law to the wto Committee on Sanitary and Phytosanitary Measures (sps Committee),247 as would usually be the case under wto law. It sought to justify its action by claiming that
The Food Safety Law is based on the previous Food Hygiene Law and there is no technical requirement that will have a major impact on inter- national trade, therefore, China had not submitted a notification before the Law was passed. However, after the Food Safety Law entered into force, China timely submitted notifications on the 178 relevant food safety rules and standards based on the Law and provided time for com- ments by the members.248
China’s main trading partners did not find this explanation very convincing.249 In any event, regardless of this legal dispute about interpretation of wto
Safety Law). An unofficial English translation is available at United States Department of Agriculture, Foreign Agricultural Service, Global Agricultural Information Network (gain) Report, Food Safety Law of the People’s Republic of China 2009, gain Report CH9019, http://apps.fas.usda.gov/gainfiles/200903/146327461.pdf, last accessed 10 December 2014. Among numerous commentaries in English, see Liu, ‘Obstacles’, supra note 313, at 283–290; Bian Yongmin, ‘An Overview of Chinese Law on Food Safety’, Frontiers of Law in China, 7, 1, March 2012, pp. 91–112. 246 For a very brief account of these discussions, see Benjamin van Rooij, ‘Regulation by esca- lation: unrest, lawmaking and law enforcement in China’, in Trevaskes et al., Politics, supra Chapter 2 note 207, at 86–88. 247 World Trade Organization, Trade Policy Review Body, Trade Policy Review, China: Report by the Secretariat, Revision, WT/TPR/S/230/Rev.1, 5 July 2010, at 35–36, ¶ 43, WT/TPR/S/230/ Rev.1 (July 5, 2010). See also World Trade Organization, Committee on Sanitary and Phytosanitary Measures, Summary of the Meeting of 28–29 October 2009,, G/SPS/R/56, 28 January 2010, paragraph 179. 248 World Trade Organization, Trade Policy Review Body, Trade Policy Review, China, Record of the Meeting, Addendum, WT/TPR/M/230/Add.1, 22 February 2011, at 87 (Questions 61–62). 249 Ibid., at 87 (follow up to Question 61) [eu], pp. 215–216 (Question 22(a); Answer (a–c)) [us].
250 According to the Food Safety Law 2009 Article 5, such concerns were governed by the Law on the Quality and Safety of Agricultural Products. Available at http://en.pkulaw.cn/ display.aspx?id=7344&lib=law&SearchKeyword=&SearchCKeyword=%ca%b3%c6%b7 %b0%b2%c8%ab%b7%a8, last accessed 26 February 2015. 251 Food Safety Law, Chapter vi Import and Export of Food, Articles 62–69. 252 Ibid., Article 2, paragraph 2. I have two different English translations of the Law at my disposal. One, available on the authoritative Peking University source China Law Info, reads: ‘The quality and safety management of edible primary products sourced from agri- culture (hereinafter referred to as “edible agricultural products”) shall be governed by the provisions of the Law on the Quality and Safety of Agricultural Products. However, the formulation of quality and safety standards for edible agricultural products and the release of safety information about edible agricultural products shall be governed by the relevant provisions of this Law’. The other version, available as gain Report – CH9019 from the usda Foreign Agricultural Service, reads ‘The quality and safety management of primary agricultural products for consumption (hereinafter referred to as “Edible Agricultural Products”) shall abide by the Law of the People’s Republic of China on Quality and Safety of Agricultural Products. However, this Law must be observed when developing quantity and safety standards and releasing food safety information on edible agricultural products’. In the following text discussion I use the latter source.
253 Ibid., Article 4, paragraph 1. 254 Ibid., Article 4, paragraph 2. 255 Ibid., Article 4, paragraph 3. 256 See ibid., Articles 5, 6. As of 2010, the Food Safety Commission of Guangdong Province was described as being composed of ‘representatives of eighteen departments’: Chan et al., Global Governance, supra note 174, p. 240, note 39. 257 Food Safety Law 2009, Article 29, paragraph 1. 258 Chan et al., Global Governance, supra note 174, p. 130. 259 Ibid., p. 130. 260 According to Chinese Government statistics in 2009: Sarah K. Lowder, Jakob Skaet and Saumya Singh, ‘What do we really know about the number and distribution of farms and family farms in the world?’ Background paper for The State of Food and Agriculture 2014, esa Working Paper No. 14–02, Agricultural Development Economics Division, Food and
Agriculture Organization of the United Nations, Rome, April 2014, p. 2, available at http:// www.fao.org/docrep/019/i3729e/i3729e.pdf, last accessed 21 January 2015. 261 Liu, ‘Obstacles’, supra Chapter 2 note 122, at 298, which cites further sources. 262 Ibid., at 298, which cites further sources. 263 Chan et al., Global Governance, supra note 174, p. 129. 264 Food Safety Law, Article 29, second paragraph.
265 Ibid., Article 30. 266 Ibid., Article 31. 267 Ibid., Article 32. 268 Ibid., , Article 33, paragraph 1. 269 Ibid., Article 56. This sentence is based on the two slightly different translations provided by usda and China Law Info. 270 Ibid., Article 11, paragraph 1. 271 Ibid., Article 11, paragraph 2. 272 Ibid., Article 11, paragraph 2.
273 Ibid., Article 12. 274 Ibid., Article 13. 275 Ibid., Article 27. 276 Ibid., Article 28, paragraph 1. 277 Ibid., Article 60, paragraph 1. 278 Ibid., Article 36. 279 Ibid., Articles 36, 37. 280 Ibid., Article 39. 281 Ibid., Article 41.
282 Ibid., Article 42. 283 See especially ibid., Article 87. 284 On the development of a traceability system in China, see Zhou and Jin, Mangement, supra note 570, p. 21. 285 Measures for the Administration of Alcohol Circulation (2006) [Article 14: suo yuan 溯源: ‘traceability’], and the Measures for the Supervision and Administration of the Inspection and Quarantine of Imported and Exported Meat Products (2011) [Article 21: zhui su, 追溯: ‘traceable’]. Note that under the 2007 Administrative Provisions on Food Labeling, a food label needed to indicate only the place of production of the food at the level of the prefec- ture only (Article 7) and, in the case of manufactured food, to state the name and address of the manufacturer (Article 8): Administration Provisions on Food Labeling, (deliber- ated and adopted at the executive meeting of the General Administration of Quality Supervision, Inspection and Quarantine on 24 July 2007, promulgated by Order No. 102 of the General Administration of Quality Inspection, Supervision and Quarantine on 1 September 2008, effective 1 September 2008). 286 ‘Development and Reform Commission, Ministry of Industry issued the 12th Five-Year Development Plan of the food industry’, posted by admin on 25 April 2012, available at http://www.chinafinancial.info/development-and-reform-commission-ministry-of -industry-issued-the-12th-five-year-development-plan-of-the-food-industry/, accessed 3 May 2012; Zhou Wenting, ‘Quality of some preserved fruit questioned’, China Daily, Friday, 27 April 2012, p. 5. This system is now in the planning stages. 287 Food Safety Law 2009, Article 43. 288 Ibid., Article 45.
289 Ibid., Article 46. 290 Ibid., Article 47. 291 Ibid., Article 53. 292 Ibid., Article 53, paragraph 4. 293 Ibid., Article 62. 294 Ibid., Article 63. 295 Ibid., Article 64. 296 Ibid., Article 68, paragraph 1. 297 Ibid., Article 70, paragraph 1. 298 Ibid., Article 70, paragraph 2. 299 Ibid., Article 71, paragraph 1.
The latter two organs should report to higher authorities.300 The lines of com- munication are clear, but the precise legal obligations are not well-defined, even though the Law provides that no organization or individual ‘shall conceal, lie, delay, or intentionally destroy the evidence of any food safety accident’.301 It also provides for cooperation between the health department and other departments at county level or above in dealing with food safety accidents.302 If a food safety accident involves more than two provinces, autonomous regions or municipalities, the national Ministry of Health is responsible for organizing the investigation regarding responsibility for the accident.303 Such investigation is to cover not only the liability of the organization where the incident occurred but also ‘any negligence or misconduct by regulatory agencies on supervision and certification as well as staff at certification institutions’.304 Supervision and administration relies on cooperation between different administrative departments.305 Persons suspected of violating criminal law are to handed over to the public security authorities ‘according to law’.306 A unified national food safety information release system is to be established under the Ministry of Health.307 The 2009 Food Safety Law also provides for legal liability. For food producers or traders who engage in unauthorized food production or trading activities, the potential sanctions are confiscation of the illegal benefits and materials used, a fine of rmb 2,000 – rmb 50,000 if the total value of the illegally pro- duced or traded food or food additive is less than rmb 10,000 or between 5 and 10 times the total value if the total value exceeds rmb 10,000.308 In certain cir- cumstances, the business licence of the producer or trader may also be revoked.309 These circumstances include inter alia
(1) Producing food with non-food raw material or adding chemicals other than food additives or other substances possibly hazardous to human health to food, or producing food with recovered food as raw materials;
300 Ibid., Article 71. 301 Ibid., Article 71, paragraph 4. 302 Ibid., Articles 72–74. 303 Ibid., Article 73, paragraph 2. 304 Ibid., Article 75. 305 See ibid., Article 77. 306 Ibid., Article 81. 307 Ibid., Article 82. 308 Ibid., Article 84. 309 Ibid., Article 85.
(2) Producing or trading food which exceed [sic] food safety standard limits in content of…other substances with possible hazardous [effects] to human health.310
Lesser sanctions, though also including potential revocation of business license, apply to failure to test purchased food materials, produced food, food additives and food related products311 or failure to establish and observe the required system of record keeping.312 Confiscation, fine and business license revocation (as specified in Article 85) also apply to producers or traders who import foods not meeting national Chinese food safety standards.313 who import foods for which there is no national standard without a safety assess- ment.314 or who export foods in breach of the Food Law.315 The lesser sanctions specified in Article 87 apply to importers which do not establish and maintain the required records system.316 For food safety incidents in marketplaces, the Law provides that consolidated trading market operators, stall leasers and trade fair organizers who fail to fulfill their obligations317 shall be jointly liable.318 Government officials and others who fail to perform the required duties when serious food safety incidents occur are to be punished by having a special demerit recorded against them, by demotion, or by removal from office.319 The head of an administrative department (health, agriculture, quality supervi- sion, industry and commerce, food and drug, or other) which fails to do its duty, abuses its authority, or engages in self-seeking conduct, when this causes serious consequences, is to acknowledge the blame and resign.320 In addition to administrative and criminal sanctions, there are broad provi- sions regarding compensation for damage. Article 96, para 1, provides that ‘Anyone in violation of this Law causing personal or property damage or other damage shall be liable for compensation’.321 In addition, a consumer of illegally
310 Ibid., Article 85(1), (2). The quotation is from the usda translation. 311 Ibid., Article 87(1). 312 Ibid., Article 87(2). 313 Ibid., Article 89, paragraph 1 (1). 314 Ibid., Article 89, paragraph 1(2). 315 Ibid., Article 89, paragraph 1(3). 316 Ibid., Article 89, paragraph 2. 317 See ibid., Article 52, paragraph 1. 318 Ibid., Article 52, paragraph 2. 319 Ibid., Article 95, paragraph 1. 320 Ibid., Article 95, paragraph 2. 321 Ibid., Article 96, paragraph 1. The quotation is from the usda translation.
The 2009 State Council Implementing Regulation The State Council promulgated an Implementing Regulation on 20 July 2009.325 Consisting of 62 articles, the Implementing Regulation amplifies and develops the basic provisions of the Food Safety Law. It consists of sections on General Provisions, Food Safety Risk Monitoring and Assessment, Food Safety Standards, Food Production or Marketing, Food Test, Food Import and Export, Handling of Food Safety Accidents, Supervision and Administration, Legal Liability, and Supplementary Provisions. Here I focus on selected issues con- cerning institutions and standards. At national level the Ministry of Public Health is the lead actor, for example in providing a scientific basis for formulating or revising national standards326 or identifying new potential food safety hazards.327 In general, coordination of food safety supervision and management is allocated to the people’s govern- ments at or above county level.328 Public health departments are responsible for notifying enterprise standards to other administrative departments at the
322 Ibid., Article 96, paragraph 2. 323 Ibid., Article 97. 324 Ibid., Article 98. 325 Regulation on the Implementation of the Food Safety Law of the People’s Republic of China (Decree of the State Council of the People’s Republic of China, No. 557, adopted at the 73rd State Council executive meeting on July 8, 2009, promulgated on 20 July 2009, effective as of 20 July 2009) (hereinafter Food Safety Law Implementing Regulation 2009). An unofficial English translation is available at United States Department of Agriculture, Global Agricultural Information Network (gain) Report, China – People’s Republic of, Final Food Safety Law Implementation Measures, gain Report No. CH9066, 14 August 2009, available at http://gain.fas.usda.gov/Recent%20GAIN%20Publications/Final%20 Food%20Safety%20Law%20Implementation%20Measures_Beijing_China%20-%20 Peoples%20Republic%20of_8-14-2009.pdf, last accessed 10 December 2014. 326 Ibid., Article 12(2). 327 Ibid. Article 12(3). 328 See ibid. Article 2.
329 Ibid., Article 18. 330 Ibid., Article 19, paragraph 1. 331 Ibid., Article 63. 332 Ibid., Article 5. 333 See ibid., Article 15. 334 Ibid., Article 17. 335 Ibid., Article 33. 336 Ibid., Article 39.
Conclusion
The melamine crisis produced law. It created a great loss of public confidence in food safety, and a profound sense of urgency on the part of the Chinese central government, and ultimately it led to a new system of food safety regula- tion. In this respect, the adoption of the 2009 Food Safety Law paralleled the adoption of United States food regulation after the publication of Upton Sinclair’s 1906 book The Jungle344 and the enactment of the eu’s Food Safety
337 Ibid., Article 40. 338 Ibid., Article 44. 339 Ibid., Article 49. 340 Ibid., , Article 53. 341 Ibid., Article 57(1), as required in Article 26 of the Implementing Regulation. 342 Ibid., Article 57(2), as required in Article 27 of the Implementing Regulation. 343 Ibid., Article 57(3), as required in Article 28 of the Implementing Regulation. 344 Upton Sinclair, The Jungle (Doubleday, Jabber and Company, New York, 1906).
Law in 2002 as a result of the ‘mad cow’ (Bovine Spongiform Encephalopathy, bse) crisis.345 In China, both the 2009 Food Safety Law and the Implementing Regulation were the result of decisive action at the highest levels of the party- state. Both legal instruments were also bolstered by greater attention by public authorities at all levels and by changing attitudes and expectations about food safety and about government. ‘In the long term, melamine contamination will probably be remembered mostly for bringing about a comprehensive reform of the Chinese food safety regime’.346 From the normative standpoint, the 2009 Food Safety Law was more com- prehensive and more coherent than its predecessor, the 1995 Food Hygiene Law. Compared to the 1995 Food Hygiene Law, China’s first general food safety law represented a change of regulatory paradigm. By orienting legal and administrative norms decisively toward to the achievement and protection of food safety, it had the potential to be more effective, with regard to this objec- tive, than previous arrangements. It is important to emphasise the word ‘potential’, because the emerging legal framework, though a great improve- ment, was conditioned and influenced by the other elements of the set of gov- ernment policies of which it was a part and by the main features of the Chinese party-state in which it was embedded. It retained certain features of the past, and inevitably it could not escape from its institutional, economic, political and social contexts. These institutional features shaped decisively the way in which the melamine crisis produced law, the law it produced and the way it was applied. Nevertheless, the 2009 Food Safety Law strengthened consider- ably the role of administrative regulatory authorities, though not necessarily that of the courts.347 The State Council created the first Food Safety Commission in 2010, follow- ing reports of more melamine-contaminated products in Shanghai, Laoning, Shandong and Shaanxi Provinces. The Director was then Vice-Premier (now Premier) Li Keqiang; Vice-Premiers Hui Liangyu and Wang Qishan were Vice- Directors. The other members were the Minister of Health, the Minister of Agriculture, the Minister of Industry and Information and the Directors of
345 Regulation (ec) No. 178/2002 of the European Parliament and of the Council of 28 January 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, Official Journal of the European Communities, 1 February 2002, L31/1; available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2002:031:0001:0024:EN:PDF, last accessed 15 December 2014 (hereafter EU General Food Law). 346 Pei et al.,‘Implications’, supra Chapter 2 note 294, at 412. 347 See Balzano, ‘Administrative Innovation’, supra note 157, at 60–80.
infosan has been working directly with the Ministry of Health (MoH), China, in collaboration with the who Country Office in China. Through the infosan Emergency surveillance system, who had learned of the contamination of infant formula with melamine and requested further information about the event on 11 September 2008. MoH confirmed on 12 September 2008 that incriminated products from the Sanlu Company had not been exported and provided who with a description of the development of the event. Through further interaction between infosan and MoH the issue of potential other use of the contaminated milk pow- der as well as parallel (illegal) distribution of contaminated milk powder was raised. An infosan Emergency Alert was subsequently distributed to the entire network on 16 September 2008 alerting infosan members
348 Chan et al, , Global Governance, supra note 174, p. 133. 349 Xinhua News Agency, ‘Heavyweight commission highlights China’s determination to ensure food safety’, Beijing, 6 May 2012, available at http://am774.rbc.cn/netfm/english _service/news/201002/t20100211_576998.html, last accessed 5 September 2012.
of the event and of the possibility of contaminated products finding their way to other markets.350
These closer ties between the Chinese government and international organisa- tions in the field of public health and food safety built on previous experience with the wto following Chinese accession in 2001 and with the who after the sars crisis. Trade policy reviews of China’s trade policy under the wto Trade Policy Review Mechanism paid increasingly detailed attention to food safety regulation in China.351 In 2008, the un published a thorough study and recom- mendations regarding food safety regulation in China352 In addition, both the United States and the European Union began to build further on existing forms of cooperation with China with regard to food safety.353 These developing transnational legal relations shaped Chinese food safety law in two different ways. First, ‘external’ factors increasingly influenced the actors, assumptions
350 See: http://www.who.int/foodsafety/fs_management/infosan_events/en/index4.html and http://www.health.gov.bt/newsletters/infosan.pdf ((last visited: 04/06/2012). Also available on http://fr.slideshare.net/ringer21/last-reviewedupdated, last accessed 26 April 2015. 351 See Chapter 8 of the book. 352 United Nations in China, ‘Advancing Food Safety in China’, Occasional Paper, Office of the United Nations Resident Coordinator in China, March 2008, available at http://bepast .org/docs/china%20health/food%20safety/China%20and%20Food%20Safety_2008 _UN.pdf, last accessed 21 January 2015. 353 See for example, as the basis for US-China cooperation, the 2007 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, available at http://www.fda .gov/InternationalPrograms/Agreements/MemorandaofUnderstanding/ucm107557.htm, last accessed 9 December 2012; see also Steve Suppan, u.s. – China Agreement on Food Safety: Terms and Enforcement Capacity (Institute for Agriculture and Trade Policy, Minneapolis mn, May 2008), available at http://www.iatp.org/documents/us-china -agreement-on-food-safety-terms-and-enforcement-capacity, last accessed 21 January 2015. For eu-China cooperation, the 2006 Memorandum of Understanding on Administrative Co-operation Arrangements between the European Commission’s Directorate General for Health and Consumer Protection (dg-sanco) and The General Administration of Quality Supervision, Inspection and Quarantine of the People’s Republic of China (aqsiq), available http://ec.europa.eu/consumers/archive/cons_safe/ prod_safe/memorandum_china.pdf, last accessed 9 December 2014. See also Linden J. Ellis and Jennifer L. Turner, Sowing the Seeds: Opportunities for u.s. – China Cooperation on Food Safety (Woodrow Wilson International Center for Scholars, Washington, dc, September 2008), available at http://www.wilsoncenter.org/sites/default/files/CEF_food _safety_text.pdf, last accessed 23 January 2015.
354 Snyder, Legal Pluralism, supra Chapter 2 note 7, at 13.
Introduction
The melamine crisis revealed major gaps in Chinese food safety standards, specifically milk and dairy product standards. The Chinese State Council pledged in July 2012 to resolve China’s food safety problems within three years. Its plan included better regulation, improved supervision, particularly of produc- tion, institutional improvements and more effective sanctions. A key element in the plan was the enactment and application of improved food safety standards.1 The role of standards in China’s search for food safety is the subject of this chapter. This chapter explores the impact of the melamine crisis on the develop- ment of Chinese food safety standards, focusing on the dairy sector. Building on preceding chapters, it traces the development of the legal and regulatory framework governing Chinese standards. It shows how the melamine crisis stimulated a rapid but nonetheless partial transnationalisation of Chinese dairy standards. The process of transnationalisation also contributed to a vig- orous debate about the relationship between domestic and international stan- dards, known as alignment, which is noted here and explored in more detail later in the book. The chapter emphasizes the types of domestic standards, relations between these different types, the changing relationship between domestic standards and international standards,2 and the participation of private actors in making public (governmental) standards.3 It underscores the extent to which food safety standards, as any standards, are a double-edged sword: on the one hand, they are intended to ensure product quality and safety; on the other hand, they serve as barriers to entry into the market. The post-crisis debate about dairy standards was also imbricated in what some readers might consider to be a
1 Jin Zhu, ‘Food safety becomes national priority’, China Daily, Thursday, 5 July 2012, p. 3. See also Editorial, ‘Food safety timetable’, China Daily, Thursday, 5 July 2012, p. 8. 2 For further discussion, see the later chapter on the review of Chinese food safety law in the framework of the wto Trade Policy Review Mechanism (tprm). 3 Private standards lie outside the scope of this chapter. For an overview, see Harm Schepel, The Constitution of Private Governance: Product Standards in the Regulation of Integrating Markets (Hart Publishing, Oxford, 2005) (hereafter Schepel, Private Governance).
© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004306929_005
The Normative Framework for Standards before Melamine
wto sps and tbt Agreements We can situate the reform of Chinese dairy standards in a broader legal frame- work by referring briefly to two wto agreements, the Agreement on Sanitary and Phytosanitary Measures (sps Agreement) and the Agreement on Technical Barriers to Trade (tbt Agreement). These agreements are significant for pres- ent purposes for four reasons. First, they provide the de facto international normative framework for national standards-making. Second, they lay down requirements and procedures for wto Members to notify their standards to other wto Members. Third, they supply the internationally recognized termi- nology for referring to standards. Fourth, they constitute an indispensable parameter for the continuing debate about alignment. Chapters 6 and 7 analyse these Agreements as they are used in wto dispute settlement. The sps Agreement applies to food safety measures, as defined in Annex A of the Agreement:
Sanitary or phytosanitary measure – Any measure applied: (a) to protect animal or plant life of health within the territory of the Member from risks arising from the entry, establishment or spread of pests, diseases, disease-carrying organisms or disease-causing organisms; (b) to protect human or animal life or health within the territory of the Member from risks arising from additives, contaminants, toxins or disease-causing organisms in foods, beverages or feedstuffs:
(c) to protect human life or health within the territory of the Member from risks arising from diseases carried by animals, plants or prod- ucts thereof, or from the entry, establishment or spread of pests; (d) to prevent or limit other damage within the territory of the Member from the entry, establishment or spread of pests.4 sps measures embrace a very wide variety of normative instruments related to food safety.5 In contrast, the tbt Agreement covers two types of norms6 which may lie outside the scope of the sps Agreement7 but which nevertheless may be con- cerned with food safety. The first type of norm consists of technical regula- tions, defined as follows:
Document which lays down product characteristics, or their related pro- cesses and production methods, including the applicable administra- tive provisions, with which compliance is mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or
4 World Trade Organization Agreement on Sanitary and Phytosanitary Measures (hereafter sps Agreement), Article 1 and Annex A, paragraph 1. The sps Agreement is published in World Trade Organization, The Results of the Uruguay Round of Multilateral Trade Negotiations: The Legal Texts (gatt Secretariat, Geneva, 1994, reprinted by the wto in 1995), pp. 69–84, and subsequently reprinted in World Trade Organization, The Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations (Cambridge University Press, Cambridge, since 1999), pp. 59–72. 5 Ibid., Annex A, paragraph 1. 6 World Trade Organization Agreement on Technical Barriers to Trade (hereafter tbt Agreement), Article 1. The tbt Agreement is published in World Trade Organization, The Results of the Uruguay Round of Multilateral Trade Negotiations: The Legal Texts (gatt Secretariat, Geneva, 1994, reprinted by the wto in 1995), pp. 138–162, and subsequently reprinted in World Trade Organization, The Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations (Cambridge University Press, Cambridge, since 1999), pp. 121–142. 7 Ibid., Article 1.5, provides that the tbt Agreement does not apply to sanitary and phytosani- tary measures as defined in Annex A of the sps Agreement. See also European Communities – Measures Concerning Meat and Meat Products (Hormones), Panel Report, WT/DS26/R/ USA, WT/DS48/R/CAN, paragraph 8.29 (hereafter ec – Hormones, Panel Report): European Communities – Measures Affecting the Approval and Marketing of Biotech Products, Panel Report, WT/DS291, 292, 293/R, adopted 21 November 2006, paragraphs 7.2524, 7.2528, 7.3412–7.3413, 8.38, 8.42–8.46, 8.53, 8.57–8.62; United States – Measures Affecting the Production and Sale of Clove Cigarettes, Panel Report, WT/DS406/R, paragraph 7.14.
labelling requirements as they apply to a product, process or production method.8
The second type of norm refers to standards, defined as follows:
Document approved by a recognized body, that provides, for common and repeated use, rules, guidelines or characteristics for products or related processes and production methods, with which compliance is not mandatory. It may also include or deal exclusively with terminology, sym- bols, packaging, marking or labelling requirements as they apply to a product, process or production method.9
In the terminology of the tbt Agreement, legally binding measures are called technical regulations, while non-legally-binding measures are called stan- dards. This terminology differs from ordinary English language usage, accord- ing to which both types of norms are called standards. It also differs from Chinese language terms and Chinese legal terminology, of course, and from their translation into English. For convenience and clarity, the following dis- cussion uses ordinary English terminology and ordinary English translation of Chinese terminology so far as possible. In other words, it uses ‘standard’ as a generic term, not a legal term in the sense of the tbt Agreement. However, it indicates clearly whether or not a standard is legally binding (i.e. a technical regulation in tbt terms) or not legally binding (i.e. a standard in tbt terms). Both the sps and the tbt Agreements, albeit in different ways, aim to seek a balance between respect for national determination of economic and social policies and greater international legal and economic integration. While emphasizing respect for national policies within certain limits,10 their respec- tive Preambles reiterate their orientation toward international harmoniza- tion11 and refer to the ‘important contribution’ which international standards can make to the development of a multilateral normative framework designed to minimize the effects of sps measures on trade12 or the ‘important contribu- tion that international standards and conformity assessment systems can
8 tbt Agreement, supra note 764, Annex 1 (1). 9 Ibid., Annex 1(2). 10 sps Agreement, supra note 762, 1st and 7th recitals; tbt Agreement, supra note 764, Preamble, 6th and 7th recitals. 11 sps Agreement, supra note 762, 6th recital; tbt Agreement, supra note 763, 3rd and 4th recitals. 12 sps Agreement, supra note 762, Preamble, 4th and 5th recitals.
13 tbt Agreement, supra note 764, 3rd recital. 14 sps Agreement, supra note 762, Article 3.1. ec – Measures Concerning Meat and Meat Products (Hormones), Appellate Body Report, WT/DS26, 48/AB/R, adopted 13 February 1998 (hereafter ec – Hormones, ab Report). The sources of international standards under the sps Agreement or the tbt Agreement are discussed in Chapter 6. 15 sps Agreement, supra note 762, Article 3.3. On risk assessment, see Article 5 sps. 16 tbt Agreement, supra note 764, Article 2.4. Legitimate objectives include but are not lim- ited to ‘national security requirements; the prevention of deceptive practices; protection of human health or safety, animal or plant life or health, or the environment’: Ibid., Article 2.2. 17 Ibid., Article 4.1. The Code of Good Practice for the Preparation, Adoption and Application of Standards is to be found in tbt Agreement, Annex 3. 18 Ibid., Article 4.1.
19 Ibid., Annex 3 (F). 20 sps Agreement, supra note 762, Article 7, Annex B. 21 Ibid., Annex B(5). 22 Ibid., Annex B(6). 23 Ibid., Annex B(7). 24 tbt Agreement, supra note 764, Article 2.5.
Historical Background of Standards in China The normative framework in China for food safety standards was established long before establishment of the wto, before Chinese accession and before the melamine crisis.34 Mu Rongping and Wu Zhuoliang date the history of
25 Ibid., Article 2.9. 26 Ibid., Article 2.10. 27 Ibid., Article 2.12. 28 Ibid., Article 4.1. Ibid., Annex 3, contains the Code. 29 Ibid., Article 4.1. 30 Ibid., Articles 5–9. 31 Ibid., Annex 3, Code of Good Practice for the Preparation, Adoption and Application of Standards. 32 sps Agreement, supra note 4, Annex B(3). 33 tbt Agreement, supra note 6, Article 10. 34 This paragraph and the next are based largely on Mu Rongping and Wu Zhuoliang, ‘The Rise of Standards in National Technology Policy in China’, available at http://www .strategicstandards.com/files/China.pdf, last accessed 18 December 2014 (hereafter Mu and Wu, ‘Rise’).
Chinese standards to the Qin dynasty (221–206 bc), and they trace more mod- ern developments to the establishment of the Committee on Industry Standards in December 1931. The first Standard Law was adopted in September 1946, and the Committee on Industry Standards and the National Metrology Bureau were merged to form the Central Standard Bureau in March 1947. Based on the model of Soviet Union central planning, the Standard Bureau of the State Commission of Science and Technology was established in 1957. Basic administrative regulations were adopted by the State Council in 1962, in the form of the Administration Statute of Technical Standards for Product of Industry, Agriculture, and for Project Reconstruction. This Statute delineated three types of standards: national, ministry and enterprise standards.35 Many standards were neglected or destroyed during the Cultural Revolution (1966–1976).36 Starting with ‘reform and opening’ in the late 1970s, the State Council estab- lished a new normative framework for standards.37 The key measures were the 31 July 1979 Administration Statute for National Standardization,38 the 1982 Administration Statute for Adopting International Standards (probation)39
35 The State Council: the Administration Statute of Technical Standards for Product of Industry, Agriculture, and for Project Reconstruction (gongnongye chanpin he gongcheng jianshe jishubiaozhun guanlibanfa), Nov. 1962, article 14, cited in Mu and Wu, ‘Rise’, supra note 792, p. 3. 36 Mu and Wu, ‘Rise’, supra note 34, pp. 2–3. 37 On the standardization system in general, see Chaoyi Zhao and John M. Graham, ‘The prc’s Evolving Standards System: Institutions and Strategy’, Asia Policy, Number 2, July 2006, pp. 63–87; Richard P. Suttmeier, Xiangkui Yao and Alex Zixiang Tan, ‘Standards of Power? Technology, Institutions and Politics in the Development of China’s National Standards Strategy’, The National Bureau of Asian Research, 2006; Scott Kennedy, Richard P. Suttmeier and Jun Su, ‘Standards, Stakeholders and Innovation: China’s Evolving Role in the Global Knowledge Economy’, The National Bureau of Asian Research, Washington d.c., nbr Special Report No. 15, September 2008 (hereafter Kennedy et al., ‘Stakeholders’); Pinghui Xiao, ‘China’s Food Standardization System, Its Reform and Remaining Challenges’, European Journal of Risk Regulation, 4, 2012, 507–520, at 509–511 (hereafter Xiao, ‘Standardization’). 38 Administration Statute for National Standardization, promulgated by State Council on July 31, 1979, available at http://www.law-lib.com/lawhtm/1949-1979/43978.htm, accessed 2 March 2015. 39 Administration Statute for Adopting International Standards (probation), promulgated by State Economic and Trade Commission (now Ministry of Commerce), State Scientific and Technological Commission (now Ministry of Science and Technology) and Standardization Administration on 17 March 1982, available at http://www.ytgsj.gov.cn/ n8951/n8971/n9031/n13146/415570.html, accessed 2 March 2015.
The 1988 Standardization Law In 1988, China adopted its current Standardization Law, which came into force on 1 April 1989.43 Its aims included the improvement of product quality and ‘suiting standardization to the needs in socialist modernization and in the development of economic relations with foreign countries’.44 It reflected certain main features of the organization of the Chinese party-state and its administrative organization. The adoption, types, administration and review of standards revealed a pattern of great fragmentation. The Standardization Law provided for the administration of stan- dards. Article 5 envisaged an intricate, potentially overlapping division of responsibility:
The department of standardization administration under the State Council shall be in charge of the unified administration of standards throughout the country. Competent administrative authorities under the State Council shall, in line with their respective functions, be in charge of standardization in their respective departments and trades. The depart- ments of standardization administration of provinces, autonomous regions and municipalities directly under the Central Government shall be in charge of the unified administration of standardization within their respective administrative areas. Competent administrative authorities
40 Administration Statute for Adopting International Standards, promulgated by Standardization Administration on 27 March 1984, available at http://www.110.com/fagui/ law_144347.html, assessed 2 March 2015. 41 Mu and Wu, ‘Rise’, supra note 34, pp. 3–4. 42 On the reforms, see Cheng Yuan, East–West Trade: Changing Patterns in Chinese Foreign Trade Law and Institutions (Oceana Publications, New York, 1991). 43 Standardization Law of the People’s Republic of China ‘(adopted at the Fifth Meeting of the Standing Committee of the Seventh National People’s Congress on December 29, 1988, promulgated by Order No. 11 of the President of the People’s Republic of China on December 29, 1988, and effective as of April 1, 1989)’. 44 Ibid., Article 1.
under the governments of provinces, autonomous regions and munici- palities directly under the Central Government shall, in line with their respective functions, be in charge of standardization in their respective departments and trades within their respective administrative areas. The standardization administrative departments and the competent admin- istrative authorities of cities and counties shall, in line with their respec- tive functions as assigned by the governments of provinces, autonomous regions and municipalities directly under the Central Government, be in charge of standardization within their respective administrative areas.45
The fragmented division of labour combined with weak coordinating powers was replicated at every level of the administrative hierarchy. The Standardization Law introduced a new standards hierarchy by permit- ting four potential types of standards. Article 6 of the Law provided for national standards, or in their absence for trade standards, or in their absence for local standards, or in their absence for enterprise standards. Each was to be formu- lated by a different authority:46 central government, various ministries, provin- cial governments or enterprises, respectively. In case of conflict, higher-level standards took priority over lower-level standards, except that an enterprise standard could take precedence if it set a higher level of product quality than another, hierarchically superior standard. Standards of each level were (and are) coded: ‘gb’ for national standards, industry-specific codes for professional, trade or sectoral standards, ‘db’ for local government standards and ‘O’ for enterprise standards.47 The code ‘gb/Z’ was used for National Standardization Guiding Technical Documents concerning rapidly developing technologies.48
45 Ibid., Article 5. 46 Ibid., Article 6. 47 The English version of all Chinese standards may be found on the website of Code of China, a professional Chinese code translation, at http://www.codeofchina.com/, last accessed 28 January 2015. Standards are classified by Chinese classification, professional classification and ics (International Classification of Standards) classification. On the ics classification scheme, see International Organization for Standardization (iso), International Classification for Standards (International Organization for Standardization, Geneva, 6th edition 2005), available at http://www.iso.org/iso/international_classifica- tion_for_standards.pdf, last accessed 28 January 2015. On vocabulary, see Code of China, GB/T 20000.1-2002 Guide for standardization – Part 1: Standardization and related activities – General vocabulary (English), available at http://www.codeofchina.com/gb/ comprehensive/20348.html, last accessed 27 January 2015. 48 Standards Portal, ‘prc Standards System: Standards Used in China’, www.StandardsPortal. org, available at http://www.standardsportal.org/usa_en/prc_standards_system/standards
In Chinese terms, standards may be either compulsory, that is, legally bind- ing, or recommended/voluntary, that is, not legally binding, except for food safety standards, which are always compulsory. However, Chinese terminology and practice do not conform to wto terminology, with its distinction between technical regulations, which are legally binding, on the one hand, and stan- dards, which are not legally binding,49 on the other hand. In Chinese, the word 标准 biāozhǔn designates both legally binding and non-legally-binding mea- sures adopted by standards-setting bodies. It is composed of two characters. The first character, 标 biāo, has been defined as ‘mark’, ‘standard’, ‘prize’;50 or as ‘target; to quote a price; to bid (commercially)’; sign;51 or as ‘mark’, ‘signal’.52 The second character 准 zhǔn, can be defined as ‘allow’;53 or as ‘water level; standard; to deem to meet a standard; to permit, allow; to cause to meet a stan- dard; to regulate; to be up to a standard; be accurate’54 or as ‘permit, standard, norm, criterion’.55 The word 标准 biāozhǔn denotes all standards, regardless of their normative force.56 Within this single term, standards could be differentiated according to their normative force. However, the distinction between legally binding and non- legally-binding norms did not run consistently through all types of standards. For example, according to Article 7 of the Law, national standards and trade standards could be either compulsory or voluntary. Measures which are not legally binding were coded with the prefix ‘T’, such that, for example, the prefix
_used_china.aspx, last accessed 18 December 2014; Xiao, ‘Standardization’, supra note 795, at 509–511. 49 In practice, the discrepancy does not seem to cause any real problems concerning Chinese compliance with wto law, since Chinese mandatory standards are treated in wto termi- nology as technical regulations: Xiao, ‘Standardization’, supra note 37, at p. 509, note 17. 50 Collins Chinese Dictionary (HarperCollins Publishers, Glasgow, 3rd edition 2011), p. 25 (hereafter Collins Dictionary). 51 William McNaughton, Reading and Writing Chinese, Simplified Character Edition (Tuttle Publishing, Rutland, vt, 3rd revised edition 2005), p. 210, character 1049 (hereafter McNaughton, Reading). 52 The Pinyin Chinese-English Dictionary (The Commercial Press, Hong Kong, 1949), p. 40 (hereafter Pinyin Dictionary). 53 Collins Dictionary, supra note 50, p. 499. 54 McNaughton, Reading, supra note 51, p. 145. 55 Pinyin Dictionary, supra – note 52, pp. 925–926. 56 The term 国标 [Guóbiāo] is an abbreviation of 国家标准 [Guójiā biāozhǔn], used for national standards, especially technical standards. See Baidu Baike, available at http:// baike.baidu.com/link?url=Gh3RvoQmdjoLYFAOYnQl2WFQbPI-8X6bjKTkcodFGSzS GJ8p4OouWOCmoL52PGck1QcuPT7JVhB1Sn_L9BC_hlzMHpgli3AMxzGAzDunbvOjF0h2b MWFhI8QhRytM0uDXSlhM9hzsto48vIVPbqPGK, last accessed 7 March 7, 2015.
‘GB/T’ designated a non-legally-binding national standard.57 Nevertheless, standards for safeguarding human health were to be compulsory standards; this included any standards on food safety, regardless of their position in the standards hierarchy. The Law provided that ‘The local standards formulated by standardization administrative departments of provinces, autonomous regions and municipalities directly under the Central Government for the safety and sanitary requirements of industrial products shall be compulsory standards within their respective administrative areas’.58 The normative force of a standard thus could be correlated with the author of the standard, or the subject matter, or its administrative reach. Each standard was given a code, and the code indicated whether the standard was legally binding or not. There did not seem to be a central review of the implementation or efficacy of stan- dards. Instead, the departments that formulated the standards were required to make ‘timely reviews’ of standards and determine whether they should remain in place, be revised or be annulled.59 Standards were to be formulated to help promote foreign cooperation and trade.60 Not surprisingly, the State was to encourage ‘the active adoption’ of international standards.61 However, the Standardization Law did not convey any further ideas about relations between domestic standards and interna- tional standards. Sanctions for failure to comply with standards were not clearly defined. Compulsory standards were to be complied with; production, sale or import of non-complying products was prohibited. The State was to encourage compli- ance with voluntary standards ‘on a voluntary basis’.62 Non-compliance with compulsory standards was to be ‘dealt with according to law by the competent administrative authorities as prescribed by the laws and administrative rules and regulations’.63 Absent such prescriptions, non-compliance was to be dealt with by confiscation of the products and concurrent fine by the administrative authorities for industry and commerce.64 If there were serious consequences constituting a crime, non-compliance could be dealt with under the Criminal Law.65 The Standardization Law also prescribed penalties for administrative
57 Xiao, ‘Standardization’, supra note 37, at 510. 58 Standardization Law, Article 7. 59 Ibid., Article 13. 60 Ibid., Article 11. 61 Ibid., Article 4. 62 Ibid., Article 14. 63 Ibid., Article 20. 64 Ibid., Article 20. 65 Ibid., Article 20.
The 1990 Standardization Law Implementing Regulations Implementing Regulations for the Standardization Law were adopted on 6 April 1990.67 They followed essentially the same pattern as the Standardization Law but provided greater detail regarding administrative division of labour, relation between domestic and international standards, and sanctions for non- compliance. Standardisation work was to be included in national plans for economic and social development at different levels of government.68 The State was to encourage adoption of ‘international standards and advanced standards abroad’ and play an active role in the development of international standards.69 In other words, this provision mandated the Chinese authorities to look either to international standards or to the standards of wealthier, more technologically advanced countries, in particular the United States and west- ern Europe. At the time there was an earlier version of tbt Agreement, which had been adopted in 1979 [in force 1980] at the Tokyo Round of multilateral trade negotiations, but the sps Agreement was adopted only when the wto was established in 1994. In any event, the People’s Republic of China did not then belong to the gatt, since Taiwan withdrew China’s original membership after the foundation of the People’s Republic.70 The People’s Republic of China became a wto Member only on 11 December 2001. The competent administrative body under the State Council was to exercise unified leadership over standardization work throughout the county. In terms of the Standardization Law, this provision referred to aqsiq. In particular, it was to be responsible, among other things, for organizing the implementation of standards and conducting supervision and inspection on implementation
66 Ibid., Article 24. 67 Regulations for the Implementation of the Standardization Law of the People’s Republic of China (promulgated by Decree No. 53 of the State Council of the People’s Republic of China on April 6, 1990 and effective as of the date of promulgation), available on the website of the Shandong Bureau of Quality and Technical Supervision, http://www.12365 .sd.cn/eweb/laws1-4/law1_2.html, accessed 13 April 2012 (hereafter Standardization Law Implementing Regulations). 68 Ibid., Article 3. 69 Ibid., Article 4. 70 See Yang Guohua and Cheng Jin, ‘The Process of China’s Accession to the wto’, Journal of International Economic Law, 4, 2, 2001, pp. 297–328.
71 Standardization Law Implementing Regulations, supra note 67, Articles 6(5), (6). 72 Ibid., Article 7. 73 Ibid., Articles 8, 9. 74 ‘Main Bodies of the Chinese Standardization System’, available at http://quality -partnerships.cn/standards-2/main-bodies-of-the-chinese-standardization- system/?lang=fr, last accessed 28 January 2015; American National Standards Institute (ansi), Standards Portal, ‘prc Standards System: Key Organizations’, available at http:// www.standardsportal.org/usa_en/prc_standards_system/key_organizations.aspx, last accessed 28 January 2015. 75 Standardization Law Implementing Regulation, supra note 67, Articles 11, 12. 76 Ibid., Article 11(2). 77 Ibid., Articles 13, 14. 78 Ibid., Articles 14, 15. 79 Ibid., Article 17. 80 Ibid., Article 18(1).
81 Ibid., Article 18(2). 82 Administration Statute for New Resources Food Hygiene, promulgated by Ministry of Health on 28 July 1990, available at http://www.foodmate.net/law/shipin/1633.html, accessed 2 March 2, 2015. 83 Standardization Law Implementing Regulations, supra note 67, Article 25. 84 On the example of trade between China and Europe, see Hu Yuanxing, Legal and Policy Issues of the Trade and Economic Relations between China and the eec: A Comparative Study (Kluwer Law and Taxation Publishers, Deventer and Boston, 1991). 85 Standardization Law Implementing Regulations, supra note 67, Articles 28, 29. 86 Ibid., Article 32(5). 87 Agriculture Law of the People’s Republic of China (Adopted at the Second Meeting of the Standing Committee of the Eighth National People’s Congress on July 2, 1993, promul- gated by Order No. 6 of the President of the People’s Republic of China on July 2, 1993, and effective as of July 2, 1993), Article 34. 88 In 1990 this may have been a substantial penalty, but today it is derisory.
Those who have suffered damages have the right to claim compensation from the persons held responsible. Damages liabilities and disputes over the amount of compensation may be dealt with by the relevant adminis- trative authorities and the litigants may also directly file a suit with a people’s court. (Article 38)
Although the injured party is deemed to have ‘the right to claim compensa- tion’, these provisions contain the word ‘may’, not the word ‘shall’, with regard to intervention by administrative authorities and also with regard to recourse to courts. It may be going too far to emphasise the fact that the provision, at least in English translation, refers to a ‘right to claim’ rather than to a ‘right to obtain’ compensation.
The 2001 Measures for the Administration of Adoption of International Standards On the basis of the 1984 Administrative Statute for Adopting International Standards, the State Council promulgated the same year a Report on Accelerating to Adopt the International Standards, which had been presented by the State Economic and Trade Commission.92 Its impact, as summarized by Mu Rongping and Wu Zhuoliang, was that ‘China insists on the doubly adopting
89 Standardization Law Implementing Regulation, supra note 67, Article 33, paragraph 1. 90 Ibid., Article 33, paragraph 2. 91 Ibid., Article 34. 92 Report on Accelerating to Adopt the International Standards, promulgated by General Office of the State Council on 25 February 1987, available at http://www.law-lib.com/ lawhtm/1987/4148.htm, accessed 2 March 2015. See Rongping and Wu, ‘Rise’, supra note 34, p. 4.
93 Ibid., p. 4. 94 Measures for the Administration of Adoption of International Standards and Advanced Foreign Standards promulgated by the former State Bureau of Technology Supervision on Dec. 13, 1992. 95 I am grateful to Lu Yi for summarizing these Measures. 96 China-us Agreement on China’s wto Accession, available at http://www.chinability .com/WTO.htm, last accessed 17 December 2014. 97 The Sino-eu Agreement on China’s Accession to the wto: Results of the Bilateral Negotiations, available at http://trade.ec.europa.eu/doclib/docs/2003/April/tradoc _111851.pdf, last accessed on 17 December 2014; also available in Snyder, Basic Documents, supra Chapter 2 note 123, pp. 1061–1064. 98 Measures for the Administration of Adoption of International Standards, promulgated 12 April 2001, effect as of 12 April 2001 (hereafter Measures on International Standards). 99 Ibid., Article 1.
transforming, identically or after modification, the international stan- dards into the standards of China (including national standards, indus- trial standards, local standards and enterprise standards)…after analysis, research, testing and verification, examining and approving, and promul- gating the standards according to the procedures of examination and approval, and promulgation of the standards of China. (Article 2)
This represented a relatively free, broad interpretation of ‘adoption‘, which enabled international standards to be translated with a great deal of discretion into the Chinese legal system, legal culture, institutional arrangements, and normative categories and terminology, giving them ‘Chinese characteristics’ while maintaining a link with the transnational normative repertoire of stan- dards for food safety and other matters. International standards’ were defined to mean ‘the standards formulated by the International Standardization Organization (iso), the International Electrotechnical Commission (iec) and the International Telecommunications Union (itu) and the standards formu- lated by other international organizations that are confirmed and promulgated by the iso’.102 It may be surprising that this definition does not refer specifi- cally to other international standards bodies mentioned in the sps and tbt
100 Ibid., Article 22. 101 I am grateful to Lu Yi for this comparison. 102 Measures on International Standards, supra note 98, Article 3.
Agreements, notably the Codex Alimentarius Commission in Rome, particu- larly because the Chinese government, including aqsiq, was well-aware of its wto commitments according to these Agreements. However, I speculate that at the time the Chinese government was concerned mainly with industrial standards, consistently with the priority given to science and industry in its domestic reforms.103 In addition, it is likely that aqsiq and the Chinese Standardization Administration (sac), not the Ministry of Agriculture or the Ministry of Health, were the dominant institutions in discussions about stan- dardization, and they were concerned mainly with industrial standards. China had long enjoyed membership of the itu, iso and iec. It joined the itu on 1 September 1920.104 China was a founding member of iso in 1947, and indeed a Council member from 1947 to 1949; it has been a member since 1947 till the present, except for the period when it was suspended (1951–1953) and the period when it withdrew (1953 to 1978), resuming membership in 1978.105 The sac represented China in the itu, the iso and the iec, and it orga- nized the Chinese national committees for the itu and iso.106 These transna- tional links informed the development of Chinese industrial standards. In contrast, China joined the main food safety standards organization, the Codex Alimentarius Commission, only in 1984.107 China’s first Food Hygiene Law was enacted only in 1994, and the first Food Safety Law only in 2009. Codex stan- dards were relatively unknown and politically uncontroversial before the ec – Hormones case in 1998.108 Nevertheless, whether or not Codex standards are regarded as being confirmed and promulgated by iso, the Measures themselves invite us to interpret them broadly and with a teleological method. From this standpoint, it would appear that the Measures would apply to food safety standards and other related standards, such as labelling requirements, which under wto law are governed by the sps Agreement and the tbt Agreement, respectively. A brief analysis of the Measures is therefore essential if we are to
103 On China’s participation in iso, iec and itu as of 2008, see Scott Kennedy et al., ‘Stakeholders’, supra note 37, at 26–32. 104 International Telecommunications Union, ‘itu Global Directory’, available at http://www.itu.int/online/mm/scripts/mm.list?_search=ITUstates&_languageid=1, last accessed 17 December 2014. 105 International Standardization Organization, ‘Historical record of iso membership since its creation (1947)’, available at http://www.iso.org/iso/iso_membership_1947_to_2013.pdf, last accessed 17 December 2014. 106 Wikipedia, ‘Standardization Administration of China’, available at http://en.wikipedia .org/wiki/Standardization_Administration_of_China, last accessed 17 December 2014. 107 Codex Alimentarius, ‘List of Codex members’, available at http://www.codexalimentarius .org/members-observers/members/, last accessed 17 December 2014. 108 ec – Hormones, Panel Report, supra note 7 ec – Hormones, ab Report, supra note 14.
there are technical differences with the international standards, and those differences and the reasons thereof are clearly indicated, and editing modifications are allowed. Modified adoption shall not include the circumstances that only a few or unimportant terms of the international
109 Measures on International Standards, supra note 98, Article 4. 110 Ibid., Article 5. These exceptions echo the justifications provided in Article 2.4 of the tbt Agreement for the adoption of national legislation (technical regulations) which are not based on international standards. 111 Ibid., Article 6. 112 Ibid., Article 8. 113 Ibid., Article 11. 114 Ibid., Article 12, paragraph 20.
standards are reserved. Where the text structure of the standards of China shall be corresponding to that of the international standards in modifica- tion adoption, it is allowed to change the text structure only if the change will not affect the comparison with the contents and text structure of the international standards.115
Standards of identical adoption were to be coded idt, while standards of mod- ified adoption were to be coded mod; these coding methods were to comply with Part 2 of the Guidance of Standardization Work, Rules on Adoption of International Standards (GB/T200000.2).116 In addition to these two main types of adoption, relations between Chinese standards and international standards could include a third category, described as ‘not equivalent, which doesn’t fall into the adoption of interna- tional standards, but only shows that there is corresponding relation between the standard of China and the corresponding [international] standard’,117 for example that the two dealt with the same subject matter but without any bor- rowing of contents or text structure. ‘Not equivalent’ meant ‘being different with the corresponding international standard in the technical contents and text structure, but the differences between them are not clearly indicated’, and it could also include ‘the circumstance the [sic] only a few or unimportant terms of international standards are reserved [i.e. preserved] in the standards of China’.118 A specific code was given to each type of standard: idt for stan- dards of equivalent adoption,119 mod for standards of modified adoption120 and neq for Chinese standards which were not equivalent to international standards.121
The 2002 Notice on International Standards In 2002 eight administrative organizations concerned with standardization adopted a Notice on Issuing ‘Some Opinions on Promoting the Adoption of International Standards’.122 The organizations were Ministry of Finance, the
115 Ibid., Article 12, paragraph 3. 116 Ibid., Article 13. 117 Ibid., Article 17, paragraph 1. 118 Ibid., Article 17, paragraph 2. 119 Ibid., Article 13, paragraph 1. 120 Ibid., Article 13, paragraph 1. 121 Ibid., Article 17, paragraph 3. 122 Notice on Issuing ‘Some Opinions on Promoting the Adoption of International Standards’, issued 23 July 2002, effective as of 23 July 2002 (hereafter Notice on International Standards).
Ministry of Foreign Trade and Economic Cooperation (moftec, including the former Ministry of Foreign Economic Relations and Trade (mofert); now Ministry of Commerce, moc), the Ministry of Science and Technology, the National Standardization Technical Committee, the State Administration of Quality Supervision, Inspection and Quarantine (aqsiq), the National Development and Reform Commission (including the former State Develop ment Planning Commission and the former State Economic and Trade Commission). The Opinions were addressed to all relevant bureaus, commis- sions and departments within these organizations of all provinces, autono- mous regions, municipalities directly under the Central Government and cities directly under state planning, and all relevant departments under the State Council. Their purpose was to promote the simultaneous development of technical and technological progress and the adoption of standards, notably international standards, as part of China’s reform and opening up and rela- tions with international practices. Governments at all levels were advised to combine the adoption of standards with relevant technical and economic poli- cies and planning.123 Enterprises were to combine the adoption of standards with technical innovations and introduction of new technology.124 Both public institutions and enterprises, whether public or private, were actively to adopt international standards and overseas advanced standards.125 The State was to encourage such policies and also, in particular, for public institutions and enterprises ‘to finally form their own technical standards with independent intellectual property through the study, and then try to form international standards’.126 All administrative departments for standardiza- tion at all levels were to encourage the adoption of international standards and also to recommend the best Chinese standards as ‘the draft of international standards, and try to make them promulgated as international standards’.127 The Notice therefore set forth the basic policies which continue to character- ize Chinese standards-making institutions. These policies are, first, adopting international standards or advanced overseas standards as part of the develop- ment of new technology; second, developing Chinese standards in which the Chinese government, soes or other organizations owned the intellectual prop- erty rights; and, third, participating actively in international standards bodies
123 Ibid., paragraph I. 124 Ibid., paragraph ii. 125 Ibid., paragraph iii. 126 Ibid., paragraph iii. 127 Ibid., paragraph vii.
Regulatory Reforms after Melamine
Food Safety Standards on the Eve of 2009 In general, the normative framework for food standards before 2009 differed little from that for other kinds of standards.128 The four levels of standards, comprising national, professional, local and enterprise standards, were applied to food. National standards were supervised by the Standardisation Adminis tration of China (sac), which assigned responsibility for professional stan- dards to relevant ministries. Food standards could be mandatory or voluntary. These three features – a multiplicity of standards-making authorities, different levels of standards and differences in normative force – combined to produce a complex standardization system. Table 4.1 shows the codes, content and responsible administrative bodies for different types of standards before 2009. It is not surprising that fragmentation of administrative responsibility and duplication of standards were major problems. In contrast to certain scientific and technological standards, food safety standards were very weakly aligned with international standards.129
The 2009 Food Safety Law and Standards Stimulated by the melamine crisis, the 2009 Food Safety Law was intended to provide a new, more far-reaching legislative framework for food safety stan- dards. In 2005 the sac had promulgated a Plan for Developing Food Standards, which it prepared in conjunction with various concerned minis- tries and industrial associations.130 Unfortunately the Plan was concerned mainly with technical matters regarding standards, not with underlying
128 Xiao, ‘Standardization’, supra note 37, at 511. The following paragraphs are based mainly on this article. 129 See Chapter 8 of the book. 130 Sina News,《全国食品标准 2004–2005 年发展计划》已印发宣告 [Plan for Developing Food Standards 2004–2005 Has Been Printed and Announced] [available only in Chinese], 8 December 2004, available at http://news.sina.com.cn/o/2004-12-08/09144465913s.shtml, last accessed 9 March 9, 2015: Plan for Developing Food Standards 2004–2005, prepared by the National Development and Reform Commission, the MoA, the Ministry of Commerce, the MoH, aqsiq, the State Food and Drug Administration, China National Light Industry Council and China General Chamber of Commerce, and promulgated in 2005.
Table 4.1 Codes, content and formulating bodies for food standards before 2009
Codes Content Competent formulating bodies
National standards for food gb Compulsory National Standards sac GB/T Recommendatory National Standards sac GB/Z National Standardisation Guiding sac Technical Documents Professional standards for food (non-exhaustive) ny Compulsory General Agricultural MoA Standards NY/T Recommendatory General Agricultural MoA Standards hi Compulsory Environmental Protection mep Standards HI/T Recommendatory mep sc Compulsory Aquatic Product Standards MoA SC/Y Recommendatory Aquatic Product MoA Standards wm Compulsory Foreign Trade Standards MoA WM/T Recommendatory Foreign Trade Standards MoA ws Compulsory Hygiene Standards MoH WS/T Recommendatory Hygiene Standards MoH Local standards for food db Compulsory Local Standards Relevant Provincial- Level Departments DB/T Recommendatory Local Standards Relevant Provincial- Level Departments Enterprise standards for food
O Compulsory Enterprise Standards for Food Food Companies
Source: Pinghui Xiao, ‘China’s Food Standardization System, Its Reform and Remaining Challenges’, European Journal of Risk Regulation, 4, 2012, 507–520, at 508: Table 2: Categorization and Codification of Chinese Food Standardization
(1) The limits of pathogenic microorganisms, pesticide residues, veterinary drug residues, heavy metals, contaminants, and other substances hazardous to human health in food and food-related products (2) Varieties, scope of application, and dose of food additives; (3) Requirements for nutritional ingredients in staple and sup- plementary food dedicated to babies and other specific populations; (4) Requirements for labeling, identification and instructions rel- evant to food safety and nutrition; (5) Hygienic requirements for food production and trading processes; (6) Quality requirements related to food safety; (7) Methods and procedures for food testing; and (8) Other particulars necessary for developing food safety standards.134
The Law thus specified the possible substantive scope of standards,135 including the limits of contaminants and other hazardous substances,136 the
131 Xiao, ‘Standardization’, supra note 37, at 514. 132 2009 Food Safety Law, supra Chapter 3 note 5, Article 18. 133 Ibid., Article 19. 134 Ibid., Article 20. 135 Ibid., Article 20. 136 Ibid., Article 20(1).
137 Ibid., Article 20(2). 138 Ibid., Article 20(6). 139 Ibid., Article 21, paragraph 1. 140 Ibid., Article 21, paragraph 4. 141 Ibid., Article 22, paragraph 1. 142 Ibid., Article 22, paragraph 2. 143 Ibid., Article 23, paragraph 1. 144 Notice on Establishment of National Food Safety Standards Review Commission, promul- gated by Ministry of Health on 19 January 2010, available at http://www.moh.gov.cn/mohbgt/ s9976/201001/45687.shtml, accessed 2 March 2, 2015. See also Regulations for National Food Safety Standards Review Commission, promulgated by Ministry of Health on 9 February 2010, available at http://www.foodmate.net/law/shipin/164234.html, accessed 2 March 2015. 145 Xiao, ‘Standardization’, supra note 37, at 514–515. For a list of professional standards in all fields, see Code of China, Standards, Professional Classification, available at http://www .codeofchina.com/professional/default.html, last accessed 28 January 2015.
The formation of national food safety standards
shall base [sic] on the results of food safety risk assessments and take full account of the results of quality and safety risk assessments for edible agricultural products, shall reference to the relevant international stan- dards and the results of international food safety risk assessments, and shall solicit extensively the opinions from food producers, traders and consumers.146
Note that this does not require that national standards be based on interna- tional standards. The orientation toward international standards is phrased in very diplomatic terms, resembling the eu 2002 Food Law which, in language borrowed from the tbt Agreement, provides that:
Where international standards exist or their completion is imminent, they shall be taken into consideration in the development or adaptation of food law, except where such standards or relevant parts would be an ineffective or inappropriate means for the fulfilment of the legitimate objectives of food law or where there is a scientific justification, or where they would result in a different level of protection from the one deter- mined as appropriate in the Community.147
The 2009 Food Safety Law does require, however, that national standards should be based on a risk assessment, as required by the wto sps Agreement as a justification for a country’s standards which are not based on international standards. If there is no national standard, a local standard may be developed by the executive departments of people’s governments at provincial, autonomous region and municipal levels; this is to be done with reference to the formula- tion of national standards, and local standards are to be reported for the record to the national Ministry of Health.148 If neither a national nor a local standard exists, a food enterprise may develop an enterprise standard. According to the Law, the State encourages food enterprises to develop enterprise stan- dards which are more stringent than national or local standards. An enterprise
146 2009 Food Safety Law, supra Chapter 3 note 5, Article 23, paragraph 2 [emphasis added: fs]. 147 eu General Food Law, supra Chapter 3 note 345. 148 2009 Food Safety Law, supra Chapter 3 note 5, Article 24.
149 Ibid., Article 25. 150 Ibid., Article 19, provides that ‘Food safety standards are mandatory’. The Article is at the beginning of Chapter 3 on Food Safety Standards and logically this general provision would appear to apply to the remainder of the entire Chapter. In addition, Article 19 refers to ‘food safety standards’ in general and does not distinguish between standards adopted by different authors (national, local or enterprise). 151 Ibid., Article 27. 152 Ibid., Article 62. 153 Ibid., Article 63. 154 For further discussion of legal liability with regard to food safety, see the chapter on the emergence of modern Chinese food safety law. 155 2009 Food Safety Law, supra Chapter 3 note 5, Article 85. 156 Ibid., Article 85(2). The quotation is from the usda translation. 157 Ibid., Article 89, paragraph 1(1).
The 2009 Food Safety Law Implementing Regulation On 20 July 2009, the State Council promulgated an Implementing Regulation for the Food Safety Law.160 It amplifies and develops the basic provisions of the Food Safety Law. No provision mentions international standards; this seems to be left to the Standardization Law and its implementing Regulation and Measures. Here I focus on selected issues concerning institutions and standards. At national level the Ministry of Public Health is the lead actor, for example in providing a scientific basis for formulating or revising national standards161 or identifying new potential food safety hazards.162 In general, coordination of food safety supervision and management is allocated to the people’s govern- ments at or above county level.163 Public health departments are responsible for notifying enterprise standards to other administrative departments at the same level of government.164 They are also responsible, at different levels of government including national level, for tracking evaluation of the implemen- tation of national standards and local standards and of organizing their revi- sion together with other administrative departments at the same level (agriculture administration, quality supervision, industrial and commercial enterprise management, food and drug supervision and administration, com- merce, industry and information).165 Though increasing the power of the Ministry of Health, the Implementing Regulation follows the basic pattern of divided or fragmented horizontal responsibility set out in the 2009 Food Safety Law. The state food safety risk monitoring plan is to be formulated by the Ministry of Public Health together with other departments, namely those in charge of supervision and control over product quality, industrial and commercial administration, food and drug
158 Ibid., Article 89, paragraph 1(2). 159 Ibid., Article 89, paragraph 1(3). 160 Regulation on the Implementation of the Food Safety Law of the People’s Republic of China (Decree of the State Council of the People’s Republic of China, No. 557, adopted at the 73rd State Council executive meeting on July 8, 2009, promulgated on 20 July 2009, effective as of 20 July 2009) (hereafter 2009 Food Safety Law Implementing Regulation). 161 Ibid., Article 12(2). 162 Ibid., Article 12(3). 163 Ibid., Article 2. 164 Ibid., Article 18. 165 Ibid, Article 19, paragraph 1.
The 2010 Administrative Measures for National Food Safety Standards In early 2010 the Ministry of Health adopted Administrative Measures for National Food Safety Standards.172 Based on the new Food Safety Law, the Measures provided a detailed legal framework for regulating the formulation and revision of national food safety standards.173 Standards were to aim to pro- tect public health and were to be based on risk assessment.174 The Ministry of Health was responsible for the formation and revision of food safety standards, on the basis of drafts and advisory opinions provided by a Review Committee for National Food Safety Standards set up by the Ministry and consisting of professional sub-committees and a Secretariat.175 The Ministry of Health was to formulate planning for standards and their implementation together with the Agriculture Ministry, aqsiq, industry and commerce administra- tive department, state food and drug administrative department, commerce
166 Ibid., Article 5. 167 Ibid., Article 15. 168 Ibid., Article 17. On the Committee, see Chenhao Jia and David Jukes, ‘The National Food Safety Control System of China: A Systematic Review’, Food Control, 32, 2013, pp. 236–245 at 239. 169 2009 Food Safety Law Implementing Regulation, supra note 160, Article 63. 170 See the chapter on the emergence of modern Chinese food safety law. 171 2009 Food Safety Law Implementing Regulation, supra note 160, Article 40. 172 Administrative Measures for National Food Safety Standards (adopted at the executive meeting of the Ministry of Health on 20 September 2010, promulgated on 20 October 2010, effective as of 1 December 2010) (hereafter 2010 Measures for National Food Safety Standards). 173 Ibid., Article 1. 174 Ibid., Article 2. 175 Ibid., Article 3.
The drafting of national food safety standards shall be based on the results of the food safety risk assessment and risk assessment results of the quality and safety of edible agricultural products, give full consider- ation to China’s social and economic development and needs of [sic] actualities, and consult relevant international standards and results of the international food safety risk assessment.180
Drafts of national food safety standards were required to be submitted to the wto ‘in accordance with relevant procedures’.181 The wto sps Agreement requires wto Members to notify other Members of national standards which are not substantially the same as international standards and which may have a significant effect on trade.182 Notifications to the wto Secretariat must be in English, French or Spanish,183 but the Chinese Government is entitled to pro- vide particulars or copies of drafts requested by other wto Members, or to publish the text, in Chinese.184 Only the Ministry of Health, among Chinese organizations, has the power to interpret national food safety standards; these interpretations are to take the form of Ministry of Health documents and they have the same effect as national food safety standards.185 The formulation and the revision of local standards are to be done by procedures analogous to those applying to national standards.186
176 Ibid., Article 6. 177 Ibid., Articles 4, 6–37. 178 Ibid., Article 14. 179 Ibid., Article 16. 180 Ibid., Article 17. 181 Ibid., Article 31. 182 sps Agreement, supra note 4, Article 5 and Annex B. 183 Ibid., Article 5 and Annex B. 184 Ibid., Article 11(a) and Annex B. 185 2010 Measures for National Food Safety Standards, supra note 172, Article 34. 186 Ibid., Article 41.
Politics of Dairy Standards
Two Dilemmas The setting of standards may appear so far to be simply the legal expression of scientific opinion. From this perspective, standards-setting might seem to be devoid of politics. Frequently, however, this is very far from being the case.187 Standards are double-edged: they protect public health and safety, and they determine market entry. Hence they have a direct impact on trade, investment and profit. Consequently, standards-setting almost inevitably involves politics. One frequently controversial aspect of this process is the very decision to embark on setting a new standard or revising an old one. Another often contested aspect refers to the fact that, standards-setting today requires the analysis of risk, comprising risk assessment, risk management and risk communication.188 Some elements of risk analysis, such as risk assessment, are less political, but others, such as risk management and risk communication, often involve the allocation of values and the distribution of power. This section considers some aspects of the politics of making Chinese dairy standards. From the legal standpoint, it focuses on protein level, bacteria count, detection of melamine and content or maximum level (ml) of melamine in dairy products. In terms of social forces, it emphasizes the role of major dairy producers, trade associa- tions and the International Dairy Federation (idf). If we distinguish between detection and content of different substances in milk, we might say detection is (more) scientific, while content is (more) politics. Industry has always played a vital role in setting food safety standards.189 Compared to government, industry usually has more resources and knowl- edge. In addition, standards are targeted at industry, and participation of industry in standards-making is likely to facilitate implementation of the stan- dards. Reflexive regulation, in which government and industry together make
187 See for example John Braithwaite and Peter Drahos, Global Business Regulation (Cambridge University Press, Cambridge, 2000) (hereafter Braithwaite and Drahos, Regulation); Schepel, Private Governance, supra note 3; Walter Mattli and Tim Bűthe, ‘Setting International Standards: Technological Rationality or Primacy of Power?’ World Politics, 56, 1, October 2003, pp. 1–42. 188 The literature on risk analysis is immense. A recent overview of risk analysis for food safety may be found in Margaret E. Coleman and Harry M. Marks, ‘Risk Analysis Frameworks for Chemical and Microbial Hazards’, in Ronald H. Schmidt and Gary E. Rodrick (eds), Food Safety Handbook (Wiley-Interscience, Hoboken, nj, 2003), pp. 19–46. 189 See Braithwaite and Drahos, Regulation, supra note 187.
Small Workshops, Standards and Factions Consolidation of the dairy sector was a very important part of central govern- ment policy. As Pei et al point out, ‘[t]he guiding logic of regulatory control in China has been that of supporting concentration within the dairy sector under the assumption that major enterprises would install high-quality assurance systems stretching back to their supplies, hence also the producers…’191 The same logic was followed by the leading municipal governments. Beijing, for example, encouraged dairy companies to move into Daxing District south of
190 For a theoretical overview, see Gunther Teubner, ‘After Legal Instrumentalism? Strategic Models of Post-Regulatory Law’, in Colin Scott (ed), Regulation (Ashgate Publishing Company and Dartmouth Publishing Company, Aldershot, England, 2003), pp. 49–74. 191 Pei et al., supra Chapter 2 note 294, at 417.
Small food workshops and food vendors that engage in food production and trading activities shall comply with the food safety requirements of the Law suitable for their production or trading scale and conditions [so as to] ensure that the food being produced or traded are clean, nontoxic and harmless. The relevant authorities shall strengthen the supervision and management over these individuals. Detailed management mea- sures shall be developed in accordance with the Law by the standing committees of the People’s Congress at the provincial, autonomous region, and municipal levels.194
Small workshops were gradually to be brought within the ambit of food safety standards. However, if they could not eventually meet the new Ministry of Health standards for milk and milk products, they were destined to disappear.195
192 北京市人民政府办公厅关于印发北京市食品安全行动计划 (2011–2015 年) 及重点 工作任务分解方案的通知 (京政办发)【2011】43, summarized in Tang Yun, ‘Local Standards for Food Safety’, Research report for the Research Project on Food Safety Law (Director: Professor Francis Snyder), Peking University School of Transnational Law, Peking University Shenzhen Graduate School, 2012 (copy on file with the author: fs) (hereafter Tang Yun, ‘Local Standards’). I am grateful to Tang Yun for the summary of this article. 193 Tang Yun, ‘Local Standards for Food Safety’, supra note 192. 194 2009 Food Safety Law, supra Chapter 3 note 5, Article 29, paragraph 2. The text quoted here is from the translation provided by usda Foreign Agricultural Service. The translation provided by China Law Info states, in relevant part, that ‘To engage in food production or business operation, a small food production or processing workshop or a food vendor shall meet the food safety requirement of this Law, namely adapting to its production or business operation scale and content, so as to ensure that the food which it (he) produces or operates is hygienic, non-toxic and innocuous’. 195 In June 2014 WantChina Times (Taiwan) reported that the Chinese Ministry of Industry and Information announced a proposal to consolidate and reorganize baby formula pro- ducers. The proposal was to create 10 large dairy conglomerates accounting for 65% of the domestic market by 2015, and to form three to five very large conglomerates (revenue:
Standards for milk and dairy products necessarily affected market entry, and for small producers, market entry meant survival. The setting of dairy standards after the melamine crisis was therefore highly political. It involved individual companies, trade associations, the world’s lead- ing exporter of dairy products and the major international dairy association. China’s three largest dairy producers and the main dairy trade associations were reported to have been instrumental in determining the new standards. According to Zeng Shouying, Deputy Director of the Dairy Industry Committee of the Dairy Association of China, Yili, Mengniu and Bright Dairy took charge of revising the standards for pasteurized milk, raw milk and yoghurt, respec- tively.196 China Daily, the leading cpc newspaper, reported that the three com- panies had amended government proposals to increase the permitted limit for bacteria in raw milk, though the companies tried to justify or even deny this. Critics accused the companies of ‘milking’ the new standards for their own benefit.197 According to China Daily,
Yili Industrial Group admitted the standards drafting along with other dairy companies. But it also claimed that the draft was just for discussion before being submitted to the authoritative departments and experts group for further comments…. Mengniu Dairy said they just proposed a suggestion and do not have the final decision. Another major dairy Bright Dairy has not responded.198
rmb 5 bn each), with the top ten firms having more than 80% market share by 2018. The enterprises would include large foreign firms, such as Nestle: Staff Reporter, ‘Nestle makes China Dairy Associations “national team” list’, Business/Policy, WantChina Times (Taiwan), 19 June 2014, available at http://www.wantchinatimes.com/news-subclass-cnt.aspx?id =20140619000004&cid=1201, last accessed 22 December 2014. On the broader context of this policy, see Oliver Balch, The Guardian, ‘China’s growing hunger for dairy raises fears over sustainable production’, The Guardian (London), Friday 30 May 2014, available at http://www.theguardian.com/sustainable-business/china-dairy-cows-sustainable-farming -production-asia, last accessed 22 December 2014. 196 Hu Yue, ‘Questioning the Standard: Dairy quality standards trigger further controversy’, Beijing Review, 12 December 2011, available at http://www.bjreview.com/Cover_Stories _Series_2012/2011-12/12/content_442486.htm, last accessed 23 December 2014. 197 The preceding sentences are based on Zhou Chenyan, ‘Dairies deny milking new safety standards’, China Daily, 29 November 2011 available at http://chinadaily.com.cn, accessed 3 May 2012. 198 Ibid.,
These disparate reports in cpc newspapers converge in indicating that major dairy companies played a decisive role in shaping government policy and stan- dards regarding consolidation of the diary sector. The large dairy companies were divided into two factions. In turn, each fac- tion was supported by a different trade association.199 The trade associations in turn were led by different ministries and ministry-level organisations, which in turn belonged to different xitong.200 The factional cleavage regarding dairy standards thus appeared to run from dairy product enterprises, which also rep- resented their supplier-producers, to trade associations, to ministries and ministry-level organisations, to xitong.201 I speculate that, in fact, the trade associations were neither independent of the state nor captured by the state but instead were embedded in state agencies.202 Mengniu and Yili, both based in Mongolia, led the so-called ‘Base-Type Dairy’ faction. They purchased raw milk mainly from small producers. The Base-Type Dairy Faction was supported by the Dairy Association of China, which was led by the Ministry of Agriculture.203 I speculate that their main
199 On trade associations in China at this time, see Yuwen Li, ‘A Critical Examination of the Legal Environment for Social Organisations in China’, in Yuwen Li (ed), Freedom of Association in China and Europe: Comparative Perspectives in Law and Practice (Martinus Nifhoff, Leiden, 2005), pp. 38–43. 200 I deduce this from Lieberthal, Governing, supra Chapter 2 note 207, pp. 227–229; Huang, Health, supra Chapter 2 note 260, p. 18; Zheng, Organizational Emperor, supra Chapter 2 note 211, pp. 109–110; and Victor C. Shih, Factions and Finance in China (Cambridge University Press, Cambridge, 2008), pp. 47–58. 201 Note that Lucien Pye, writing in 1968, cautioned (at 218–222) that factions are rarely con- nected with bureaucratic interests. The first edition of the book was published in 1968, but the author (see p viii) did not revise this section in the new edition. See Lucien W. Pye, The Spirit of Chinese Politics (Harvard University Press, Cambridge, ma, first published 1968, new edition 1992). 202 Here I apply to the dairy sector the argument made by Kenneth W. Foster, ‘Embedded within State Agencies: Business Associations in Yantai’, The China Journal, 47, January 2002, pp. 41–65. 203 The preceding account is based on Chong Qi, ‘Analysis of Current Chinese Food Safety Situations and the Underlying Reasons Involved by Taking Milk Products as an Illustration’, Research paper written in the framework of the jd course on wto Law and China and the Food Safety Research Project (Director: Professor Francis Snyder), Peking University School of Transnational Law, Peking University Shenzhen Graduate School, Shenzhen, December 2012, and on Xinhua News Agency ‘乳业“国标”倒退并非第一次 利益之争 从未停止’ [Moving national standards of milk products backwards is not the first time, the battle for profits has never been stopped], Yangcheng Evening News, 7 July 2011,
available at http://news.xinhuanet.com/food/201107/07/c_121635703_2.htm, last accessed 22 February 2015. These documents are on file with the author. 204 For the eu example, see Francis G. Snyder, Law of the Common Agricultural Policy (Sweet & Maxwell, London, 1985), passim. (hereafter Snyder, cap Law). 205 Ironically, Ms Tian Wenhua had previously been Deputy Chairman of the cdia: See Wikipedia, ‘Sanlu Group’, available at http://en.wikipedia.org/wiki/Sanlu_Group, last accessed 23 December 2014. 206 Food and Beverage Online, ‘China Dairy Industry Association’, Company Info, available at http://www.21food.com/showroom/195518/aboutus/china-dairy-industry-association .html, last accessed 27 January 2015. 207 Scott Kennedy, The Business of Lobbying in China (Harvard University Press, Cambridge, ma, 2005), p. 34. 208 Moore, World Market, supra Chapter 2 note 365, p. 146. 209 See China National Light Industry Council, ‘代管协学会’ [Associations/societies/ institutions being Governed], available at http://cnlic.clii.com.cn/footers/footer-dgxxh .html, last accessed 22 February 2015.
Reform Commission (ndrc).210 I speculate that the administrative supporters of the cdia shared the cdia perspective that consolidation was the best way to obtain higher dairy standards and promote product quality. In this case, the cleavage between factions was reinforced by a regional cleavage between north-central China on one hand and east coastal regions of China on the other. The ‘Base-Type Dairy’ faction embraced north-central enterprises such as Mengniu and Yili, both based in Inner Mongolia. The ‘City Dairy’ faction encompassed coastal enterprises, notably Bright Dairy based in Shanghai, and was supported by the Guangzhou Dairy Association. It has been argued that regional inequality was both a cause and an effect of the polariza- tion between the two factions. According to this argument, the respective political positions of these two factional lobbies reflected in part the differ- ences in per capita income of their particular regions.211
International Dairy Federation (idf) in China The melamine crisis contributed to greater opening of the Chinese dairy mar- ket to foreign producers and processors; an earlier chapter discussed the re- distribution of market shares.212 On the transnational stage, the leading actor in the dairy sector was the International Dairy Federation (idf). Founded in 1903,213 the idf had been involved in making international standards for dairy products long before the Codex Alimentarius Commission was established. As early as 1939, it made proposals for international conventions on dairy prod- ucts, including methods of analysis of milk powder. These conventions were not adopted because of the outbreak of World War ii, but nevertheless they underpinned future international cooperation efforts.214 Within the Codex Alimentarius, idf was the proposer of the establishment of the current Codex Committee on government experts on the Code of Principles concerning Milk and Milk Products. Today it participates actively in the preparation of Codex
210 Food and Beverage Online, ‘China Dairy Industry Association’, Company Info, available at http://www.21food.com/showroom/195518/aboutus/china-dairy-industry-association .html, last accessed 27 January 2015. 211 A. Sneha, ‘Food Safety Standards & the Dairy Industry in China: Impact of Regional Divide and Income Inequalities’, Indian Institute of Technology Madras, China Studies Centre, iitm csc Special Report No. 1, June 2011, available at http://www.csc.iitm.ac.in/ ?q=node/68, last accessed 23 December 2014. 212 See Chapter 3 of the book. 213 http://www.fil-idf.org/Public/TextFlowPage.php?ID=23084, accessed 4 April 2012. 214 Mariëlle D. Masson-Matthee, The Codex Alimentarius Commission and Its Standards (t.m.c. Asser Press, The Hague, 2007), p. 14 (hereafter Masson-Matthee, Codex).
215 Ibid., p. 16. 216 Th. Kűtzemeier, ‘idf’s Roadmap: Environment, sustainability and nutrition’, [Interview with idf President Richard Doyle], European Dairy Magazine, n.d. [2008], available at http://www.mcongressconsult.com/uploads/media/IDF_Interview.pdf, last accessed 22 December 2014. 217 Fonterra, News and Media, Media Releases, ‘Fonterra Director of Research Elected President of idf’, available at http://www.fonterra.com/au/en/Hub+Sites/News+and +Media/Media+Releases/Fonterra+Director+of+Research+Elected+President+Of+IDF, last accessed 22 December 2014. 218 International Dairy Federation, ‘About Us’, available at http://www.fil-idf.org/Public/ TextFlowPage.php?ID=23084, last accessed 29 January 2015. 219 tusiad China Business Insight, ‘China’s Dairy Industry’, December 2013, http://www .tusiad.org/__rsc/shared/file/ChinaBusinessInsight-December2013.pdf, last accessed 22 December 2014.
Table 4.2 Members of the Chinese idf National Committee
China Dairy Industry Association Tetra Pak China (Kun Shan) http://www.cdia.org.cn/ http://www.tetrapak.com/cn/Pages/ default.aspx Inner Mongolia Mengniu Dairy (Group) Jinan Jiabao Dairy Co.,Ltd C., Ltd. http://www.mengniu.com.cn/ Inner Mongolia Yili Industrial Group Co., Heilongjiang Wan Da Shan Dairy Co., Ltd. Ltd. http://www.yili.com/en/about_yili/ http://www.wondersun.com.cn/ background.shtml Bright Dairy Co. Ltd. Heilongjiang Dairy Group http://en.brightdairy.com/home.php http://www.longdan.com.cn/index.asp# San Lu Group Co., Ltd. Dalian Century Int’l Trading Ltd. (cit) (No website) http://www.century-intl.com/en_web/ htm/index.htm National Engineering Technology vv Food Beverage Co., Ltd Research Center for Dairy Industry http://www.vvgroup.com/ (Website not available) Sichuan New Hope Group Co., Ltd. Guangdong Yashili Group Co., Ltd. http://www.newhopedairy.cn/ http://www.yashili.com/en/index1.aspx Shanxi Gucheng Dairy Co., Ltd Modern Farming (Group) Co., Ltd. http://www.china-gucheng.com/ http://www.xiandaimuye.com/ Beijing San Yuan Food Co., Ltd. Heilongjiang Fei He Dairy llc. http://www.sanyuan.com.cn/# http://ady.feihe.com/index.html Xi’an Yinqiao Biotechnic llc. Beijing Shuanwa llc. http://www.yinqiaogroup.com/ Sheng Yuan Nutrition Food Ltd Company http://www.shengyuan.com/
Source: idf National Committee Member List (China)220
220
220 http://www.cncidf.org.cn/company6_4.asp, accessed 6 April 2012, translated from Chinese by Zhang Kaixiang.
221 For the argument that private standards or public-private partnerships should play an impor- tant role in the Chinese food safety regime, see Chong Qi, ‘Study on the Role of Transnational Private Regulation System in Filling Theoretical Gaps within China’s Official Food Safety System’, Student Thesis (supervised by Professor Francis Snyder), Peking University School of Transnational Law, Peking University Shenzhen Graduate School, March 2013. 222 These points are presented in more detail in Fu Weigang, ‘Safety in numbers is key to improving milk sector’, Global Times, Thursday 3 May 2012, available at http://business .globaltimes.cn/comment/2011-05/651716.htm, accessed 3 May 2012. The author is a researcher at the Shanghai Institute of Finance and Law. 223 ‘Integrated Supply Chain Management’, Bulletin of the International Dairy Federation, 449/2011, available at http://latu30.latu.org.uy/pls/portal/latu_portal.cargo_docum [email protected]&df_nom_campo _blob=objeto&df_nom_campo_nom_documento=tipo_objeto&df_rowid _registro=AAAM0UAAEAAAq9AAAg, accessed 27 April 2012. 224 Codex Principles and Guidelines for the Conduct of Microbiological Risk Assessment (mrm): see ‘Integrated Supply Chain Management’, Bulletin of the International Dairy Federation, 449/2011, available at http://latu30.latu.org.uy/pls/portal/latu_portal.cargo [email protected]&df_nom_campo _blob=objeto&df_nom_campo_nom_documento=tipo_objeto&df_rowid_registro=AAA M0UAAEAAAq9AAAg, p. 3, accessed 27 April 2012. 225 iso 22 000 – Food Safety Management Systems – Requirements for organizations throughout the food chain: see ‘Integrated Supply Chain Management’, Bulletin of the
Though not necessarily requiring that the dairy product chain be consoli- dated or vertically integrated, the icm principles promoted by idf conferred the most responsibility for food safety on dairy product manufacturers. Accordingly the icm principles clearly attributed the most power in the value chain on dairy product manufacturers.226 The role of government was to ‘sup- port cooperation between organizations through activities that encourage participation by companies and sectors’, recognizing haacp based on agree- ments between enterprises and targeting inspections on enterprises which had not undergone third party audits.227 The role of idf was to support the implementation of icm principles, notably by promoting the concept vis-à-vis international private sector organizations.228 The icm principles supported, encouraged and coincided with the gradual restructuring, consolidation and transnationalisation of the dairy industry in China.
International Dairy Federation, 449/2011, available at http://latu30.latu.org.uy/pls/portal/ latu_portal.cargo_docum.Get?df_nom_tabla=bib_objetos_materiales@base.latu.org .uy&df_nom_campo_blob=objeto&df_nom_campo_nom_documento=tipo_objeto&df _rowid_registro=AAAM0UAAEAAAq9AAAg, p. 3, accessed 27 April 2012. 226 For example, the document states that ‘In practical terms, this means that the manufac- turer of the rte food (or ready-for-domestic-use food) must take the lead in addressing food safety management along the food chain. The manufacturer is the only element in the food chain having access to sufficient information about the food/destiny combination to assess food safety impact and to take appropriate action accordingly’. See ‘Integrated Supply Chain Management’, Bulletin of the International Dairy Federation, 449/2011, available at http://latu30.latu.org.uy/pls/portal/latu_portal.cargo_docum.Get?df_nom_tabla=bib_objetos [email protected]&df_nom_campo_blob=objeto&df_nom_campo_nom _documento=tipo_objeto&df_rowid_registro=AAAM0UAAEAAAq9AAAg, p. 4, accessed 27 April 2012. 227 ‘Integrated Supply Chain Management’, Bulletin of the International Dairy Federation, 449/2011, available at http://latu30.latu.org.uy/pls/portal/latu_portal.cargo_docum.Get?df_nom [email protected]&df_nom_campo_blob=objeto&df_nom _campo_nom_documento=tipo_objeto&df_rowid_registro=AAAM0UAAEAAAq9AAAg, pp. 7–8, accessed 27 April 2012. 228 That is, ‘feed industry, veterinary drugs industry, pesticides industry, suppliers of equip- ment (farm, manufacture), suppliers of ingredients (foods, additives, starter cultures)’. See ‘Integrated Supply Chain Management’, Bulletin of the International Dairy Federation, 449/2011, available at http://latu30.latu.org.uy/pls/portal/latu_portal.cargo_docum.Get?df [email protected]&df_nom_campo_blob=objeto&df _nom_campo_nom_documento=tipo_objeto&df_rowid_registro=AAAM0UAAEAAAq9AAAg, p. 8, accessed 27 April 2012.
New Standards for Dairy Products
Precursors The Standardization Law and various administrative measures opened the door of Chinese standards more widely to the use of international standards. Except in certain scientific and industrial domains, however, it seems that prior to the melamine crisis Chinese standards were oriented toward interna- tional standards only to a very limited extent. With regard to food safety, most Chinese laws and administrative measures did not refer at all systematically to international or foreign standards.229 In the recent past there had been two exceptions: the short-lived ‘China Famous Brands’ project, and the rules on exports adopted by certain export-oriented provinces. The ‘China Famous Brands’ project was intended to promote high-quality Chinese products at home and abroad. In Guangdong Province, for example, it was based on the Measures for the Administration of Famous-Brand (Agricultural) Products of Guangdong Province.230 The Measures applied to agricultural products ‘of which the quality reaches or approximates to the advanced level of the same kind of domestic or international products’.231 Products ‘that have obtained the international standard authentication certifi- cate and have adopted the international standards’ were given priority in being recommended for designation as agricultural famous brands of Guangdong Province.232 The designation was intended as a form of recognition233 and quality mark,234 and the intellectual property of designated products was to be strongly protected.235 However, the criteria for designation included export performance,236 and selected products were entitled to priority in the alloca- tion of export credits, foreign investment and export inspection and testing237 and certain financial benefits.238 For these reasons, among others, the United States and Mexico on 19 December 2008 challenged the China’s Famous Brands
229 See Chapter 8 of the book. 230 Measures for the Administration of Famous-Brand (Agricultural) Products of Guangdong Province, promulgated 17 March 2003, effective as of 17 March 2003, now expired (hereaf- ter Guangdong Famous Brand Measures). 231 Ibid., Article 2. 232 Ibid., Article 9(1). 233 Ibid., Articles 20, 21. 234 Ibid., Article 26. 235 See ibid., Articles 23, 26. 236 See ibid., Article 12. 237 See ibid., Article 21, paragraph 2. 238 Ibid., Article 30.
239 The challenge included the Guangdong Measures: see World Trade Organisation, China – Grants, Loans and Other Incentives, Request for Consultations by the United States, WT/ DS387/1, G/L/879, G/SCM/D81/1, G/AG/GEN/79, 7 January 2009. 240 See China – Grants, Loans and Other Incentives, Request for Consultations by the United States, WT/DS387, 19 December 2008; China – Grants, Loans and Other Incentives, Request for Consultations by Mexico, WT/DS388, 19 December 2008, both available at www.wto .org. 241 See China – Grants, Loans and Other Incentives, DS387, DS388, Current status, available at www.wto.org, accessed 20 April 2012. 242 The mous were not made public. However, see eg Office of the United States Trade Representative, ‘u.s. Relations with the People’s Republic of China (2009)’, ‘United States Wins End to China’s “Famous Brand” Subsidies after Challenge at wto: Agreement Levels Playing Field for American Workers in Every Manufacturing Sector’, United States Consulate, Hong Kong and Macau, u.s. Policy & Issues, u.s. and China 2009, available at http://hongkong.usconsulate.gov/uscn_t_ustr_2009121810.html, accessed 2 February 2010. 243 Provisions on the Supervision over and Administration of the Quality Safety of Export Agricultural Products, adopted on 14 August 2006 at the 73rd executive meeting of the People’s Government of Shandong Province by Order No. 189, promulgated on 18 October 2006, with effect as of 1 December 2006 (hereafter Shandong Quality Agricultural Export Provisions). 244 Ibid., Article 2.
Adoption of New Dairy Standards In dealing with the melamine crisis, the State Council referred directly to the importance of standards. Its decision taken at the 17 September 2008 executive meeting aimed inter alia at ‘confiscating and destroying all sub-standard prod- ucts, …strictly supervising the production of dairy companies with on-site inspections, [and]…revising regulations on the supervision and management of the industry’.248 The decision was followed up by the State Council itself, by ministries and by ministry-level organisations, each acting within the scope of its regulatory jurisdiction. In order to enforce respect for standards, the Ministry of Industry and Information Technology issued a notice that it would launch an immediate
245 Ibid., Article 3, paragraph 2. 246 Ibid., Article 6. 247 Ibid., Article 7, paragraph 2. 248 Xinhua, ‘China’s cabinet orders inspections, reform of dairy industry’, www.chinaview.cn, 17 September 2008, 20:19:43, available at http://news.xinhuanet.com/english/2008-09/17/ content_10059617.htm, accessed 30 March 2012.
249 工业和信息化部关于立即开展对三聚氰胺生产、销售和使用情况进行检查的 通知(工信明电 [2008]2号)[Notice of the Ministry of Industry and Information Technology on Immediately Inspecting the Production, Sales and Usage of Melamine (Gong Xin Ming Dian [2008] No. 2)]; (promulgated by telegram on 18 September 2008); the general content and news are available in Chinese on the website of the Ministry of Industry and Information Technology at http://www.miit.gov.cn/n11293472/n11293877/ n11301970/n11552553/11554190.html, last accessed 9 March 9, 2015. 250 工业和信息化部关于开展奶制品加工企业检查和整顿工作的通知(工信明电 [2008]3号)[Notice of the Ministry of Industry and Information Technology on Inspecting and Rectifying Dairy Processing Enterprises (Gong Xin Ming Dian [2008] No. 3)], (promul- gated by telegram on 19 September 2008); the general content and news are available in Chinese on the website of the Ministry of Industry and Information Technology, at http:// www.miit.gov.cn/n11293472/n11293877/n11301970/n11552568/11554949.html, last accessed 23 February 2015. 251 国家质量监督检验检疫总局关于废止《产品免于质量监督检查管理办法》的 决定 (总局令第109号)[Decision of the General Administration of Quality Supervision, Inspection and Quarantine on Repealing the Measures for the Administration of the Exemption of Products from Quality Supervision and Inspection] (Zong Ju Ling No. 109) (promulgated and came into effect on 18 September 2008), CLI.4.108639 Chinalawinfo. 252 This paragraph is based largely on Xinhua, ‘Quality watchdog cancels inspection exemp- tions for food producers’, www.chinaview.cn, 18 September 2008 04:44:07, available at http://news.xinhuanet.com/english/2008-09/18/content_10070801.htm, last accessed 30 March 2012. The first quotation is from p. 1 and the second quotation is from p. 2. 253 Food Safety Law of the People’s Republic of China (Draft), Article 83, and this document is available in Chinese on the website of the National People’s Congress of the People’s Republic of China, at http://www.npc.gov.cn/npc/xinwen/lfgz/flca/2014-06/30/ content_1869695.htm, last accessed 23 February 2015. This provision has been re-numbered as Article 60 in the final effective version of Food Safety Law (Order No. 9 of the President of the prc) (Adopted at the 7th Session of the Standing Committee of the 11th National
On 9 October, with effect from the same day, the State Council issued the Regulation on the Supervision and Administration of the Quality and Safety of Dairy Products (the qsdp Regulation).254 Fresh milk and dairy products were required to conform to national standards.255 International standards were not mentioned. It was forbidden to purchase fresh milk that did not meet health standards upon testing or which did not meet national standards.256 Exported products were required to meet Chinese domestic standards and standards of the importing country.257 Adding to fresh milk or dairy products any non- edible chemical substances or any other substance that may be hazardous to human health,258 producing or selling products that fail to meet national stan- dards259 and failing to stop production or recall defective products260 were potentially subject to sanctions under the Criminal Law. The qsdp Regulation aimed to provide a general normative framework for achieving central government’s objectives of ensuring product quality and restoring public confidence. This was followed by the enactment on 11 November 2008 by the Ministry of Agriculture of the more detailed Administrative Measures for the Production and Purchase of Fresh Milk (ppfm Measures).261 Fresh milk was required to meet national standards.262 It was forbidden to add any substance to fresh milk during production, storage, transportation or safe.263 Fresh milk that did not meet national standards could not be sold.264 Milk purchasing stations were required to ensure that the fresh milk they purchased meet national
People’s Congress of the prc on 28 February 2009)(Promulgated and came into force on 1 June 2009), CLI.1.113981(en), Chinalawinfo. 254 Regulation on the Supervision and Administration of the Quality and Safety of Dairy Products (Order No. 536 of the State Council of the prc) (Adopted at the 28th executive meeting the State Council on 6 October 2008) (Promulgated and came into force on 9 October 2008), CLI.2.109190(en), Chinalawinfo (hereafter qsdp Regulation). 255 Ibid., Article 6. 256 Ibid., Article 24. 257 Ibid., Article 45. 258 Ibid., Article 54. 259 Ibid., Article 55. 260 Ibid., Article 56. 261 Administrative Measures for the Production and Purchase of Fresh Milk (promulgated by Order No. 15 of the Ministry of Agriculture, 11 November 2008, effective as of 11 November 2008) (hereafter pprm Measures). 262 Ibid., Article 5, paragraph 1. 263 Ibid., Article 5, paragraph 2. 264 Ibid., Article 16.
265 Ibid., Article 24. 266 National Food Safety Standard for Good Manufacturing Practices for Dairy Products, unofficial translation available at United States Department of Agriculture, Foreign Agricultural Service, Global Agricultural Information Network (gain), China – People’s Republic of, National Dairy Standard – gmp for Dairy, gain Report number CH9107, 16 December 2009, available at http://gain.fas.usda.gov/Recent%20GAIN%20Publications/ National%20Dairy%20Standard%20-%20GMP%20for%20Dairy_Beijing_China%20 -%20Peoples%20Republic%20of_12-16-2009.pdf, last accessed 10 December 2014. 267 National Food Safety Standard for Infant Formulas, unofficial translation available at United States Department of Agriculture, Foreign Agricultural Service, Global Agricultural Information Network (gain), China – People’s Republic of, National Dairy Standard – Infant Formulas, gain Report Number CH9103, 1 December 2009; available at http://gain .fas.usda.gov/Recent%20GAIN%20Publications/National%20Dairy%20Standard%20 -%20Infant%20Formulas_Beijing_China%20-%20Peoples%20Republic%20of_12-1-2009 .pdf, last accessed 10 December 2014. 268 National Food Safety Standard for Follow-up Formulas, unofficial translation available at United States Department of Agriculture, Foreign Agricultural Service, Global Agricultural Information Network (gain), China – People’s Republic of, National Dairy Standard – Follow-up Formulas, gain Report Number CH9104, 2 December 2009, available at http:// gain.fas.usda.gov/Recent%20GAIN%20Publications/National%20Dairy%20 Standard%20-%20Follow-up%20Formulas_Beijing_China%20-%20Peoples%20 Republic%20of_12-2-2009.pdf, last accessed 10 December 2014. 269 食品安全国家标准, 乳粉, National Food Safety Standard, Milk Powder, gb 19644–2010, available at http://61.49.18.65/publicfiles/business/cmsresources/zwgkzt/cmsrsdocument/ doc8466.pdf [available only in Chinese], accessed 24 April 2012. See also National Food Safety Standard for Milk Powder, unofficial translation available at United States Department of Agriculture, Foreign Agricultural Service, Global Agricultural Information Network (gain), China – People’s Republic of, National Dairy Standard – Milk Powder, gain Report Number CH9097, 1 December 2009, http://gain.fas.usda.gov/Recent%20GAIN%20 Publications/National%20Dairy%20Standard%20-%20Milk%20Powder_Beijing_ China%20-%20Peoples%20Republic%20of_12-1-2009.pdf, last accessed 10 December 2014.
270 Codex Alimentarius, Milk and Milk Products (World Health Organisation, Food and Agriculture Organisation of the United Nations, Rome, 2nd edition 2011), p. 1, available at http://www.fao.org/docrep/015/i2085e/i2085e00.pdf, last accessed 28 February 2015. 271 食品安全国家标准, 粉状婴幼儿配方食品良好生产规范, National Food Safety Standard, Good Manufacturing Practice for Powdered Formulae for Infants and Young Children, gb 23790–2010, available at http://61.49.18.65/publicfiles/business/cmsresources/ zwgkzt/cmsrsdocument/doc8484.pdf [available only in Chinese], accessed 24 April 2012. See also National Food Safety Standard for Good Manufacturing Practice for Powdered Milk Formula for Infants and Young Children, unofficial translation available at United States Department of Agriculture, Foreign Agricultural Service, Global Agricultural Information Network (gain), China – People’s Republic of, National Dairy Standard – Good Manufacturing Practices for Powder, gain Report Number CH9108, 2 December 2009, http://gain.fas.usda.gov/Recent%20GAIN%20Publications/National%20Dairy%20 Standard%20-%20Good%20Manufacturing%20Practices%20for%20Powder_Beijing _China%20-%20Peoples%20Republic%20of_12-2-2009.pdf, last accessed 10 December 2014. 272 Code of Hygienic Practice for Powered Formulae for Infants and Young Children, CAC/ RCP 66-2008, available at www.codexalimentarius.org/input/download/standards/11026/ CXP_066e.pdf, accessed 2 March 2015. 273 食品安全国家标准 生乳 National Food Safety Standard Raw Milk, gb 19301–2010, avail- able at http://down.foodmate.net/standard/sort/3/21745.html [available only in Chinese], last accessed 23 February 2015. Following the Measures on International Standards and Part of the Guidance of Standardization Work, Rules on Adoption of International Standards, The number of the standard, GB19301–2010, indicated that this was a compul- sory national standard formulated by the Standardization Administration Commission (sac). 274 http://www.hkexnews.hk/listedco/listconews/sehk/2010/1126/01117/EWPDAIRY -20101109-11.pdf, p. 75, accessed 11 April 2012.
The Chinese government notified all these new dairy standards to the wto on 20 November 2009.275 Subsequently, the wto Trade Policy Review Body reported that, on 27 April 2010, the Ministry of Health ‘issued 66 new national standards on the safety of dairy products, which included 15 new standards for dairy products, 2 production rules and 49 standards for inspec- tion methods’.276 Not only did China respect scrupulously its legal obliga- tions under the tbt Agreement. This also marked the first time that Chinese standards in the dairy sector referred expressly to international standards. China began to join the ‘international track’277 in matters of food safety as part of the process of reinforcing national food safety regulation for dairy products.
Protein, Bacteria and Compromise The adoption of the standard for raw milk proved highly controversial. It pro- voked public concern about the role of leading enterprises in the making of domestic standards.278 The President of the Guangzhou Dairy Association, Wang Dingmian, criticized the four-fold increase in the maximum limit for bacteria in raw milk and the lowering of the protein content requirement from 2.95g to 2.8 g per ml as ‘represent[ing] a retreat to standards that haven’t been used in 25 years and that the standards are the weakest in the world’.279 He ascribed the new standards to pressure from diary producers seeking to cut costs. He was joined by Wei Ronglu, Executive Vice-President of the Dairy
275 United States Department of Agriculture, Foreign Agricultural Service, 2009 Regulation Reports, available at http://www.usdachina.org/info_details1.asp?id=2261, last accessed 10 December 2014. 276 World Trade Organization, Trade Policy Review Body, Trade Policy Review, China, Record of the Meeting, Addendum, WT/TPR/M/230/Add.1 (Feb. 22, 2011), at 15–16. 277 On this slogan, see Wang, ‘Linking Up’, supra Chapter 2 note 6. 278 For example, see Zhu Hongjun, ‘How Milk Standards Triggered Uproar in China’, Chinadialogue, 31 August 2012, available at https://www.chinadialogue.net/article/ 5141-How-milk-standards-triggered-uproar-in-China, last accessed 28 January 2015. 279 Xinhua News Agency, ‘China’s health ministry defends controversial milk standard’, Beijing, 1 December 2010, http://news.xinhuanet.com/english2010/china/2011-12/01/c _131281788.htm, accessed 3 May 2012. See also 专家称中国奶业标准全球最低 被个别 企业绑架 [Experts Claimed National Standards of Milk Products in China is the world’s lowest one due to certain enterprises’ kidnapping], Radio Network China (Beijing), 18 June 2011, available at http://news.163.com/11/0618/21/76S3ASOG00014JB5.html, last accessed 23 December 2014. I am grateful to Chong Qi for translating relevant parts of this document.
Association of Western China, and Guo Benheng, President of Bright Dairy.280 In reply, Nadamude, Secretary-General of the Dairy Association of Inner Mongolia Autonomous Region expressed strong support for small farmers. He was quoted as saying that, ‘if foreign standards are applied in China, “70% of the country’s milk producers would be forced to slaughter their livestock”’.281 Each side thus defended their own interests and those of their suppliers. Each side was also supported by its ministerial or other national govern- mental sponsors, even though the contest between different central govern- ment bureaucracies was less publicly visible. I speculate that a negotiated compromise at the highest level between the competing factions was the basis for the resulting dairy standards, as well as of the treatment of small work- shops. A Ministry of Health official in charge of food safety, Zhang Xudong, stated that the drafting panel of the standards consisted of 70 members from government, academic life and the dairy industry. In his view, dairy producers should participate, since they are intimately involved in the production. In any event, he stated that ‘the initial and final drafts were all put forward by the entire panel after thorough discussion’.282 Another view, aired by international dairy specialist Lior Yaron in a United States dairy industry conference,283 was that:
280 A. Sneha, ‘Food Safety Standards & the Dairy Industry in China: Impact of Regional Divide and Income Inequalities’, Indian Institute of Technology Madras, China Studies Centre, iitm csc Special Report No. 1, June 2011, available at http://www.csc.iitm.ac.in/?q =node/68, last accessed 23 December 2014; Hu Yue, ‘Questioning the Standard: Dairy qual- ity standards trigger further controversy’, Beijing Review, 12 December 2011, available at http://www.bjreview.com/Cover_Stories_Series_2012/2011-12/12/content_442486 .htm,last accessed 23 December 2014 (hereafter Hu Yue, ‘Questioning’). 281 Johnny Lin and Staff Reporter, ‘Leaders of China’s dairy industry lock horns over quality’, WantChinaTimes, Economy, 28 June 2011, available at http://www.wantchinatimes.com/ news-subclass-cnt.aspx?id=20110628000013&cid=1502, last accessed 23 December 2014. See also Hu Yue, ‘Questioning’, supra note 280. 282 Xinhua News Agency, ‘China’s health ministry defends controversial milk standard’, Beijing, 1 December 2010, http://news.xinhuanet.com/english2010/china/2011-12/01/ c_131281788.htm, accessed 3 May 2012. Dr Zhang was then Deputy Director, Bureau of Health Supervision, Ministry of Health: Codex Alimentarius Commission, Food and Agriculture Organization and World Health Organization, Joint fao/who Food Standards Programme, Thirty-five Session, Geneva, Switzerland, 30 June–5 July 2008: Report of the 29th Session of the Codex Committee on Nutrition and Foods for Special Dietary Uses, Bad Neuenahr-Arhweiler, Germany, 12–16 November 2007, p. 25, available at ftp://ftp.fao .org/codex/Reports/Alinorm08/al31_26e.pdf., last accessed 29 January 2015. 283 Mr Lior Yaron presented a paper on ‘Milk Quality in China’, at the 2014 National Mastitis Council meeting in Fort Worth: National Mastitis Council, 53rd Annual Meeting,January
The counter-intuitive downward adjustment in the minimum standards was intended to protect small scale dairy farmers whose milk may other- wise have been rejected by processors for quality reasons, and to reduce the incentive or need to adulterate raw milk to meet requirements (espe- cially for protein content).284
This was perhaps the most realistic explanation of the new standards, coming as it did from a widely acknowledged dairy consultant with long experience in the Chinese dairy sector and to whom the Mayor of Being awarded the Great Wall Friendship Award in recognition of his innovative work in dairy sector reforms in China.285 It was reportedly confirmed by the government.286 The
26–28, 2014, Fort Worth, Texas, Program and Schedule of Events, available at http:// nmconline.org/annualmeet/2014/progAM2014.htm, last accessed 22 December 2014. As of 2014, Mr Yaron was then Director, Global Customer Project Support, DeLaval International, Sweden, a major dairy and farming machinery producer and now part of the DeLaval Tetrapack group: On Lior Yaron, see Lior Yaron, ‘Milk Quality in China’, DeLaval Milkproduction.com, 31 January 2014, available at http://www.milkproduction .com/Library/Editorial-articles/Milk-quality-in-China-/, last accessed 22 December 2014 and DeLaval Milkproduction.com, ‘Yaron, Lior’, available at http://www.milkproduction .com/Library/Authors/Yaron-Lior/, last accessed 22 December 2014. On DeLaval International, see its website at http://www.delaval.com/, last accessed 22 December 2014 and ‘DeLaval’, http://en.wikipedia.org/wiki/DeLaval, last accessed 22 December 2014. 284 Lior Yaron, ‘Milk Quality in China’, DeLaval Milkproduction.com, 31 January 2014, available at http://www.milkproduction.com/Library/Editorial-articles/Milk-quality-in-China-/, last accessed 22 December 2014. The article was part of the proceedings of the nmc 2014 Annual Meeting in Fort Worth, Texas. More than 420 dairy health specialists, milk produc- ers and industry partners participated in the meeting, which took place from in Fort Worth from 26–28 January 2014, see ‘Milk quality experts gather for 53rd National Mastitis Council Annual Meeting’, Hoard’s Dairyman, 14 February 2014, available at http://www .hoards.com/IB_National_Mastitis_Council_Annual_Meeting, last accessed 22 December 2014. On the nme, see its website at http://www.nmconline.org/default.asp, last accessed 22 December 2014. Mastitis is a serious and costly infection in dairy cattle: see Ayuba Caleb Kudi, M.P. Bray, Aziwo. T.Niba and Demo. J.U.Kalla, ‘Mastitis Causing Pathogens within the Dairy Cattle Environment’, International Journal of Biology, 1, 1, January 2009, pp. 3–13, available at http://www.ccsenet.org/journal/index.php/ijb/article/viewFile/ 640/615, last accessed 22 December 2014. 285 For further details, see Leora Eren Frucht, ‘Israel’s man in China ushers in a dairy revolu- tion’, Israel 21C, 26 June 2005, available at http://www.israel21c.org/people/israels-man-in -china-ushers-in-a-dairy-revolution/, last accessed 22 December 2014. 286 Tianshannet, ‘Dairy firms accused of setting low standard’, 29 November 2011, available at http://english.ts.cn/news/content/2011-11/29/content_6376383.htm, last accessed 23 December 2014.
Melamine Standards and Transnational Relations The melamine crisis revealed a particularly unfortunate gap in the available range of standards, both Chinese and international. Prior to the crisis, there were no standards on melamine, either in China or at the international level. However, after the earlier incident concerning melamine-contaminated pet food in the United States, the us Food and Drug Administration (fda) devel- oped methods for detecting melamine in animal tissue, pet food, gluten and soya. These ‘in-house’ methods were not evaluated by outside scientists. With the benefit of hindsight, they were potentially available to be adapted for use concerning dairy products,290 but apparently they were unknown, neglected
287 http://www.hkexnews.hk/listedco/listconews/sehk/2010/1126/01117/EWPDAIRY-20101109 -11.pdf, p. 75, accessed 11 April 2012. 288 Further research is needed on the application of competition law to standards-setting in China. This lies outside the scope of this chapter. For a brief introduction, see Guo He, ‘Fair Competition Issues in the Process of Standard Setting in China’, in Sherrie Bolin (ed), The Standards Edge: The Golden Mean (Sheridan Books for Bolin Communications, Ann Arbor, mi, 2007), pp. 29–34, available at http://www.thebolingroup.com/Standards _Edge_Golden_Mean_TOCandSummaries.pdf, last accessed 23 December 2014. 289 Zhu Hongjun, ‘How Milk Standards Triggered Uproar in China’, Chinadialogue, 31 August 2012, available at https://www.chinadialogue.net/article/5141-How-milk-standards -triggered-uproar-in-China, last accessed 28 January 2015. 290 United Kingdom of Great Britain and Northern Ireland, Food Standards Agency, ‘Analytical methods for the detection and quantification of melamine in food and feed’, available at https://www.food.gov.uk/sites/default/files/multimedia/pdfs/enforcement/ enfe08064u2test.pdf, last accessed 28 January 2015. For an account by participating scien- tists, see Jonathan J Litzau, Gregory E. Mercer and Kevin J. Mulligan, ‘GC-MS Screen for the Presence of Melamine, Ammeline, Ammelide, and Cyanuric Acid’, u.s. Food and Drug Administration, Laboratory Information Bulletin, lib No. 4423: Melamine and Related Compounds, 24, October 2008, available at http://www.fda.gov/Food/
Announcement on the Approval and Publication of GB/T 22388-2008 National Standard Testing Method of Melamine in Raw Milk and Dairy Products Announcement on the Approval and Publication of National Standards of p.r.c. November 13, 2008 (N. 126) The GB/T 22388-2008 National Standard for Testing Method of Melamine in Raw Milk and Diary Products…, approved by the General
FoodScienceResearch/LaboratoryMethods/ucm071759.htm, last accessed 28 January 2015. 291 FlexNews, ‘Chinese Government Issue Official Note on Legal Melamine Levels’, FlexNews, Beijing, 17 October 2008, available http://www.flex-news-food.com/console/PageViewer .aspx?page=19834, last accessed 27 January 2015. 292 This account is drawn from FlexNews, ‘Chinese Government Issue Official Note on Legal Melamine Levels’, FlexNews, Beijing, 17 October 2008, available http://www.flex-news -food.com/console/PageViewer.aspx?page=19834, last accessed 27 January 2015. 293 http://www.aqsiq.gov.cn/ztlm/nf/rdgz/200810/t20081008_92553.htm date accessed: 2012/4/28.
Administration of Quality Supervision, Inspection and Quarantine of the p.r.c., the standardization administration of the p.r.c., on 7 October 2008, is now published and will enter into force on the date of promulgation. 1. This standard applies to the quantitative measurement of mela- mine in raw milk, dairy products and other products containing milk. 2. There are three technical standards to detect melamine volume, including 1. High Performance Liquid Chromatography (hplc), 2. Gas chromatography-mass spectrometry (GC-MS), 3. Liquid Chromatography-Tandem Mass Spectrometry (LC-MS/MS). The respective thresholds for quantitative measurement are 2 mg/kg, 0.05 mg/kg and 0.01 mg/kg. While testing, the choice of correspond- ing testing method should be based on the tested objects and its threshold limit. 3. Consult the Standardization Administration of the p.r.c. if there are any questions or suggestions during the implementation of this standard.294
Also on the same day, aqsiq and the National Standards Commission jointly issued the Rapid Determination of Melamine in Raw Milk High Performance Liquid Chromatography Method (GT/T 22400-2008).295
294 Ministry of Health, Ministry of Industry and Information Technology, Ministry of Agriculture, Trade Mark Office of the State Administration for Industry and Commerce, General Administration of Quality Supervision, Inspection and Quarantine of the People’s Republic of China, ‘Announcement (2012)’, http://www.aqsiq.gov.cn/ztlm/nf/ rdgz/200810/t20081008_92553.htm date accessed: 2012/4/28. 295 aqsiq and the National Standards Commission, Rapid Determination of Melamine in Raw Milk High Performance Liquid Chromatography Method *GB/T 22400–2008 (in Chinese). This method was one of those used by us fda. On the method, see Sheryl Tittlemier, ‘Background Paper on Methods for the Analysis of Melamine and Related Compounds in Foods and Animal Feeds’, prepared for the who Expert Meeting on Toxicological and Health Aspects of Melamine and Cyanuric Acid, in collaboration with fao, supported by Health Canada, Health Canada, Ottawa, Canada, 1–4 December 2008, available at http://www.who.int/foodsafety/fs_management/Melamine_1.pdf, last accessed 29 January 2015, published as s.a. Tittlemier, ‘Methods for the Analysis of Melamine and Related Compounds in Foods: A Review’, Food Additives and Contaminants: Part A, 27, 2, 2010, pp. 129–145; Yuan Liu, Ewen E.D. Todd, Qiang Zhang, Jiang-rong Shi and Xian-jin Liu, ‘Recent developments in the detection of melamine’, Journal of Zhejiang University Science B (Biomedicine and Biotechnology), 13, 7, July 2012, pp. 525–532, which notes that lc methods are the most powerful methods but are relatively expensive and
On the same day, 15 October 2008, the Ministry of Health, the Ministry of Industry and Information Technology, the Ministry of Agriculture, saic and aqsiq jointly published a standard regarding the volume of melamine in dairy products and food products, including infant formula.296 In unusually explicit observations about the context in which the standard was adopted, the Ministry of Health announcement stated:
Melamine is not a food ingredient, nor a food additive, and adding it arti- ficially to food is prohibited. Those who add melamine into man-made food shall be held liable. Melamine, used as a chemical raw material, can be added into the production of plastics, paints, adhesives and food pack- ing materials. According to research, melamine can penetrate, at a low level, into food via the environment and food packing materials. To ensure people’s health and the quality of milk and dairy products, tempo- rary thresholds for the content of melamine in the milk and dairy prod- ucts are set up as below: In infant formula, the threshold for melamine is 1 mg/kg; products containing a higher amount are prohibited from being sold. In liquid milk, raw milk included, milk power and other formulas, the threshold for melamine is 2.5 mg/kg; products containing a higher amount are prohibited from being sold. In food containing more than 15% milk, the threshold for melamine is 2.5 mg/kg; products containing a higher amount are prohibited from being sold. This regulation shall enter into force the date of promulgation.297
time-consuming; Wikipedia, ‘High-Performance Liquid Chromatography’, available at http://en.wikipedia.org/wiki/High-performance_liquid_chromatography, last accessed 28 January 2015. 296 National Standard on the Instant Detection of Melamine: see General Administration of Quality Inspection, Supervision and Quarantine (gaqsiq), ‘National Standard on Instant Detection of Melamine Issued’, http://english.aqsiq.gov.cn/NewsRelease/NewsUpdates/ 200810/t20081017_93992.htm, cited in Library of Congress, Law Library of Congress, ‘China: Dairy Product Quality and Safety Regulations’, available at http://www.loc.gov/ lawweb/serviet/lloc_news?disp3_I20540762_text, last accessed 19 December 2014. See also Edward Wong, ‘Milk Scandal Pushes China to Set Limits on Melamine’, The New York Times, 8 October 2008, available at www.nytimes.com/2008/10/09/world/asia/09milk .html?_r=2&sq+melamine%20china&st=cse&scp=8%pagewanted+all&, last accessed 28 March 2013. The latter source sets the date of promulgation as 8 October 2009. 297 Ministry of Health, Ministry of Industry and Information Technology, Ministry of Agriculture, Trade Mark Office of the State Administration for Industry and Commerce,
Note that the standards were in the form of temporary measures; the use of provisional, temporary or trial norms is a common Chinese practice.298 Following the Chinese lead, the World Health Organisation (who) in December 2008 recommended a maximum daily intake (mdi) for infants of 0.2 mg/kg of body weight/day.299 Chinese national standards for detecting melamine and for melamine in dairy products were adopted as a direct result of the crisis. They preceded the adoption of international standards. At the time, only a few countries in the world had standards for melamine in food products, and apparently none had standards for melamine in dairy products. In Hong Kong and New Zealand the standard was 2.5 parts per million for food products, and the United States Food and Drug Administration (usfda) had suggested guidelines of 2.5 ppm. After the scandal, various countries adopted interim standards, for example Canada set a standard of 0.5 ppm for infant formula and 2.5 ppm for other food products containing milk and milk-derived products. The International Dairy Federation (idf) played a central role in the devel- opment of international standards related to the detection and volume melamine. After the melamine crisis became public, it began work with the International Standardisation Organisation (iso) to develop an international standard for the determination of melamine and cyanuric acid in milk, milk products and infant formula. idf and iso jointly produced and published the standard in 2010.300 In March 2010 the standard was approved by the Codex Committee on Methods of Analysis and Sampling (ccmas). ccmas recom- mended the standard to the Codex Alimentarius Commission (cac) for adop- tion. On 5–9 July 2010, cac at its 33rd session conference adopted an ml for melamine of 1 mg/kg for powdered infant formula and an ml for melamine of
General Administration of Quality Supervision, Inspection and Quarantine of the People’s Republic of China, ‘Announcement (November 25, 2008)’, http://www.gov.cn/ zwgk/2008-10/08/content_1114950.htm date accessed: 2012/4/28. I am grateful to Zhang Kaixiang, 28 April 2012, for the translation from Chinese to English. The document is also available in Chinese on the website of the Central People’s Government of the People’s Republic of China, at http://www.gov.cn/zwgk/2008-10/08/content_1114950.htm, last accessed 28 January 2015. 298 See also Stanley Lubman, Bird in a Cage: Legal Reform in China After Mao (Stanford University Press, Stanford, 1999), p. 147; Benjamin van Rooij, Regulating Land and Pollution in China: Lawmaking, Compliance, and Enforcement; Theory and Cases (Leiden University Press, Leiden, 2006), pp. 44–49, 98–104. 299 Xiu and Klein, ‘Factors’, supra Chapter 2 note 155, at 468 and sources cited there. 300 (ISO/TS 15495/IDF/RM 230:2010), available at http://www.iso.org/iso/catalogue_detail ?csnumber=55437, accessed 26 April 2012.
2.5 mg/kg for food other than infant formula.301 The standard, iso/ts 15495 | idf/rm 230:2010, was described as ‘[t]he first global limits on permitted melamine levels in food’.302 The establishment of the standard took only five steps instead of the usual eight steps.303 Subsequently, the Codex Alimentarius Commission began discussions to adopt the process of adopting an ml for liq- uid infant formula.304 Adopted in July 2012, the standard provided for an ml for melamine of 0.15 mg/kg in liquid infant formula.305
301 Codex Alimentarius Commission, Codex General Standard for Contaminants and Toxins in Food and Feed, Codex Standard 193–1955, p. 47, available at http://www.codexalimen- tarius.net/input/download/standards/17/CXS_193e.pdf., last accessed 28 January 2015. See also World Health Organization, ‘International Experts Limit Melamine Levels in Food’, News Release, 6 July 2010, available at http://www.who.int/mediacentre/news/ releases/2010/melamine_food_20100706/en/, last accessed 28 July 2015; Food and Agriculture Organization of the United Nations, ‘International Experts Limit Melamine Levels in Food’, Codex Alimentarious Commission Meeting in Geneva, 6 July 2010, available at http://www.fao.org/news/story/en/item/43719/icode/, last accessed 28 January 2015.http://www.codexalimentarius.net/download/report/734/al33_13e.pdf, p. 11, accessed 22 April 2012. See also Joint fao/who Food Standards Programme, Codex Committee on Contaminants in Foods (cccf), Fourth Session, Izmir, Turkey, 26–30 April 2010, available at http://www.ift.org/public-policy-and-regulations/~/media/Public%20 Policy/International%20Advocacy/CCCF%202010%20IFT%20CSE%20report.pdf, last accessed 28 January 2015. 302 Rory Harrington, ‘Codex sets limits for melamine and aflatox in food’, Food Production Daily, available at http://www.foodproductiondaily.com/Quality-Safety/Codex-sets -limits-for-melamine-and-aflatoxin-in-food, accessed 27 April 2012. 303 http://www.google.com.hk/url?sa=t&rct=j&q=codex+committee+on+contamination+in +food+cccf++powdered+melamine&source=web&cd=1&ved=0CDAQFjAA&url=http%3 A%2F%2Fwww.ift.org%2Fpublic-policy-and-regulations%2F~%2Fmedia%2FPublic%25 20Policy%2FInternational%2520Advocacy%2FCCCF%25202010%2520IFT%2520CSE%2 520report.pdf&ei=Mu2TT9WcMoTAiQfuop2VBA&usg=AFQjCNH9PraNNQweuJ3oGKyU WrXLn2HL5A page 1, accessed 22 April 2012; . http://www.google.com.hk/url?sa=t&rct =j&q=codex+committee+on+contamination+in+food+cccf++powdered+melamine&sou rce=web&cd=1&ved=0CDAQFjAA&url=http%3A%2F%2Fwww.ift.org%2Fpublic-policy- and-regulations%2F~%2Fmedia%2FPublic%2520Policy%2FInternational%2520Advoca cy%2FCCCF%25202010%2520IFT%2520CSE%2520report.pdf&ei=Mu2TT9WcMoTAiQfu op2VBA&usg=AFQjCNH9PraNNQweuJ3oGKyUWrXLn2HL5A page 1, accessed 22 April 2012; Procedures for the Elaboration of the Codex Standards and Related Texts, Part 1. http://www.fao.org/DOCREP/005/Y2200E/y2200e04.htm, accessed 22 April 2012. 304 See ftp://ftp.fao.org/codex/meetings/cccf/cccf6/cf06_07e.pdf, accessed 22 April 2012. 305 Mark Ashley, ‘Codex regulation “bolts the door” on infant milk melamine contamination’, Food Quality News.Com, 5 July 2012, available at http://www.foodqualitynews.com/ Regulation-and-safety/Codex-regulation-bolts-the-door-on-infant-milk-melamine -contamination, last accessed 28 January 2015.
The Chinese government in 2008 had already adopted a standard for melamine for infant powdered formula and other milk products. However, fol- lowing the adoption of the Codex standard in 2010, it updated its melamine volume standard for these products on 21 March 2012 to coincide with the Codex standard.306 This confirmed its previous level of 1 mg/kg for infant pow- dered formula and extended the level of 2.5 mg/kg from other milk products to all food other than infant formula. The legal text referred expressly to the Codex standard:
Melamine is not a food ingredient, nor a food additive, and adding it arti- ficially to food is prohibited. Those who add melamine into man-made food shall be held liable. Melamine, used as a chemical raw material, can be added into the production of plastics, paints, adhesives and food pack- ing materials. According to research, melamine can penetrate, at a low level, into food via the environment and food packing materials. To ensure people’s health and the quality of milk and dairy products, accord- ing to Food Safety Law and its Implementing Regulation, on the basis of the implementation situation of the Announcement on the Temporary Threshold for Melamine in Milk and Dairy Products (Nov. 25, 2008), the thresholds for the content of melamine in food in China are set up as below: The threshold for melamine is 1 mg/kg in infant formula and 2.5 mg/kg in other food. Products containing a higher amount are prohibited from being sold. This regulation shall enter into force as of the date of promulgation. The Announcement on the Temporary Threshold for Melamine in Milk and Dairy Products (Nov. 25, 2008) shall be abrogated therefrom.307
This aligned the Chinese standard with the Codex standard and converted the updated version of the earlier temporary threshold into a permanent stan- dard. Note that the measure referred expressly to the 2009 Food Law and its
306 http://www.moh.gov.cn/publicfiles/business/htmlfiles/mohwsjdj/s7891/201104/51355 .htm date accessed: 2012/4/28. 307 Ministry of Health, Ministry of Industry and Information Technology, Ministry of Agriculture, Trade Mark Office of the State Administration of Industry and Commerce, General Administration of Quality Supervision, Inspection and Quarantine of the People’s Republic of China, ‘Announcement (2011)’, http://www.moh.gov.cn/publicfiles/ business/htmlfiles/mohwsjdj/s7891/201104/51355.htm date accessed: 2012/4/28 (emphasis added: fs). I am grateful to Zhang Kaixiang for the translation from Chinese to English.
Implementing Regulation as well as to the practical experience of the applica- tion of the 2008 Temporary Threshold. Later, as of July 2012, the Ministry of Health commented that Chinese standards and un standards were ‘about the same’.308
Conclusion
The legal framework for food safety standards in China was established long before the melamine crisis, but the crisis provided a decisive stimulus to legal reform of specific standards for raw milk. It led directly to the 2009 Food Safety Law and to revision of numerous standards for dairy products. Prior to the cri- sis, there were no standards directly concerning melamine in infant formula; other possibly relevant standards were not enforced. Adequate testing proce- dures did not seem to exist, or if they existed, they were not used. The 2009 Food Safety Law brought crucial institutional and normative changes, in par- ticular in the form of increased centralization of responsibility and greater supervision of the application of rules. Science met politics on four controversial questions about standards for raw milk: protein level, bacteria count, determination of melamine content and maximum level for melamine. The adoption of legally binding national stan- dards for raw milk and melamine formed part of the transnationalisation of Chinese dairy standards. This process involved the mobilisation of factions running from individual companies to trade associations to governmental organisations to specific ministries in different xitong and even an interna- tional trade association. Both the composition and resources of both sides stemmed from both domestic and international scientific, economic and polit- ical sources.309 In this instance, the compromise between opposing factions served to manage changes in rules regarding the safety of dairy products, while preserving market access for small as well as large producers, at least in the short run. Are standards by themselves sufficient? The World Health Organization’s Food Safety Scientist was quoted in mid-September 2008 as saying that, once the Chinese government began taking measures, milk products on the shelf
308 Zhuang Pinghui, ‘Melamine limit in line with un, says ministry’, South China Morning Post, Tuesday, 10 July 2012, p A5 [Briefs]. 309 This view is derived partly from Scott Kennedy, ‘The Political Economy of Standards Coalitions: Explaining China’s Involvement in High-Tech Standards Wars’, Asia Policy, 2, July 2006, pp. 41–62 at 47.
310 Voice of America, ‘China’s Melamine Milk Crisis Creates Crisis of Confidence’, http:// www.voanews.com/content/a-13-2008-09-26-voa45/403825.html, last visited 13 September 2013. 311 David Barboza, ‘China closes dairy after melamine found’, International Herald Tribune (The Global Edition of the New York Times), Saturday-Sunday, 2–3 January 2010, at 13. 312 David Cohen, ‘Return of China’s Milk Issue’, The Diplomat, 3 December 2011, http:// thediplomat.com/2011/12/return-of-chinas-milk-issue/, last accessed 9 December 2014. 313 Reuters in Beijing, ‘Hundreds of cartons of alkaline-tainted milk recalled’, South China Morning Post, Friday, 29 June 2012, p A9.
Introduction
The preceding chapters examined several basic elements of the transnationali- sation of Chinese food safety law: its origins in the melamine crisis, the emer- gence of the 2009 Food Safety Law and the reform of standards, especially in the dairy sector. This chapter shifts the focus away from China, moving afar the better to see closer. It concentrates in some detail on the principal multilateral sites of food safety regulation. Here we are concerned only with the develop- ment of recent food safety regulation; it is important to bear in mind that for many centuries China has been involved in international affairs, with varia- tions of form and extent at different time periods. Even the earlier chapters referred, directly or indirectly, frequently or occasionally, to relations between China and other sites of governance. In virtually all instances, these other sites of governance were international or regional in scope, though some references were to specific other countries only. Such references were inevitable, because in this book we are concerned with the making of transnational food safety law in China, and the process of transnationalisation almost necessarily involves increasing relations between sites of governance. At the outset it is useful to clarify two concepts. First, ‘sites of governance’. A site of governance is a forum for decision-making with authority to settle disputes.1 It may be public, or private, or mixed. Hence sites include but are not limited to international organisations or States; they may also be private international organisations or dispersed and disaggregated fields of spheres of authority, which are not necessarily linked to a specific territory. Hence they can include specific types of transnational relations, such as transnational companies or transnational non-governmental organisations (ngos). They represent spheres of authority which are ‘distinguished by the presence of actors who can evoke compliance when exercising authority as they engage in the activities that delineate the sphere’.2 Each site has two dimensions: a structural dimension and a relational dimension. The structural dimension
1 For more detailed discussion, see Snyder, Legal Pluralism, supra Chapter 2 note 7. 2 James N. Rosenau, ‘Toward an Ontology for Global Governance’, in Approaches to Global Governance Theory (eds. Martin Hewson and Timothy J. Sinclair) (Albany, State University of New York Press, 1999), pp. 287–301 at 295.
© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004306929_006
3 On us-China relations concerning food safety, see u.s. Food and Drug Administration, fda’s Activities Related to China, Statement of Steven M. Solomon, d.v.m., m.p.h, 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, available at http://www.fda .gov/newsevents/testimony/ucm353577.htm, last accessed 17 February 2014. The current basic legislation is the fda Food Safety Modernization Act. 21 usc 2201, Public Law 111–353, 111th Congress, January 4, 2011 124 stat. 3885, 21 usc 2201.002. On eu-China relations concern- ing food safety, see Snyder, Basic Documents, supra Chapter 2 note 123, pp. 794–796, 810–818, 830–833, 945–959. The current basic legislation comprises the eu General Food Law, supra note 724; and Regulation (ec) No 882/2004of the European Parliament and of the Council of 29 April 2004 on official controls performed to ensure the verification of compliance with feed and food law, animal health and animal welfare rules, Official Journal of the European Union, 30 April 2004, L165/1. 4 For further discussion, see Mahiou and Snyder, Food Safety, supra Chapter 2 note 17, Ching-Fu Lin, ‘Global Food Safety: Exploring Key Elements for an International Regulatory Strategy’, Virginia Journal of International Law, 51, 3, 2011, 637–696 (hereafter Lin, ‘Exploring’).
Organisation (wto) and leading organisations which set food safety standards. The discussion here emphasises the history, structure, functions, and norma- tive roles of each institution, its relations with other international, inter- governmental or other organisations and its relations if any with China before and after the melamine crisis. The chapter argues that the melamine crisis was a watershed in China’s links with international food safety institutions. It resulted in a dramatic increase in relations between China and other sites involved in food safety regulation, and these relations in turn have supported and reinforced the transnationalisation of Chinese food safety regime. The chapter thus lays a foundation for the subsequent discussion of the use of international standards in wto dispute settlement, the role of the wto in the globalization of national food safety standards and relations between the wto and China with regard to food safety. With this later analysis of relations between the wto and China, we return full circle to the process of the transna- tionalisation of Chinese food safety law.
Food and Agriculture Organisation (fao)
The Food and Agriculture Organisation (fao) is a United Nations agency established in 1945 and based in Rome, Italy.5 It has 145 member states, the European Union is a ‘member organisation’ and the Faroe Islands and Tokelau are associate members.6 Its remit concerns essentially food security, namely whether people have enough food to eat.7 Food safety was implicit in early fao thinking but later was abandoned in favour of an economic model based on
5 See the fao website at www.fao.org, last visited 2 January 2015. Among many studies of the Rome-based agencies, see Ross B. Talbot, The Four World Food Agencies in Rome (Ames: Iowa State University Press, 1990); Ross B. Talbot, Historical Dictionary of the International Food Agencies: fao, wfp, wfc, ifad (Metuchen, n.j. and London: The Scarecrow Press, Inc., 1994). See also Francis Snyder (ed), International Food Security and Global Legal Pluralism / Sécurité alimentaire internationale et pluralisme juridique mondial (Brussels: Bruylant, 2004). 6 Food and Agriculture Organisation of the United Nations, ‘Countries’, available at http:// www.fao.org/countryprofiles/en/, last visited 2 January 2015; Wikipedia, ‘Food and Agriculture Organisation’, available at http://en.wikipedia.org/wiki/Food_and_Agriculture_Organisation, last accessed 2 January 2015. 7 The remainder of this paragraph is drawn largely from Francis Snyder, ‘Toward an International Law for Adequate Food’, in Mahiou and Snyder Food Safety, supra Chapter 2 note 7 pp. 80–163 at 121–122 (hereafter Snyder, ‘Adequate Food’).
the important role of Codex Alimentarius, the International Plant Protection Convention (ippc) and the Office International des Epizooties (oie, now International Organisation for Animal Health) to provide effective, science-based, internationally-accepted standards of food safety, plant and animal health, as well as to facilitate international food and agricultural trade in their role as the wto Agreement on Sanitary and Phytosanitary Measures (sps)-recognised standard-setting bodies.10
It pledged to continue to strengthen the capacity of developing countries to manage food safety and plant and animal health.11 An fao report in 2001 on ethical issues in food and agriculture explicitly noted that ‘[a]chieving food
8 See eg Alex F. McCalla and Cesar L. Revoredo, Prospects for Global Food Security: A Critical Appraisal of Past Projects and Predictions (Food, Agricultural, and the Environment Discussion Paper 35, International Food Policy Research Institute, Washington, d.c., 2001), p. 14. 9 World Food Summit Plan of Action, World Food Summit, Rome, Italy, 13–17 November 1996, http://www.fao.org/docrep/003/w3613e/w3613e00.htm. 10 On this relationship, see Terence P. Stewart and David S. Johanson, ‘The sps Agreement of the World Trade Organisation and International Organisations: The Roles of the Codex Alimentarius Commission, the International Plant Protection Convention, and the International Office of Epizootics’, Syracuse Journal of International Law and Commerce, 26, 1998, pp. 27–53. 11 Food and Agriculture Organisation of the United Nations, Report of the World Food Summit: Five Years Later, Part One: Appendix: Declaration of the World Food Summit: Five Years Later, Rome, 10–13 June 2002 (Rome: fao, 2002), paragraphs 14, 16, 17, available at http://www.fao.org/DOCREP/MEETING/005/Y7106E/Y7106E.htm#TopOfPage.
World Health Organisation (who)
Structure The World Health Organisation (who) is a United Nations organisation based in Geneva, Switzerland. According to the who website, the who ‘is the directing and coordinating authority for health within the United Nations system’.13 Its responsibilities include ‘providing leadership on global health matters, shaping the health research agenda, setting norms and standards, articulating evidence-based policy options, providing technical support to countries and monitoring and assessing health trends. In the 21st century, health is a shared responsibility, involving equitable access to essential care and collective defence against transnational threats’.14 The who Constitution was adopted by the World Health Conference which was held in New York from 19 June to 22 July 1946. It was signed on 22 July 1946 by representatives of 61 States and came into force on 7 April 1948.15 Now the wto staff includes more than 7000 people from more than 150 countries. They are dispersed among the Geneva headquarters, six regional offices and 150 wto offices situated in the territories of different members.16 Today the who includes 194 Member Countries.17 Membership in the who is open only to States.18 un Members which accept the who constitution auto- matically become members of the who.19 The main who organ, the World Health Assembly (wha), may, acting by simple majority vote, admit other countries which apply for membership.20 Territories or groups of territories
12 fao, Ethical Issues in Food and Agriculture (Food and Agricultural Organisation of the United Nations, Rome, 2001), isbn 9251045593, http://www.fao.org/DOCREP/003/ X9601E/X9601E00.HTM. 13 http://www.who.int/about/en/ (last visited: 04/06/2012). 14 http://www.who.int/about/en/ (last visited: 04/06/2012). 15 who Constitution,14 unts 185, available at http://apps.who.int/gb/bd/PDF/bd47/EN/ constitution-en.pdf, last accessed 4 March 2012 (hereafter who Constitution). 16 http://www.who.int/about/structure/en/ (last accessed October 2, 2014). 17 http://www.who.int/governance/en/index.html, last accessed 4 March 2012. 18 who Constitution, supra note 15, Article 3. 19 Ibid., Article 8. 20 Ibid., Article 8.
Relations The objective of the who is ‘the attainment by all peoples of the highest pos- sible level of health’.26 For this purpose, its functions include establishing and maintaining effective collaboration with the un, specialized agencies and other organisations and groups, proposing conventions, agreements and regu- lations and making recommendations about international health matters, and developing, establishing and promoting international standards regarding food and other products.27 Under Article 19 of the who Constitution, the wha has authority to adopt conventions or agreements regarding any matter within who competence, including food. Such conventions or agreements are adopted by a two-thirds vote of the wha and come into force for each Member when accepted by that Member according to its own constitutional processes.28 Members undertake
21 Ibid., Article 8. Application for membership must be made by the Member or other authority responsible for the territory’s international relations: see. http://www.who.int/ countries/en/, last accessed 2 January 2015. 22 http://www.who.int/about/regions/en/ (last accessed October 2, 2014). 23 who Constitution, supra note 15, Article 9. 24 Ibid., Article 24. 25 Ibid., Article 38. 26 Ibid., Article 1. 27 Ibid., Article 2 (b), (h) and (u), respectively. 28 Ibid., Article 19.
29 Ibid., Article 20. 30 Ibid., Article 21(d). 31 Ibid., Article 22. 32 Ibid., Article 23. 33 Such arrangements are expressly included in its functions: see ibid., Article 2(b). 34 Ibid., Article 18(h). 35 Agreement between the World Health Organisation (who) and the Office International des Epizooties (oie) adopted by the who and the oie on 16 December 2004, available at http://www.oie.int/en/about-us/key-texts/cooperation-agreements/agreement-with -the-world-health-organisation-who/, last accessed 2 January 2015. 36 World Health Organisation, Basic Documents, forty-seventh edition including amendments adopted up to 31 May 2009 (World Health Organisation, 2009 [out of print]), pp. 54–57, con- tents available at http://apps.who.int/gb/bd/PDF/bd47/EN/cover-and-contents-en.pdf, last accessed 2 January 2015; full text available at https://books.google.fr/books?id=EYFLlGH3wv AC&pg=&lpg=PR3&dq=agreement+between+world+health+organisation+and+food+and +agriculture+organisation&source=bl&ots=ibdFrZDUZZ&sig=xs_lvvWdWPC-ms3wX2oO wZiNV3M&hl=fr&sa=X&ei=TommVPi4GMTTaMTmgJgP&ved=0CGoQ6AEwCA#v=onepa ge&q=agreement%20between%20world%20health%20organisation%20and%20food %20and%20agriculture%20organisation&f=false, last accessed 2 January 2015. On early implementation, see United Nations, World Health Organisation, Executive Board, Second Session, Implementation of the Agreement with the Food and Agriculture Organisation, Report of the Director-General, EB2/64, 25 October 1049, available at http://apps.who.int/ iris/bitstream/10665/112963/1/EB2_64_eng.pdf?ua=1, last visited 5 January 20115.
The who-oie Agreement provides for cooperation in matters of common interest such as information about foodborne disease outbreaks, organisation of meetings and promotion and coordination of research on food safety; exchange of resolutions and recommendations; non-voting participation in meetings; and sharing of experts, joint organisation of meetings and joint training.37 Broadly similar provisions are found in the who-fao Agreement, which also provides in particular for joint committees.38 Examples include the Joint fao/who Expert Committee on Food Additives (jecfa); the Joint fao/who Meeting on Pesticide Residues (jmpr); and the Joint fao/who Expert Meetings on Microbiological Risk Assessment (jemra). Chapter 16 of the who Constitution deals with relations with other organ- isations. The who is a specialized agency of the un.39 By approval of two-thirds of the Members of the wha, it may establish relations and forms of coopera- tion with any other inter-governmental organisations.40 It may also make arrangements for consultation and cooperation with non-governmental inter- national organisations or with national, governmental or non-governmental organisations: arrangements with the last three types depend on consent of the Government concerned.41 In addition, by two-third votes of the wha, it ‘may take over from any other international organisation or agency whose purpose and activities lie within the field of competence of the Organisation such functions, resources and obligations as may be conferred upon the Organisation by international agreement or by mutually acceptable arrange- ments entered into between the competent authorities of the respective organisations’.42 The World Health Organisation (who) Constitution of 194843 requires the who to assist governments in strengthening health services relating to food safety, promote improved nutrition, sanitation and other aspects of environmental hygiene, develop international standards for food and assist
37 Agreement between the World Health Organisation (who) and the Office International des Epizooties (oie) adopted by the who and the oie on 16 December 2004, available at http://www.oie.int/en/about-us/key-texts/cooperation-agreements/agreement-with -the-world-health-organisation-who/, last accessed 2 January 2015. 38 Agreement between the Food and Agriculture Organisation of the United Nations and the World Health Organisation, in World Health Organisation, Basic Documents, Forty- seventh Edition, available at http://apps.who.int/gb/bd/, last accessed 5 January 2015. 39 who Constitution, supra note 15, Article 69 ; un Charter, Article 57. 40 Ibid., Article 70. 41 Ibid., Article 71. 42 Ibid., Article 72. 43 This paragraph is drawn from Snyder, ‘Adequate Food’, supra note 7, pp. 96–97.
44 who Constitution, supra note 15. See also Kelley Lee, Historical Dictionary of who (London: The Scarecrow Press, 1998). 45 who-unicef, International Code of Marketing of Breast-milk Substitutes, Article 10.2, Geneva: World Health Organisation, 1981), available at http://www.who.int/nut/documents/ code_english.PDF, visited 10 November 2003. See also Sami Shubber, The International Code of Marketing of Breast-Milk Substitutes: An International Measure to Protect and Promote Breast-Feeding (The Hague, London, Boston: Kluwer Law International, 1998). 46 World Health Organisation, Guidelines for Drinking Water Quality, fourth edition, avail- able at http://www.who.int/water_sanitation_health/publications/2011/dwq_guidelines/ en/, last accessed 2 January 2015. 47 who, Global Database on National Nutrition Policies and Programme, available at http://www.who.int/nut/db_pol.htm, visited 10 November 2003. 48 International Conference on Nutrition, World Declaration and Plan of Action for Nutrition, Rome, December 1992, available at http://www.who.int/nut/documents/icn _declaration.pdf, visited 10 November 2003. 49 World Health Organisation, ‘Food Safety and Globalization of Trade in Food: A Challenge to the Public Health Sector’ (WHO/FSF/FOS/97.8.Rev.1) (Geneva: World Health Organisation, Programme of Food Safety and Food Aid, Food Safety Unit, 1997), available at, visited 10 November 2003. 50 World Health Organisation, ‘who Infection Control Guidelines for Transmissible Spongiform Encephalopathies. Report of a who Consultation’, Geneva, Switzerland,
In May 2000,51 the 53rd wha called on the who Director-General to give greater emphasis to food safety, in conjunction with other organisations such as the fao and Codex, and ‘to work towards integrating food safety as one of who’s essential public health functions, with the goal of developing sustainable, inte- grated food safety systems for the reduction of health risk along the entire food chain, from the primary producer to the consumer’.52 Consequently, in 2002, the who drew up a Global Food Safety Strategy to reduce the health and social bur- den of foodbourne disease. This included strengthening surveillance systems of foodbourne diseases, improving risk assessments, developing methods for assessing the safety of the products of new technologies, enhancing the scientific and public health role of who in Codex, enhancing risk communication and advocacy, improving international and national cooperation and strengthening capacity building in developing countries.53 Since 2002, the who has been active in developing policies to combat obesity.54 Together with the fao, the who recently organized an electronic forum to improve the decision process of Codex Alimentarius. Items for discussion included basic principles underlying the provision of scientific advice, transparency, and process and content, such as working procedures based on best practices to produce scientific advice, accessing best data and ensuring effective management, and enhancing the role of developing countries in the development of scientific advice, enhancing communication, promote discussion about how best to provide scientific advice to Codex Alimentarius and how the processes involved might be improved.55 More recently, the wha in May 2010 approved a new resolution on ‘Advancing food safety initiatives’, which was used to update the Global
23–26 March 1999 (WHO/CDS/CSR/APH/2000/3), available at http://www.who.int/csr/ resources/publications/bse/WHO_CDS_CSR_APH_2000_3/en/, visited 10 November 2003. 51 This paragraph is drawn from Snyder, ‘Adequate Food’, supra note 7, pp. 97–98. 52 World Health Organisation, ‘Food Safety’, who Fifty-Third World Health Assembly, Eighth Plenary Meeting, 20 May 2000, Agenda item 12.3, WHA53.15, available at http://www.who .int/gb/EB_WHA/PDF/WHA53/ResWHA53/15.pdf, visited 10 November 2003. 53 See World Health Organisation, who Global Strategy for Food Safety: Safer Food for Better Health (Geneva: World Health Organisation, 2002), available at http://www.who .int/foodsafety/publications/general/global_strategy/en/, visited 10 November 2003. 54 See World Health Organisation, ‘Diet, Nutrition and the Prevention of Diseases’, Report of a Joint fao/who Expert Consultation, (Geneva, 28 January – 1 February 2002), who Technical Report Series No. 916 (Geneva: World Health Organisation, 2003, available at http://www.who.int/nut/documents/trs_916.pdf, visited 10 November 2003. 55 See World Health Organisation, Consultative Process on Scientific Advice, fao/who Electronic Forum on the provision of scientific advice to Codex Alimentarius, 1 October – 14 November 2003, available at http://www.who.int/foodsafety/codex/consult/en/print .html, visited 10 November 2003.
Strategy for Food Safety.56 In addition, the who Department of Food Safety and Zoonoses (fos) cooperates with who regional and country offices to help members to develop food safety policies and implement risk-based foodborne disease surveillance, prevention and control programs.57 It promotes science- based food safety measures, collaboration among who members and the development of risk-based and integrated national food safety regimes.58 The specific areas of work of fos comprise foodborne diseases; food hygiene; food technologies; microbiological risks; chemical risks; international food stan- dards (Codex Alimentarius); international food safety authorities network (infosan); antimicrobial resistance; and zoonoses and the environment; and nutrition and food security.59 In addition to fos, the who has three more food-safety programs. They are Foodborne Disease Surveillance,60 Foodborne trematode infections,61 and Global Foodborne Infections Network (gfn).62 For the future, the who Strategic Plan for Food Safety of 201463 is intended to provide ‘a coherent framework for taking action on priority issues in the area of food safety and foodborne zoonoses for the period 2013–2022,and forms the basis of the who Twelfth General Programme of Work (2014–2019) for the pro- gram area food safety in Category 5 [preparedness, surveillance and response in emergencies]’.64 The Plan covers “food safety in all ramifications, encompassing
56 World Health Organisation, Food Safety Programme, who Global Strategy for Food Safety (who, 2002), available at http://apps.who.int/iris/bitstream/10665/42559/1/9241545747 .pdf?ua=1, last accessed 2 January 2015. On implementation as of 2009, see World Health Organisation, International Food Safety Authorities Network (infosan), Implementation of the wto Global Strategy for Food Safety, 6 May 2009, available at http://www.who.int/ foodsafety/fs_management/No_03_strategy_may09_en.pdf, last accessed 2 January 2015. 57 http://www.who.int/foodsafety/about/FOS-brochure.pdf?ua=1 (last visited October 2, 2014). 58 http://www.who.int/foodsafety/about/FOS-brochure.pdf?ua=1, last accessed 2 October 2014. 59 World Health Organisation, Food Safety, Areas of Work, available at http://www.who.int/ foodsafety/areas_work/en/ , last accessed 2 January 2015. 60 World Health Organisation, Food Safety, ‘Foodborne Diseases’, available at http://www .who.int/foodborne_disease/en/ (last accessed 2 October 2014). 61 World Health Organisation, ‘Foodborne Trematode Infections’, available at http://www .who.int/foodborne_trematode_infections/en/ (last accessed 2October 2014). 62 World Health Organisation, Global Foodborne Diseases Network, ‘About the Global Foodborne Diseases Network’, available at http://www.who.int/gfn/supported/en/ (last accessed 2 October 2014). 63 World Health Organisation, Advancing food safety initiatives: strategic plan for food safety including foodborne zoonoses 2013–2022 (who, 2014),available at http://www .who.int/foodsafety/publications/strategic-plan/en/, last accessed 2 January 2015. 64 World Health Organisation, Advancing food safety initiatives: strategic plan for food safety including foodborne zoonoses 2013–2022 (who, 2014),available at http://www .who.int/foodsafety/publications/strategic-plan/en/, last accessed 2 January 2015. On the
International Food Safety Authorities Network (infosan)
Structure Another joint initiative of who and fao is the International Food Safety Authorities Network (infosan).69 Following World Health Assembly
programmatic categories of work, see World Health Organisation, Sixty-Sixth World Health Assembly, Provisional agenda item 12.2, Draft Twelfth General Programme of Work, A66/6, 19 April 2013, p. 33, available at http://apps.who.int/gb/ebwha/pdf_files/ WHA66/A66_6-en.pdf?ua=1, last accessed 2 January 2015. 65 World Health Organisation, ‘Advancing Food Safety Initiaties: Strategic Plan for Food Safety including Foodborn Zoonoses, 2013–2022’, available at http://www.who.int/ foodsafety/publications/strategic-plan/en/, last accessed 2 October 2014. 66 World Health Organisation, Regional Office for South-East Asia, Regional Consultation on Food-Based Dietary Guidelines for countries in the Asia Region (World Health Organisation, 2011), available at http://www.searo.who.int/entity/foodsafety/documents/ sea_nut_180/en/, last accessed 2 January 2015. The Consultation included Bangladesh, Bhutan, Cambodia, the Democratic People’s Republic of Korea, India, Indonesia, Lao People’s Democratic Republic, Maldives, Malaysia, Myanmar, Nepal, Philippines, Sri Lanka, Thailand, Timor-Leste and Viet Nam. It did not include China. 67 World Health Organisation, Regional Office for South-East Asia, Food and Agriculture Organisation for Asia and the Pacific and Institute of Nutrition, Mahidol University, Thailand, Regional Consultation on Safe Street Foods, Bangkok, Thailand, 20–23 June 2011 (World Health Organisation, 2012), available at http://www.fao.org/3/a-an037e.pdf, last accessed 2 January 2015. 68 On this debate, see Lin, ‘Exploring’, supra note 4, at 682. 69 World Health Organisation, International Food Safety Network (infosan), http://www .who.int/foodsafety/areas_work/infosan/en/, last accessed 6 January 2015. See also the
infosan Users Manual [French version] Réseau international des autorités de sécurité alimentaire des aliments (infosan) – Guide de l’utilisateur (Octobre 2006), available at http://www.who.int/foodsafety/publications/fs_management/INFOSAN_User_Guide _Final_fr.pdf?ua=1, last accessed 6 January 2015. 70 infosan Users Manual [French version] Rèseau international des autorités de sécurité alimentaire des aliments (infosan) – Guide de l’utilisateur (Octobre 2006), available at http://www.who.int/foodsafety/publications/fs_management/INFOSAN_User_Guide _Final_fr.pdf?ua=1, last accessed 6 January 2015 ; extract from English version of User Manual, Table 3, at http://www.ecdc.europa.eu/en/healthtopics/food_and_waterborne_ disease/toolkit/Documents/Infosan_Technical-Guidance-Document.pdf , last accessed 6 January 2015; Jenny Bishop and Carmen Savelli, ‘infosan: International Food Safety Network’ (World Health Organisation), p. 3, available at http://foodsafetyasiapacific.net/ ONGOING/OngoingWS/2WS/presentation/6-2.pdf, last accessed 6 January 2015. 71 World Health Organisation, The International Food Safety Authorities Network, available at http://www.who.int/foodsafety/fs_management/infosan_brochure_en.pdf?ua=1, last accessed 5 January 2015. 72 Chan et al., Global Governance, supra Chapter 3 note 174, p. 134. 73 World Health Organisation, The International Food Safety Authorities Network, available at http://www.who.int/foodsafety/fs_management/infosan_brochure_en.pdf?ua=1, last accessed 5 January 2015. 74 Chan et al., Global Governance, supra Chapter 3 note 174, p. 134.
Points,75 which may be concerned with different aspects of food safety, such as agriculture, health, veterinary services, fisheries, trade or standards.76 The Focal Points are responsible for receiving and disseminating the Information Notes and Messages published by infosan, providing com- ments to infosan if necessary and communicating with other infosan Members with regard to their specific field of activity.77
Relations infosan is an international network. By definition it comprises relations between the Secretariat and Members and between Members themselves. Its activities focus on developing and enhancing relations among Members through the infosan Secretariat.78 For example, the infosan Information Notes summarising food safety issues are published in the six who official languages, which are Arabic, Chinese, English, French, Russian and Spanish.79 infosan also provides Guidance on response to and management of food safety emergencies.80
75 World Health Organisation, The International Food Safety Authorities Network, available at http://www.who.int/foodsafety/fs_management/infosan_brochure_en.pdf?ua=1, last accessed 5 January 2015. 76 See the diagram in Jenny Bishop and Carmen Savelli, ‘infosan: International Food Safety Network’ (World Health Organisation), p. 6, available at http://foodsafetyasiapacific.net/ ONGOING/OngoingWS/2WS/presentation/6-2.pdf, last accessed 6 January 2015. 77 World Health Organisation, The International Food Safety Authorities Network, available at http://www.who.int/foodsafety/fs_management/infosan_brochure_en.pdf?ua=1, last visited 23 January 2015. 78 A detailed presentation of recent activities may be found in International Food Safety Author ities Network (infosan), infosan Activity Report 2011–2012 (World Health Organisation, Food and Agriculture Organisation of the United Nations, 2013), available at http://apps.who .int/iris/bitstream/10665/85360/1/9789241505505_eng.pdf?ua=1, last accessed 6 January 2015. 79 World Health Organisation, Multilingualism and the who, available at http://www.who .int/about/multilingualism/en/, last accessed 6 January 2015, which states that this policy of multilingualism was established by a World Health Assembly resolution in 1978 and that, following a 1988 resolution, all Governing body documents are available online in these official languages. 80 The International Food Safety Authorities Network, ‘What is INFOSAN?’ available at http:// www.who.int/foodsafety/fs_management/infosan_brochure_en.pdf, last accessed 65 January 2015. For an example, see ‘Table 3 Information Patterns Used to Classify infosan Emergencies’, available at http://www.ecdc.europa.eu/en/healthtopics/food_and_waterborne_disease/toolkit/ Documents/Infosan_Technical-Guidance-Document.pdf, last accessed 6 January 2015.
Other infosan activities seek to develop specific types of collaborative partnerships.81 infosan works together with the wto Global Foodbourne Infections Network (gfn) to provide training on how to report food safety events internationally.82 In China, there are forty gfn Members, including the Ministry of Health, national and provincial centres for disease control and pre- vention, epidemic prevention stations, specialized universities and research institutes, a hospital, a bio-pharmaceutical company and the Institute for Food Safety and Nutrition of the Centre for Disease Control (cdc) in Beijing and the Institute for Food Safety Control and Inspection of the Ministry of Health, also in Beijing.83 It cooperates with the who Alert and Response Operations pro- gramme to monitor international food safety incidents.84 infosan also works within the framework of the 2005 International Health Regulations (ihr)85 to help identify, assess and manage food safety incidents with international impli- cations. The 2005 ihr provide a framework for prevention and management of international public health risks which is legally binding for all Members of the who. With regard to international health emergencies, infosan acts in part- nership with the Global Outbreak and Response Network (goarn).86 It also
81 This paragraph is based mainly on Jenny Bishop and Carmen Savelli, ‘infosan: International Food Safety Network’ (World Health Organisation), p. 6, available at http:// foodsafetyasiapacific.net/ONGOING/OngoingWS/2WS/presentation/6-2.pdf, last accessed 6 January 2015; and Gyanendra Gongal [Scientist (vph), Disease Surveillance and Epidemiology, who Regional Office for South East Asia, New Delhi], ‘International Food Safety Authorities Network (infosan)’, fao rap and Quality Council of India (qci), Technical Training on Risk Analysis for saarc Countries, Delhi, India, 17–21 June 2013, http://www.fao.org/fileadmin/templates/rap/files/meetings/2013/130617_6.3.pdf, last accessed 6 January 2015. 82 On the gfn, see World Health Organisation, Global Foodbourne Infections Network (gfn), available at http://www.who.int/gfn/en/, last accessed 6 January 2015. On the gfn database, see World Health Organisation, gfn Country Databank, available at http://thor .dfvf.dk/portal/page?_pageid=53,1&_dad=portal&_schema=PORTAL, last accessed 6 January 2015. 83 World Health Organisation, Overview of gfn Members, available at http://thor.dfvf.dk/ pls/portal/GSS.ALL_GSS_MEMBERS_TEST_REP.show, last accessed 6 January 2015. 84 World Health Organisation, Global Alert and Response (gar), available at http://www .who.int/csr/en/, last accessed 6 January 2015. 85 World Health Organisation, International Health Regulations (2005), Second Edition (who, Geneva, 2008), available at http://whqlibdoc.who.int/publications/2008/9789241580410 _eng.pdf?ua=1, last accessed 6 January 2015. 86 World Health Organisation, Global Outbreak and Response Network, http://www.who .int/csr/outbreaknetwork/en/, last accessed 6 January 2015. For guiding principles, see
World Health Organisation, Global Alert and Response (gar), Guiding Principles for International Outbreak Alert and Reponse, available at http://www.who.int/csr/ outbreaknetwork/guidingprinciples/en/, last accessed 6 January 2015. 87 Global Early Warning System (glews), available at http://www.glews.net/, last accessed 6 January 2015. 88 World Health Organisation, International Health Regulations (2005), Second Edition, Article 6(1), (who, Geneva, 2008), available at http://whqlibdoc.who.int/publications/2008/ 9789241580410_eng.pdf?ua=1, last accessed 6 January 2015. Lin notes that the requirement to notify and the potentially flexible interpretation of pheic prevent infosan from being as effective as it might otherwise be: Lin, ‘Exploring’, supra note 4, at 680–681. 89 Chan et al., Global Governance, supra Chapter 3 note 174 p. 116; World Health Organisation, ‘Transcript of who Podcast – 9 October 2008, who update on the situation of melamine in baby food in China’, available at http://www.who.int/mediacentre/multimedia/ podcasts/2008/transcript_49/en/, last accessed 6 January 2015. 90 See baha, ‘Belize Agricultural Health Authority and Ministry of Health Advise Consumers that Milk and Milk Products Originating from China May Be Contaminated with Melamine’, Belmopan, Belize, 24 September 2008, available at http://www.baha.bz/press _releases/2008/Melamine_Milk_China_Public_Advisory%20%28Sep%2025%2008%29 .pdf, last accessed 6 January 2015 (hereafter baha, ‘Advise’). 91 Chan et al., Global Governance, supra Chapter 3 note 174 p. 136. 92 World Health Organisation, Alert, Response and Capacity-Building under the International Health Regulations (ihr), ‘What’s new in risk and disease control?’ ihr
World Trade Organisation (wto)
Structure The World Trade Organisation (wto) plays a leading role in international and transnational food safety regulation today.95 The three most important wto agreements regarding food safety are the gatt, Agreement on Sanitary and Phytosanitary Measures (sps Agreement) and the Agreement on Technical Barriers to Trade (tbt Agreement). The following paragraphs briefly intro- duce the gatt, the sps Agreement and the tbt Agreement and then focus mainly on the sps Agreement. Relations between the wto and international standards bodies, relations between wto Members in the context of wto disputes about food safety and the role of the wto Trade Policy Review Mechanism (tprm) in monitoring food safety regulation in China are con- sidered in subsequent chapters. gatt 199496 contains several provisions of special relevance to food safety regulation. Non-discrimination is a basic principle of gatt. It is expressed in
News, 5, 15 December 2008, available at http://www.who.int/ihr/ihrnews/ihrnewsissue5/ en/index2.html, last accessed 6 January 2015. 93 baha, ‘Advise’, supra note 1161. 94 World Health Organisation, ‘Transcript of who Podcast – 9 October 2008, who update on the situation of melamine in baby food in China’, [Interview by Veronica Riemer with Dr Jorgen Schlundt, then Director of the who Food Safety Department, recently returned from Beijing to Geneva], available at http://www.who.int/mediacentre/multimedia/ podcasts/2008/transcript_49/en/, last accessed 6 January 2015. 95 This section is drawn mainly from Snyder ‘Adequate Food’, supra note 7, pp. 80–163. 96 gatt 1994 includes gatt 1947 as well as other agreements. See General Agreement on Tariffs and Trade (gatt 1994) in World Trade Organisation, The Results of the Uruguay Round Multilateral Trade Negotiations: The Legal Texts (Geneva: gatt Secretariat, 1995), pp. 17–32. Consequently, the articles referred to here have the same numbers in gatt 1994 and gatt 1947 (hereafter gatt 1947).
97 Ibid., Article i. 98 Ibid., Article iii. 99 Ibid., Article ii. 100 Ibid., Article xi. 101 Ibid., Article xi:2(a). 102 Ibid., Article xi:2(b). 103 Ibid., Article xi:2(c). 104 Ibid., Article xx(b). 105 Ibid., Article xxiv. 106 gats, Article xiv (b).
(gis).107 gis are defined as ‘indications which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin’.108 Wines and spirits benefit from additional protection.109 The sps Agreement applies to sanitary and phytosanitary measures which may affect international trade.110 Under the sps Agreement, such measures which conform to international standards, guidelines or recommendations are deemed to be consistent with the sps Agreement and gatt 1994.111 Members have a right to take sanitary and phytosanitary measures necessary for the pro- tection of human, animal or plant life or health, provided that the measures are not inconsistent with the Agreement.112 They are expected to base their national standards on international standards, where such exist, but they may set higher standards subject to specified conditions. Members are expected, within the limits of their resources, to promote the development and periodic review of standards in relevant international organisations, specifically the Codex Alimentarius Commission, the International Office of Epizootics (ioe) and regional organisations within the framework of the International Plant Protection Convention.113 The tbt Agreement applies to technical regulations, standards (for exam- ple, for packaging, marking and labelling) and conformity assessment proce- dures, including those for agricultural products,114 but not to sanitary and phytosanitary measures as defined in the sps Agreement.115 Under the tbt Agreement, a technical regulation which is prepared, adopted or applied for an objective recognised by the Agreement as legitimate, and which is in accor- dance with relevant international standards, is rebuttably presumed not to
107 trips, Article 22(2). 108 Ibid., Article 22(1). 109 Ibid., Article 23. 110 sps Agreement, supra Chapter 4 note 4, Article 1, Annex A sps.Article 1.4 provides that nothing in the sps Agreement shall affect the right of Members under the tbt Agreement with respect to measures not within the scope of the sps Agreement. Much of the remain- der of this section is drawn from Snyder, ‘Adequate Food’, supra note 7, pp. 123–129. 111 sps Agreement, supra note 762, Article 3.2. 112 Ibid., Article 2.1. 113 Ibid., Article 3.4. 114 tbt Agreement, supra Chapter 4 note 6, Article 1.2, Article 1.3 and Annex 1Terms and their Definitions for the Purpose of this Agreement, 1:Technical regulation, 2: Standard, 3: Conformity assessment procedures. 115 Ibid., Article 1.5.
(a) to protect animal or plant life or health within the territory of the Member from risks arising from the entry, establishment or spread of pests, dis- eases, disease-carrying organisms or disease-causing organisms; (b) to protect human or animal life or health within the territory of the Member from risks arising from additives, contaminants, toxins or disease- causing organisms in foods, beverages or feedstuffs; (c) to protect human life or health within the territory of the Member from risks arising from diseases carried by animals, plants or products there- fore, or from the entry, establishment or spread of pests; or (d) to prevent or limit other damage within the territory of the Member from the entry, establishment or spread of pests.121
The sps Agreement provides for general principles, basic rights and obliga- tions, harmonisation and equivalence of measures, assessment of risk and determination of the appropriate level of protection and other matters concerning sps measures. Under the sps Agreement, Members have a right to take sanitary and phyto- sanitary measures necessary for the protection of human, animal or plant life or health, provided that the measures are not inconsistent with the Agreement.122
116 Ibid., Article 2.5. 117 Ibid., Annex 3. 118 Ibid., Article 2.6. 119 sps Agreement, supra Chapter 4 note 4, Preamble 4th recital. 120 Ibid., Article 1.1. 121 Ibid., Annex A: Definitions (1). 122 Ibid., Article 2.1.
They must ensure that any measure is applied only to the extent necessary to protect human, animal or plant life or health, is based on scientific principles and is not maintained without sufficient scientific evidence, except in specified cases.123 Such measures must not arbitrarily or unjustifiably discriminate against Members or constitute a disguised restriction on international trade.124 Measures conforming to the Agreement are deemed to be consistent with gatt 1994, especially Article xx(b),125 which entitles wto Members to adopt or enforce any measures necessary to protect human, animal or plant life or health so long as the measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail or a disguised restriction on international trade.126 The sps Agreement requires wto Members to base their sanitary and phyto- sanitary measures on international standards, guidelines or recommendations, where they exist.127 Members may introduce or maintain measures resulting in a higher level of protection in two circumstances: if there is a scientific justifica- tion, or as a consequence of the level of protection a Member determines to be appropriate following an appropriate risk assessment and according to the prin- ciples of non-discrimination and proportionality.128 ‘Risk assessment’ means an evaluation of the likelihood of entry, establishment or spread of a pest or disease within the Member’s territory and the associated potential biological and eco- nomic consequences, or the evaluation of the potential for adverse effects on human and animal health arising from the presence of additives, contaminants, toxins or disease-causing organisms in food, beverages or feedstuffs.129 Two other provisions of the sps Agreement are crucial aspects of contempo- rary international food safety regulation; both are subject to continuing discus- sion and debate. The first concerns the notion of equivalence. wto Members are required to accept sps measures of other Members as equivalent, even if these measures differ from their own or from those used by other Members regarding the same product, subject to one condition. The exporting Member must dem- onstrate to the importing Member that its measures achieve the importing Member’s appropriate level of sanitary or phytosanitary protection.130
123 Ibid., Article 2.2. The specific cases are set down in ibid., Article 5.7, discussed later. 124 Ibid., Article 2.3. 125 Ibid., Article 2.4. 126 gatt 1947, supra note 96, Article xx(b). 127 sps Agreement, supra Chapter 4 note 4, Article 3.1. 128 Ibid., Article 3.3 and Article 5. 129 Ibid., Annex A: Definitions, (4). 130 Ibid., Article 4.1.
The second provision concerns the precautionary principle. Article 5.7 sps provides that ‘In cases where relevant scientific evidence is insufficient, a Member may provisionally adopt sanitary or phytosanitary measures on the basis of the available pertinent information, including that from the relevant international organisations as well as from sanitary or phytosanitary measures applied by other Members. In such circumstances, Members shall seek to obtain the additional information necessary for a more objective assessment of risk and review the sanitary or phytosanitary measure accordingly within a reasonable period of time’.131 While the sps Agreement does not affirm the precautionary principle expressly, it thus permits wto Members to adopt pro- visional preventative measures subject to certain conditions, albeit only as temporary measures. These obligations apply to all wto Members. Developing countries benefit, in principle, from special and differential treatment (sdt), such as longer time-frames for compliance and time-limited exceptions, in whole or in part, from sps obligations, taking into account financial, trade and development needs.132 In practice, however, the meaning of sdt is not yet clearly spelled out. In any case, regardless of the potential impact of sdt on the regulation of food for domestic consumption, developing countries so far are obliged in effect to comply with international standards, or the standards of importing countries, if they wish to export their food and agricultural products. It should be noted that China is not classified as a developing country within the wto system.
Relations The wto has many types of relations of cooperation and collaboration, not only with its Members but also with numerous international organisations. It has agreements with oie, unctad, fao and Codex and informal Working Arrangements with who, ilo and oecd. It also has, or envisages, relations with ngos and private standards bodies, among others. I have dealt with wto relations with other sites of governance elsewhere,133 so they are not discussed in detail here. In addition, the standards of international standards-setting
131 Ibid., Article 5.7. 132 Ibid., Article 10. Least-developed countries were entitled to delay application of the sps Agreement for five years following its entry into force, while other developing countries could delay application for two years where application was prevented by lack of technical expertise, technical infrastructure or resources: Ibid., Article 14. 133 Snyder, Legal Pluralism, supra Chapter 2 note 7, Chapter 10: ‘Social Solidarity Ethics and the wto: Toward Closer Relations between Sites of Governance’, pp. 381–423.
134 United Nations General Assembly, Resolution 39/348, ‘Consumer protection’ (A/RES/39.248, 16 April 1985), available at http://www.un.org/documents/ga/res/39/a39r248.htm. 135 On the relationship between the sps and tbt Agreements, see Gabrielle Marceau and Joel P. Trachtman, ‘The Technical Barriers to Trade Agreement, the Sanitary and Phytosanitary Measures Agreement, and the General Agreement on Tariffs and Trade: A Map of the World Trade Organisation Law of Domestic Regulation of Goods’, Journal of World Trade, 36, 5, 2002, pp. 811–881. For the practical administration implementation of the distinction in apec countries, see Asia-Pacific Economic Cooperation, 2002 apec Handbook on Notification Authorities and National Entry Points under the Technical Barriers to Trade and Sanitary and Phytosanitary Agreements of the World Trade Organisation (APEC SCSC CT1 27/2001) (Pre-endorsed draft, February 2002), visited 1 November 2003. 136 On the application of sps to citrus fruits, see João Magalhães, ‘Sanitary and phytosanitary issues and the sps Agreement’, China/fao Citrus Symposium, Beijing, 14–17 May 2001, available at http://www.fao.org/docrep/003/x6732e/x6732e13.htm, last accessed 28 October 2012. 137 ec – Hormones, ab Report, supra Chapter 4 note 14.
138 Ibid., paragraph 166. 139 ec – Hormones, Panel Report, supra Chapter 4 note 4, paragraphs 8.75–8.77. 140 ec – Hormones, ab Report, supra Chapter 4 note 14, paragraph 165 (italics in original). 141 Ibid., paragraph 165. Footnote 154 cites Oppenheim’s International Law for the following definition of in dubio mitius: ‘The principle of in dubio mitius applies in interpreting trea- ties, in deference to the sovereignty of states. If the meaning of a term is ambiguous, that meaning is to be preferred which is less onerous to the party assuming an obligation, or which interferes less with the territorial and personal supremacy of a party, or involves less general restrictions upon the parties’. 142 Ibid., paragraph 175. 143 tbt Agreement, supra Chapter 4 note 6, Article 2.4. 144 Ibid., Article 2.2, according to which ‘legitimate objectives’ include national security requirements, the prevention of deceptive practices, protection of human health or safety, animal or plant life or health, or the environment.
Appellate Body did not take a position on the status of the precautionary principle in international food law.145 However, it did provide a framework within which the precautionary principle, or a similar principle, could, in sub- stance, justify preventative measures. The Appellate Body stated that ‘there is no need to assume that Article 5.7 [sps] exhausts the relevance of a precau- tionary principle’.146 wto Members have ‘a right…to establish their own appropriate level of sanitary protection, which level may be higher (i.e., more cautious) than that implied in existing international standards, guidelines and recommendations’.147 The Appellate Body also recognised that ‘responsible, representative governments commonly act from perspectives of prudence and precaution where risks of irreversible, e.g. life-terminating, damage to human health are concerned’.148 Fourth, in determining their own level of protection, Members could take into account not only quantitative factors but also qualitative factors, such as consumer tastes and habits. In ec-Asbestos149 Canada contested a French ban on the manufacture, sale and imports of certain asbestos products, including chrysotile-cement products. Though the case concerned the tbt Agreement, it is instructive in matters of food safety, because it expanded the list of factors which can be taken into account in determining the level of health protection that is ‘necessary’ under Article xx(b) gatt. In interpreting the term ‘like products’ in Article iii:4 gatt, the Appellate Body stated that four criteria could be used to determine ‘likeness’: the product’s properties, nature and quality; the product’s end-uses; consumer tastes, perceptions, habits and behaviour; and the product’s tariff classification.150 Evidence concerning health risks could be taken into account in determining ‘likeness’ and could be examined under the criteria concerning physical properties and consumer
145 ec – Hormones, ab Report, supra Chapter 4 note 14, paragraph 123. See also T. O’Riordan, J. Cameron and A. Jordan (eds), Reinterpreting the Precautionary Principle (London: Cameron and May 2001); Gabrielle Marceau, ‘Le principe de precaution et les règles de l’Organisation internationale du commerce’, in Charles Leben and Joe Verhoeven (eds), Le principe de précaution et le droit international (Paris: Editions Panthéon-Assas, 2001), pp. 131–149; Karine Foucher, Principe de précaution et risque sanitaire: Recherche sur l’encadrement juridique de l’incertitude scientifique (Paris: L’Harmattan, 2002). 146 ec – Hormones, ab Report, supra Chapter 4 note 14, paragraph 124. 147 Ibid., paragraph 124. 148 Ibid., paragraph 124. 149 European Communities – Measures Affecting Asbestos and Asbestos-Containing Products, Complaint by Canada, Report of the Appellate Body (WT/DS135/AB/R), adopted by the Dispute Settlement Body 5 April 2001 (hereafter ec – Asbestos ab Report). 150 Ibid., paragraph 101.
151 Ibid., paragraphs 144, 115. 152 Ibid., paragraph 167. 153 Ibid., paragraphs 177–178. 154 Korea- Measures Affecting Imports of Fresh, Chilled or Frozen Beef, WT/DS161, 169/AB/R, adopted 10 January 2001. 155 Ibid., paragraph 163. This case concerned Article xx(d) gatt but the interpretation holds for Article xx(b) gatt. 156 The remainder of this paragraph is drawn from Snyder, ‘Adequate Food’, supra note 7, pp. 131–132. 157 European Communities – Trade Description of Sardines, Report of the Appellate Body, ab- 2002-3, WT/DS231/AB/R, 26 September 2002 (hereafter ec–Sardines). 158 Council Regulation (eec) 2136/89of 21 June 1989 laying down common marketing stan- dards for preserved sardines, OJ EC 22.7.89 L212/79. 159 Codex Stan 94–1981, Rev.1-1995. 160 See tbt Agreement, supra Chapter 4 note 6, Annex 1: Terms and their definition for the purpose of this Agreement, 2: Standard, Explanatory note, which provides inter alia that ‘Standards
the definition of a ‘standard’ in Annex 1.2 to the tbt Agreement does not require approval by consensus for standards adopted by a ‘recognised body’ of the international standardisation community. We emphasise, however, that this conclusion is relevant only for the purposes of the tbt Agreement. It is not intended to affect, in any way, the internal require- ments that international standard-setting bodies may establish for themselves for the adoption of standards within their respective opera- tions. In other words, the fact that we find that the tbt Agreement does not require approval by consensus for standards adopted by the international standardisation community should not be interpreted to mean that we believe an international standardisation body should not require consensus for the adoption of its standards.161
The Appellate Body thus resolved an ambiguity in the text of Annex 1.2 of the tbt Agreement in favour of Peru. Together with ec-Hormones, the case gave Codex standards a political salience which they previously lacked. After this case, Codex standard setting procedures involved higher stakes, because of the possibility that decisions would no longer always been made by consensus. wto case law thus contributed to the politicization of the Codex, whose stan- dards were increasingly seen to involve choices of values and the use of power.
Other Bodies
Introduction Numerous other international, transnational and regional organisations are involved in food safety regulation. The wto sps Agreement refers to the Codex Alimentarius Commission (cac) for food safety standards, the International Office of Epizootics (oie, now World Organisation for Animal Health) for ani- mal health and zoonoses and the Secretariat of the International Plant Protection Convention (ippc) for plant health.162 The tbt Agreement refers to the International Organisation for Standardization (iso) and the International Electrotechnical Commission; the latter is omitted here because it is not concerned with food safety.163 This section discusses these international
defined by the international standardisation community are based on consensus. This Agreement also covers documents that are not based on consensus’. 161 ec-Sardines, supra note 157, paragraph 227. 162 sps Agreement, supra Chapter 4 note 4, Annex A(2)(a), (b), (c). 163 tbt Agreement, supra Chapter 4 note 6, Annex 1.
Codex Alimentarius Commission (cac) Structure The Codex Alimentarius Commission (Codex, or cac) is the most well-known inter-governmental body engaged in setting food safety standards.164 It was established jointly by the fao and the who resolutions in 1961 and 1963, respectively, and it had its first session in 1963. Its initial mission was ‘to implement the Joint fao/who Food Standards Programme’.165 Today it includes 187 Member Countries and one Member Organisation (eu) and 225 Observers, of which 52 are inter-governmental organisations (igos), 157 are non-governmental organisations (ngos) and 16 are United Nations bodies.166 China has been a member of Codex since 1984.167 The igos include the wto; ngo Observers include the International Dairy Federation (idf); and the un bodies include organisations concerned with food security, such as the World Food Programme.168 The stated purposes of Codex are to protect the health of consumers and ensure fair practice in food trade, to promote the coordination of all food stan- dards work undertaken by international governmental and non-governmental organisations (ngos) and to determine priorities, initiate and guide the prepara- tion of draft standards through and with the aid of all appropriate organisations,
164 Much of the following paragraphs are updated from Snyder, ‘Adequate Food’, supra note 7, pp. 129–130. For a detailed study of Codex, see Mariëlle D. Masson-Matthee, Codex, supra note 214. The Codex Alimentarius Commission takes its name from the Codex Alimentarius Austriacus, a collection of standards and product descriptions for foods drawn up in the Austro-Hungarian Empire from 1897 to 1911: see the Codex Alimentarius website http://www.codexalimentarius.net/. The term ‘Codex’ refers to both the organisa- tion and to the standards produced by it. 165 http://www.codexalimentarius.org/about-codex/codex-timeline/en/, last accessed 6 February 2015. 166 Codex Alimentarius, Codex Members and Observers, available at http://www.codexali- mentarius.org/members-observers/en/, last accessed 4 January 2015. 167 Codex Alimentarius, List of Codex Members, available at http://www.codexalimentarius .org/members-observers/members/en/?no_cache=1, last accessed 4 January 2015. 168 Codex Alimentarius, Code Observers, available at http://www.codexalimentarius.org/ members-observers/observers/en/?filterby=UN, last accessed 4 January 2015.
169 Statutes of the Codex Alimentarius Commission, Article 1Codex Alimentarius Commission, Procedural Manual, Joint fao/who Food Standards Programme (fao and wto, 12th edition 2001), available at http://www.fao.org/DOCREP/005/Y2200E/y2200c02 .htm#bm02 (hereafter Codex Statutes). 170 Braithwaite and Drahos, Regulation, supra note 187, p. 417. 171 sps Agreement, supra Chapter 4 note 4, Annex A, Definitions, 3: International standards, guidelines and recommendations. 172 Codex Statutes, supra note 169, Article 5. 173 Ibid., Article 6. 174 Ibid., Article 7. 175 Codex Alimentarius, List of Active Codex Committees, http://www.codexalimentarius. org/committees-and-task-forces/en/,last accessed 4 January 2015. 176 See Codex Alimentarius Commission, Procedural Manual, 22nd edition (World Health Organisation, Food and Agricultural Organisation of the United Nations, Rome, 2014), available at ftp://ftp.fao.org/codex/Publications/ProcManuals/Manual_22e.pdf, last accessed 5 January 2015 (hereafter Codex Procedural Manual).
Codex Committee on Food Additives177 and the Codex Committee on Pesticide Residues.178 Currently, the nine ‘horizontal’ committees (and chairs) deal with General Principles (France) Food Labelling (Canada), Methods of Analysis and Sampling (Hungary), Food Hygiene (United States), Pesticide Residues (China), Contaminants (Netherlands), Additives (China), Import/Export Inspection and Certification Systems (Australia), Nutrition and Foods for Special Dietary Uses (Germany) and Residues of Veterinary Drugs in Food (United States). There are currently seven ‘horizontal’ committees (and chairs): Milk and Milk Products (New Zealand), Fats and Oils (Malaysia), Fish and Fishery Products (Norway), Fresh Fruits and Vegetables (Mexico), Sugars (Colombia), Processed Fruits and Vegetables (United States) and Spices and Culinary Herbs (India). Regional coordinating committees are concerned with regional food standards issues, including the role of developing countries. Such committees exist for North America and Southwest Pacific, Europe, Africa, Asia, and Latin America and the Caribbean. Limited-life working groups, such as those established for four years in 1999, have dealt with biotechnology, animal feeds and fruit juices. The basic procedures for making standards are set down in the Codex Procedural Manual.179 A schematic outline is as follows:
A standard starts life when a national government, or a committee of the Codex Commission, proposes that a standard be developed on a particu- lar issue or food product. If the Codex Commission (or its Executive Committee) decides that a standard should be developed, then the Codex Commission Secretariat writes a proposed draft standard and circulates it to Member Governments for consideration. Comments are reviewed by the relevant Codex committee, which may present the text as a draft standard to the Codex Commission when it is ready. If the Codex Commission adopts the draft standard, it is sent to governments a num- ber of times in a step procedure, which results in the final draft becoming a Codex standard. The number of steps varies from between five and eight and the system is designed to build as broad a consensus as possible.
177 Codex Alimentarius, List of Active Codex Committees, Codex Committee on Food Additives (ccfa), available at http://www.codexalimentarius.org/committees-and-task -forces/en/?provide=committeeDetail&idList=9, last accessed 4 January 2015. 178 Codex Alimentarius, List of Active Codex Committees, Codex Committee on Pesticide Residues (ccpr), available at http://www.codexalimentarius.org/committees-and-task -forces/en/?provide=committeeDetail&idList=4, last accessed 4 January 2015. 179 Codex Procedural Manual, supra note 176, Section ii Elaboration of Codex Standards and Related Texts pp. 25–87.
This can take a number of years to complete. In between, the relevant committee supported by the Secretariat amends and adapts the details as required. Sometimes, certain steps may be repeated. Once adopted by the Codex Commission, a standard is added to the Codex Alimentarius – the world’s ‘food code’.180
The example of melamine standards illustrates another version of this process: the complex interaction between Codex, national governments and private enterprise. Immediately after the melamine crisis became public, China on 7 October 2009 adopted its own standards first. They allowed a maximum level of melamine of 1 mg/kg for infant powdered formula and 2.5 mg/kg for other milk products.181 Similarly, with regard to testing, the Standardisation Administration of China (sac) on 7 October 2008 published a National Testing Method for Melamine in Raw Milk and Dairy Products.182 During the same period the International Dairy Federation and the International Organisation for Standardisation (iso) in 2010 published guidelines for the quantitative deter- mination of melamine and cyanuric acid in milk products and infant formula. In March 2011 these guidelines were endorsed by the Codex Committee on Methods of Analysis and Sampling.183 Adopted by the Codex Commission in July 2011, they were the first international standards on determination of melamine in milk products and infant formula. They were adopted by Codex in July 2011184 as ‘the first global limits on permitted melamine level’ in the form of standards on maximum levels for melamine in food (powdered infant
180 European Food Information Council (eufic), ‘What Is Codex Alimentarius?’ Food Today, 07/2004, available at http://www.eufic.org/article/en/artid/codex-alimentarius/, last accessed 5 January 2015. 181 http://www.gov.cn/zwgk/2008-10/08/content_1114950.htm date accessed: 2012/4/28. 182 http://www.aqsiq.gov.cn/ztlm/nf/rdgz/200810/t20081008_92553.htm date accessed: 2012/4/28. 183 Standards New Zealand, ‘Detecting melamine in milk, Codex endorses joint iso idf guidelines’, 7 April 2011, available at http://www.standards.co.nz/news/media-releases/ 2011/apr/detecting-melamine-in-milk-codex-endorses-joint-iso-idf-guidelines/, last accessed 5 January 2015. 184 http://www.codexalimentarius.net/download/report/734/al33_13e.pdf; and http://www .google.com.hk/url?sa=t&rct=j&q=codex+committee+on+contamination+in+food+cccf+ +powdered+melamine&source=web&cd=1&ved=0CDAQFjAA&url=http%3A%2F%2F www.ift.org%2Fpublic-policy-and-regulations%2F~%2Fmedia%2FPublic%2520Policy% 2FInternational%2520Advocacy%2FCCCF%25202010%2520IFT%2520CSE%2520report .pdf&ei=Mu2TT9WcMoTAiQfuop2VBA&usg=AFQjCNH9PraNNQweuJ3oGKyUWrXLn2H L5A, last accessed 20 April 2012.
185 (ts) Milk, milk products and infant formulae – Guidelines for the quantitative determi- nation of melamine and cyanuric acid by LC-MS/MS, ISO/TS 15495 |IDF/RM 230:2010. 186 http://www.moh.gov.cn/publicfiles/business/htmlfiles/mohwsjdj/s7891/201104/51355 .htm date accessed: 2012/4/28. 187 codex General Standard for Contaminants and Toxins in Food and Feed (codex STAN 193–1995), as amended, p. 47available at http://www.codexalimentarius.org/standards/ list-of-standards/en/?provide=standards&orderField=fullReference&sort=asc&num1=C ODEX, last accessed 5 January 2015 (italics in original); http://www.fao.org/fileadmin/ user_upload/livestockgov/documents/1_CXS_193e.pdf, last accessed 5 January 2015. See also http://www.fao.org/news/story/en/item/150771/icode/, last accessed 2 October 2014; World Health Organisation, ‘un strengthens regulations on melamine, seafood, melons, dried figs, labelling’, available at http://www.who.int/mediacentre/news/releases/2012/ codex_20120704/en/, last accessed 5 January 2015. 188 On the acceptance procedure, see fao Corporate Document Depository, Guidelines for the Acceptance Procedure for Codex Standards, available at http://www.fao.org/docrep/ 005/y2200e/y2200e06.htm, last accessed 5 January 2015.
Relations Codex has numerous types of relations with international organisations, ngos and governments. Such relations are inherent in its tasks of making interna- tional food standards and seeking to harmonise national food standards. The wto sps Agreement reinforces these relations, and the 1998 wto ec-Hormones decision189 strengthened dramatically the authority of Codex. The role of Codex and other international standards in wto case law is examined in a later chapter. In addition, relations with governments and private organisations are inte- gral to the committee structure. Inter-governmental organisations and govern- ments cooperate in initial stages of drafting standards and participate in exchange of information and in meetings.190 ngos with Observer status are entitled to enjoy non-voting participation in meetings, including being enti- tled to circulate views and, when invited by the chairperson, to speak; to receive documentation; and to circulate statements.191 Governmental delegations may include members from the private sector, including consumer organisations and industry. Private sector organisations can also attend meetings as observers as part of a Codex-approved International Non-Governmental Organisation (ingo), in which capacity they may make comments at meetings at the discretion of the chairperson;192 the role of Fonterra and the idf in making dairy standards was previously noted. The biggest funder of the Codex at its outset was the u.s. food industry, and companies, especially transnational companies, continue to play a very significant role. In their recent study of global business regulation, Braithewaite
189 ec – Hormones, ab Report, supra Chapter 4 note 14. 190 Guidelines on cooperation between the Codex Alimentarius Commission and interna- tional intergovernmental organisations in the elaboration of standards and related texts, in Codex Procedural Manual, supra note 176, pp. 198–200. These guidelines should be read in conjunction with the fao Corporate Document Repository, ‘Procedures for the Elaboration of Codex Standards and Related Texts’, available at http://www.fao.org/ docrep/005/y2200e/y2200e04.htm, last accessed 23 January 2015. 191 Principles concerning the Participation of International Non-Governmental Organisations in the Work of the Codex Alimentarius Commission, in Codex Procedural Manual, pp. 200–204. 192 Principles Concerning the Participation of International Non-Governmental Organi sations in the Work of the Codex Alimentarius Commission, http://www.fao.org/ DOCREP/005/Y2200E/y2200e09.htm#bm9, visited 1 November 2003.
World Organisation for Animal Health (oie) The Office International des Epizooties (oie) was created in 1924 and now is known as the World Organisation for Animal Health (still abbreviated as oie). It has 180 members and permanent contacts with many other international and regional organisations.197 Its main objectives are to inform governments of ani- mal diseases and their control, to coordinate relevant studies and to harmonise regulations for trade in animals and animal products. It operates under an International Committee which is composed of delegations from member countries and which adopts resolutions based on the work of specialist commis- sions. The oie Fish Diseases Commission, established in 1960, formally adopted in 1995 the International Aquatic Animal Health Code and the Diagnostic Manual for Aquatic Animal Diseases.198 China joined the oie in 2007.199
193 Braithwaite and Drahos, Regulation, supra Chapter 4 note 187, pp. 401 (funding), 408 (source of quotation). 194 Codex, Procedural Manual supra note 176, pp. 108–171. 195 Codex Alimentarius, Scientific Basis for Codex Work, available at http://www .codexalimentarius.org/scientific-basis-for-codex/en/ , last accessed 2 October 2014. 196 The fao/who Project and Fund for Enhanced Participation in Codex (Codex Trust Fund) was launched in 2003 http://www.who.int/foodsafety/areas_work/food-standard/ codextrustfund/en/ , last accessed 2 October 2014. 197 See the oie website at http://www.oie.int/en/, last visited 7 January 2015. 198 Australia – Measures Affecting Importation of Salmon, Panel Report, WT/DS18/R adopted as modified 6 November 1998 (hereafter Australia – Salmon, Panel Report) , paragraphs 2.19–2.20; the quotation is from paragraph 220. The distinction between notifiable and other diseases is discussed, with criteria for each category, in paragraphs 2.21–2.23. 199 Chan et al., Global Governance, supra Chapter 3 note 174, p. 134. The oie home page does not give any date: see http://www.oie.int/en/about-us/our-members/member-countries/, last accessed 23 January 2015.
International Plant Protection Convention (ippc) The International Plant Protection Convention (ippc)200 is an international treaty on plant protection, signed by 181 parties, including 180 countries and the eu as a Member Organisation.201 The ippc was first drafted in 1929, was adopted by the fao in 1951 and came into force in 1952. After the Uruguay Round the fao established an ippc Secretariat in 1992; a Committee of Experts on Phytosanitary Measures (cesm) was created in 1993. Amendments adopted in 1997 provided for a Commission on Phytosanitary Measures. One of its most important functions of ippc bodies is setting standards, which usually are proposed by countries or regional organisations and then drafted by ippc Secretariat.202
International Organisation for Standardisation (iso) The International Organisation for Standardisation (iso) is an international non-governmental body which, according to the iso website, is ‘the world’s largest developer of voluntary international standards’.203 Its 165 members are national standards bodies. There is a Central Secretariat in Geneva.204 Among its many international standards, the iso family 22000 family of standards con- cerns food safety management.205 They include overall guidelines for food safety management (iso 22000:2005),206 guidelines for applying iso 22000 (iso/ts 22004:2005),207 traceability in the feed and food chain (iso 22005: 2007),208 specific prerequisites for food manufacturing (iso/ts 22000–1:2009),209
200 See the ippc website at https://www.ippc.int/, last accessed 7 January 2015. 201 International Plant Protection Convention, available at http://www.fao.org/fileadmin/ user_upload/legal/docs/4_004s-e.pdf, last accessed 7 January 2015. 202 Japan – Measures Affecting Agricultural Products, Panel Report, WT/DS76/R, adopted 19 March 1999 (hereafter Japan – Agricultural Products, Panel Report), paragraph 2.29. 203 See the iso website at http://www.iso.org/iso/home/about.htm, last accessed 2 October 2014. 204 See the iso website at http://www.iso.org/iso/home/about.htm, last accessed 2 October 2014. For more information about its structure, see http://www.iso.org/iso/home/about/ about_governance.htm, last accessed 2 October 2014. 205 http://www.iso.org/iso/home/standards/management-standards/iso22000.htm (last visited October 2, 2014). 206 http://www.iso.org/iso/home/store/catalogue_tc/catalogue_detail.htm?csnumber=35466 (last visited October 2, 2014). 207 http://www.iso.org/iso/home/store/catalogue_tc/catalogue_detail.htm?csnumber=39835 (last visited October 2, 2014). 208 http://www.iso.org/iso/home/store/catalogue_tc/catalogue_detail.htm?csnumber=36297 (last visited October 2, 2014). 209 http://www.iso.org/iso/home/store/catalogue_tc/catalogue_detail.htm?csnumber=44001 (last visited October 2, 2014).
Conclusion
This chapter has surveyed briefly the main international institutions con- cerned with food safety regulation. Side-by-side, there exist numerous other, regional and national sites of governance concerned with food safety. Examples include the North American Free Trade Association (nafta)214 and the apec Food System and apec Food Safety Cooperation Forum.215 On 18 May 2011, the apec Food Safety Cooperation Forum signed a non-legally-binding Memorandum of Understanding (mou) with the World Bank to build capacity for food safety regulation in the Asia-Pacific region.216 Another form of transnational food cooperation is the International Forum on Food Safety, organized annually in Beijing since 2010 by the Chinese Institute of Food
210 http://www.iso.org/iso/home/store/catalogue_tc/catalogue_detail.htm?csnumber=57389 (last visited October 2, 2014). 211 http://www.iso.org/iso/home/store/catalogue_tc/catalogue_detail.htm?csnumber=57389 (last visited October 2, 2014). 212 iso, Historical Record of iso Membership since its Creation, available at http://www.iso .org/iso/iso_membership_1947_to_2013.pdf, last accessed 7 January 2015. 213 iso, Members, China (sac), available http://www.iso.org/iso/about/iso_members/iso _member_body.htm?member_id=1635, last accessed 7 January 2015. 214 The North American Free Trade Agreement (nafta) between the United States, Canada and Mexico provides that, without reducing the level of protection, parties shall use rele- vant international standards as a basis for their sanitary and phytosanitary measures: North American Free Trade Agreement between the Government of Canada, the Government of the United Mexican States and the Government of the United States of America, Article 713(1) (Ottawa: Minister of Supply and Services, 1992), available at http://www.nafta-sec -alena.org/DefaultSite/legal/index_e.aspx?articleid=78, accessed 30 October 2014. 215 See Asia-Pacific Economic Cooperation, apec Food System, at http://www.apec.org/ Home/Groups/Other-Groups/apec-Food-System.aspx, last accessed 7 January 2015. 216 Asia-Pacific Economic Cooperation (apec) and the World Bank, Memorandum of Understanding between International Bank for Reconstruction and Development, International Development Association, apec Food Safety Cooperation Forum for Collaboration on Food Safety Capacity Building in the Asia-Pacific Region, 18 May 2011, available at http://www.apec.org/Home/Groups/Other-Groups/~/media/32F2FE2916614 F9DA1CD26ABC366C0D2.ashx, last accessed 7 January 2015.
Science and Technology (cifst) and the International Union of Food, Science and Technology (IFoFS), and supported by the Office of the Food Safety Commission of the State Council, the Ministry of Health and the Ministry of Industry and Information.217 They complement international institutions such as who, Codex, the wto and international standards bodies in the transna- tional of food safety regulation in Chinese and elsewhere. As I have argued elsewhere,218 it is important to improve coordination between the multiple sites of governance concerned with food safety. Each insti- tution is supported by different countries, networks, groups and individuals.219 Other constraints derive from structural aspects, such as norms and institutions, of each site of governance. Organisations may share common objectives, but they often interpret them differently and for this reason fail to maximum their common interests. Further research is needed on mechanisms of coordination among transnational arrangements to ensure optimum food safety regulation.
217 http://www.ifofs.org/ , last accessed 2 October 2014. 218 Snyder, ‘Adequate Food’, supra note 7, pp. 80–163. 219 For the example of this problem among global governance institutions, see Alan V. Deardorff and Robert M. Stern, ‘Introduction and Overview’, in Alan V. Deardorff and Robert M. Stern (eds), Social Dimensions of u.s. Trade Policies (University of Michigan Press, Ann Arbor, 2001), pp. 12–13.
Introduction
Globalization has irrevocably altered the world of food safety. Consumers, eco nomists, legal scholars and pundits alike agree that, in today’s world, we are witnessing the creation of a more or less integrated global food economy. This process of economic integration has been accompanied, conditioned and sometimes even shaped by the diffusion of food safety standards emanating from international institutions and/or leading food trading countries.1 As a result of these interconnected economic and legal processes, food safety stan- dards today are worldwide concerns. We all ask: Is my food safe to eat? How do I know? What does ‘safe’ mean? What are food safety standards? How are they made? How are they enforced, if at all? Which local standards are globalized?2 Can and should all countries in the world follow the same standards? If not, what about trade? When we as lawyers try to discern the outlines of this transformation, we usually turn to wto law. There are many wto cases about agricultural or food products,3 but most of them are concerned only indirectly or remotely – if at all – with food safety.4 Most wto cases involving agricultural or food products refer not to food safety, still less to food safety standards, but rather to matters such
1 2 3 4
1 See Paul Roberts, The End of Food: The Coming Crisis in the World Food Industry (Bloomsbury Publishing plc, London, 2009); Mahiou and Snyder, Food Safety, supra Chapter 2 note 17: Albert Alemanno, Trade in Food: Regulatory and Judicial Approaches in the ec and the wto (Cameron May, London 2007) (hereafter Alemanno, Trade). 2 On the globalisation of local practices, see Boaventura de Sousa Santos, Towards a New Legal Common Sense (Butterworths, London, 2nd edition 2002). 3 For a survey up to 2007, see Tim Josling, ‘Agricultural Trade Disputes in the wto’, Elsevier Series on Economics and Globalization, Volume on dsu and Trade Disputes, available at http://iis-db.stanford.edu/pubs/23522/Agricultural_Trade_Disputes_in_the_WTO.pdf, accessed 17 January 2013. 4 See eg Chile – Provisional Safeguard Measure on Certain Milk Products, DS351, which involved Articles I and xix of gatt and articles of the Safeguards Agreement,: summary available at http://www.wto.org/english/tratop_e/dispu?e/cases_e/ds351_e.htm, last accessed 12 September 2012.
© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004306929_007
5 6 7 8
5 For example, Chile – Definitive Safeguard Measures on Certain Milk Products, DS356, Summary of the dispute to date available at http://www.wto.org/english/tratop_e/dispu_e/cases_e/ ds356_e.htm, last accessed 12 September 2012. 6 For a complex and controversial example, see Canada – Measures Affecting the Importation of Milk and the Exportation of Dairy Products, DS103, Summary of the dispute to date at http:// www.wto.org/english/tratop_e/dispu_e/cases_e/ds103_e.htm, last accessed 11 September 2012, and Canada – Measures Affecting Dairy Exports, DS113, Summary of the dispute to date at http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds113_e.htm, last accessed 11 September 2012. The United States on 8 October 1997 in the first case and New Zealand on 29 December 1997 in the second case requested consultations concerning a Canadian dairy export scheme. They argued that the scheme was incompatible with the gatt and the Agreement on Agriculture, and the us also challenged the scheme on the basis of the Import Licensing Agreement and the scm Agreement. In both cases, following unsuccessful consultations, the case went through a panel, the ab and two Article 21.5 panels, both of which were appealed, before the parties notified the wto on 9 May 2003 (in both cases) of their mutually satisfac- tory solution. 7 See Chapter 6 in this book. 8 On the tprm, see Chapter 8 in this book.
9times thought. While the sps Agreement and the tbt Agreement are the most
9 The cut-off date for this chapter is 1 October 2014. See China’s wto Members page, at http:// www.wto.org/english/thewto_e/countries_e/china_e.htm, last accessed 20 October 2014.
The Cases
Classification Which cases should be considered? wto law does not provide a definition or even a specific conception of food safety. In this chapter, for the sake of conve- nience, I adopt the following definition: Food safety law consists of the norms, institutions and legal processes ‘intended to ensure, or having the effect of ensuring, that food is safe to eat’, in the sense that it is not injurious to health nor unfit for human consumption. This definition is based on reasoning a con- trario from the definition of ‘unsafe food’ provided in the 2009 European Union (eu) Food Law.10 Even though not perfect, it is for present purposes both suf- ficiently precise and sufficiently inclusive to serve as a criterion for selecting the cases to be examined. wto cases on food safety can be classified in various ways. First, they may be classified according to the wto agreement(s) involved in the case. Specialists in wto law usually employ this criterion. This is not surprising, because most law- yers are usually trained to take the law as an authoritative starting point, and the purpose of their research often focuses on issues of positive law or legal doc- trine.11 However, if our objective is to understand the impact of the wto on 10 11
10 eu General Food Law, supra Chapter 3 note 345. 11 This approach is the basis for the discussion of relations between the wto dsm and inter- national standards bodies in Chapter 7 of this book.
12 13 14a challenged measure intervenes.14 In other words, what aspect of food safety
12 A pertinent example, though not concerning food, is China – Measures Affecting Imports of Auto Parts, Report of the Appellate Body, 15 December 2008, WTO/DS339/340/342/ AB/R, adopted 12 January 2009. 13 See China – Measures Related to the Exportation of Various Raw Materials, Report of the Appellate Body, 30 January 2012, WT/DS394/AB/R, WT/DS395/AB/R, WT/DS398/AB/R, adopted 12 February 2012: and China – Measures Relating the Exportation of Rare Earths, Tungsten and Molybdenum, Reports of the Appellate Body, WT/DS431/AB/R, WT/DS432/ AB/R, WT/DS433/AB/R, adopted 29 August 2014. 14 On value chains and related concepts, see Snyder, Legal Pluralism, supra Chapter 2 note 7, especially Chapter 3; and Gary Gareffi, John Humphrey and Tim Sturgeon, ‘The Governance of Global Value Chains’, Review of International Political Economy, 12, 1, 2005, 78–104.
Pre-Importation Production and Treatment Methods A first category of cases concerns rules about production and treatment meth- ods used in the exporting country, that is, prior to exportation of the product, and therefore prior to importation of the product on the importing country’s market. Table 6.1 shows the cases in this category. Such rules may determine in effect whether a product can be imported and/ or sold. Usually, they constitute, at least arguably, not only barriers to market
15
15 The following cases on food labelling brought against the European Communities by Canada, Chile and Peru, respectively are omitted because they are not directly concerned with food safety but rather with official names and permitted trade descriptions: European Communities – Trade Descriptions of Scallops (Request by Canada), Report of the Panel, WT/DS7/R, 5 August 1996; European Communities – Trade Descriptions of Scallops (Requests by Peru and Chile), WT/DS12, 14R, 5 August 1996. All were settled by mutually agreed solution after the Panel issued its interim report but before it issued its final report. For further discussion, see Qi Zhang, Consultation within wto Dispute Settlement: A Chinese Perspective (Peter Lang, Bern, 2007), pp. 252–256 (hereafter Zhang, Consultations).
Table 6.1 Cases on pre-importation production and treatment methods
Case number Case name Complainant Product Procedural and filing date status
DS20, 8.11.1995 Korea – Bottled Canada Bottled water Mutually agreed Water solution DS72, 24.3.1997 ec – Butter New Zealand Butter Mutually agreed solution DS287, 3.4.2003 Australia ec Meat Mutually agreed – Quarantine solution Regime DS389, 16.1.2009 ec – Poultry us Poultry Panel established but not yet composed entry but also measures seeking to guarantee food quality and food safety, with complainant and respondent characterizing the measures in opposite ways. Water, the ‘noblest of the elements’ according to Pindar,16 is also an eco- nomic sector characterized in recent decades by intense competition. This is especially true of bottled water. During the past two decades, international consumption of bottled water increased dramatically. It is perhaps not surpris- ing therefore that the bottled water industry, comprising bottlers, distributors and suppliers, witnessed rapid consolidation.17 At the time, however, there were no internationally accepted standards on bottled water. Korea – Bottled Water concerned the production and treatment of bottled water by ozonation, a commonly used but nevertheless controversial method of
16 17 treatment.18 18 Canada, which used ozonation as a method of treating bottled
16 Pindar, 476 bce., as quoted on the website of the International Council of Bottled Water Associations (icbwa), http://www.bottledwaterweb.com/suppliersdetail.do?k=404, accessed 18 January 2013. 17 See Peter H. Glieck, ‘The Myth and Reality of Bottled Water’, in Pacific Institute, The World’s Water: The Biennial Report on Freshwater Resources: 2004–2005 (Island Press, 2004) Chapter 2, at 21, available at http://www.pacinst.org/topics/water_and_sustainability/ bottled_water/myth_and_reality.pdf, accessed 18 January 2013. 18 See eg D. Van der Kooji, W.A.M. Hijnen and J.C. Kruithof, ‘The Effects of Ozonation, Biological Filtration and Distribution on the Concentration of Easily Assimilable Organic Carbon (aoc) in Drinking Water’, Ozone: Science & Engineering: The Journal of the International Ozone Association, 11, 3, 1989, 297–311; Laurence Meunier, Silvio Canonica
19 20 21 22
and Urs von Gunten, ‘Implications of Sequential Use of uv and Ozone for Drinking Water Quality’, Water Research, 40, 9, May 2006, 1864–1876. 19 Korea – Measures Concerning Bottled Water, Request for Consultations by Canada, World Trade Organization Restricted, WT/DS20/1G/L/33, G/SPS/W/35G/TBT/D/4, G/MA/3, G/ AG/w/14, 22 November 1995 (95–3655). 20 Euromonitor International, ‘Passport: Bottled Water in South Korea’, Sample Report, September 2011, available at http://www.euromonitor.com/medialibrary/pdf/samples/ sample_report_soft_drinks_bottled_water.pdf, accessed 18 January 2013. 21 World Trade Organization Understanding on Rules and Procedures Governing the Settlement of Disputes, in World Trade Organization, The Results of the Uruguay Round of Multilateral Trade Negotiations: The Legal Texts (gatt Secretariat, Geneva, 1994, reprinted by the wto in 1995), pp. 404–433, and subsequently reprinted in World Trade Organization, The Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations (Cambridge University Press, Cambridge, since 1999), pp. 354–379 (hereafter dsu). con- sultations, see especially Christiane Schuchhardt, ‘Consultations’, in Patrick F.J. Macrory, Arthur E. Appleton, and Michael G. Plummer (eds), The World Trade Organization: Legal, Economic and Political Analysis, Volume I (Springer Science + Business Media plc, New York, 2005), pp. 1187–1232 (hereafter Schuchhardt, ‘Consultations’). For a thorough study of wto consultations up to 2006, based partly on interviews, see Zhang, Consultation, supra note 15. For a review of the case law on Article 4 consultations up to 30 September 2011, see wto, wto Analytical Index: Guide to wto Law and Practice, 3rd Edition, Volume ii (Cambridge University Press for the World Trade Organization, Cambridge, 2012), pp. 1543–1555. An Analytical Index Supplement Covering New Developments in wto Law and Practice covering developments after 30 September 2011 is available on the wto web- site at http://www.wto.org/english/res_e/booksp_e/analytic_index_e/ai_new_dev_e.pdf, last accessed 16 March 2013. 22 dsu, supra note 21, Article 4.2 dsu. ‘Members’ duty to consult is absolute’, according to the Panel in Brazil – Measures Affecting Desiccated Coconut, Report of the Panel, WT/DS22/R, 17 October 1996, [Appellate Body Report adopted 20 March 1997], paragraph 287.
Through consultations, parties exchange information, assess the strengths and weaknesses of their respective cases, narrow the scope of the differ- ences between them and, in many cases, reach a mutually agreed settle- ment in accordance with the explicit preference expressed in Article 3.7 of the dsu. Moreover, even when no such agreed settlement is reached, consultations provide the parties an opportunity to define and limit the scope of the dispute between them. Clearly, consultations afford many benefits to complaining and responding parties as well as to third parties and to the dispute settlement system as a whole.27
As Pauwelyn notes, formal dsu consultations are ‘as much a final attempt to settle a dispute as a prelude to the litigation stage’ and also ‘a safety value to let off domestic pressure to take a dispute seriously’.28 Canada argued that the Korean measures were inconsistent with Articles iii and xi gatt, Articles 2 and 5 sps, and Article 2 tbt. In April 1996 the parties reached a mutually agreed solution. They agreed that Korea would amend its measures to allow the importation, sale and distribution of ozone-treated water by 1 January 1997 if possible, and in any event no later than 1 April 1997. Article 3.6 dsu requires Members to notify mutually agreed solutions to the dsb and relevant Councils and Committees.29 As a matter of law, such solutions must be consistent with the wto agreements and not nullify or impair Member’s
23 24 25 26 27 28 29
23 dsu, supra note 1311, Article 4.4. 24 Ibid., Article 4.5. 25 See ibid., Articles 4.7 and 6.2. 26 Ibid., Article 4.6. 27 Mexico – Anti-Dumping Investigation of High Fructose Corn Syrup from the United States, Recourse to Article 21.5 dsu, Report of the Appellate Body, WT/DS132/AB/RW, adopted 21 November 2001, paragraph 54. 28 Joost Pauwelyn, ‘The Limits of Litigation: “Americanization” and Negotiation in the Settle ment of wto Disputes’, Ohio State Journal on Dispute Settlement, 19, 2003–2004, 121–140, at 133. 29 dsu, supra note 21. Article 3.6.
30 31 32 33
30 Ibid., Article 3.5. 31 World Health Organization, ‘Bottled Drinking-Water’, Fact Sheet No. 256, October 2000, available at https://apps.who.int/inf-fs/en/fact256.html, accessed 18 January 2013. 32 General Standard for Bottled/Packaged Drinking Waters, Codex Standard 227–2001, avail- able at www.codealimentarius.org, accessed 17 01 2013: Codex Alimentarius, Code of Hygienic Practice for Bottled/Packaged Drinking Waters (other than Natural Mineral Waters), CAC/RCP 48–2001, available at www.codexalimentarius.org/input/download/ standards/392/CXP_048e.pdf, accessed 28 10 2012. 33 It is unlikely that wto Members would bring cases to the wto dispute settlement system unless important economic interests were at stake. See Braithewaite and Drahos, Regu lation, supra Chapter 4 note 187, pp. 399–417 and Jennifer Clapp and Doris Fuchs (eds), Corporate Power in Global Agrifood Governance (mit Press, Cambridge and London, 2009). On relationships between economic interests and government in wto litigation, see Gregory C. Shaffer, Defending Interests: Public-Private Partnerships in wto Litigation (Brookings Institution Press, Washington dc, 2003). For Chinese examples, see Luo Yan, ‘Engaging the Private Sector: eu-China Trade Disputes Under the Shadow of wto Law?’ European Law Journal, 13, 6, 2007, pp. 800–817, reprinted in Francis Snyder (ed), China and the European Union: Perspectives from the European Law Journal, Virtual Issue of the European Law Journal, January 2012, available at http://onlinelibrary.wiley.com/ journal/10.1111/(ISSN)1468-0386/homepage/virtual_issue_-_china_and_the_eu.htm, accessed 12 February 2013.
34 35 36 37 38 39factors outside the consultation process itself were likely to have been the most
34 See the ibwa website at http://www.bottledwater.org/about, accessed 17 January 2013. 35 See the cbwa website at http://www.cbwa.ca, accessed 17 January 2013. 36 See also at http://www.cbwa-bottledwater.org/, accessed 17 January 2013. 37 See the icbwa website at http://www.bottledwaterweb.com/suppliersdetail.do?k=404, accessed 18 January 2013. 38 dsu, supra note 21, Article 3.7. 39 Gary N. Horlick and Glenn R. Butterton, ‘A Problem of Process in wto Jurisprudence: Identifying Disputed Issues in Panels and Consultations’, Law & Policy in International Business, 31, 1999–2000, 573–582 at 580 (first quotation), 581 (second quotation).
40 41 42 43 44
40 Olin L. Wethington, ‘Commentary on the Consultation Mechanism under the wto Dispute Settlement Understanding During Its First Five Years’, Law & Policy in International Business, 31, 1999–2000, 583–590, at 586–587. 41 For example, between 1995–2000, when the Korea – Bottled Water case took place, the United States strategy was to see the consultation phase ‘merely as part of a broader strat- egy to rachet up political pressure in order to resolve the problem with a panel decision, or outside the wto context if necessary’: Olin L. Wethington, ‘Commentary on the Consultation Mechanism under the wto Dispute Settlement Understanding During Its First Five Years’, Law & Policy in International Business, 31, 1999–2000, 583–590, at 588. 42 On the development of the cap, see Francis Snyder, cap Law, supra Chapter 4 note 204, and Francis Snyder, ‘cap [Common Agricultural Policy]’, in Erik Jones, Anand Menon and Stephen Weatherill (eds), The Oxford Handbook of the European Union (Oxford University Press, Oxford, 2012), pp. 484–495. 43 For a current example, see the Fonterra web site athttp://www.fonterra.com/global/en/ About/Our+Locations/NewZealand/Kauri, accessed 28 October 2012. 44 European Communities – Measures Affecting Butter Products, DS72, Summary of the dis- pute to date available at http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds72_e .htm, last accessed 12 September 2012.
treatments45 (prts) in the treatment of poultry products. The ec prohibited 46 47 48 49
45 See hm Revenue & Customs, Common Agricultural Policy import procedures and special directions for goods, Section 5.41 New Zealand butter, available at http://customs.hmrc .gov.uk/channelsPortalWebApp/channelsPortalWebApp.portal?_nfpb=true& _pageLabel=pageLibrary_ShowContent&id=HMCE_CL_000195&propertyType=docume nt#P204_27015, accessed 28 October 2012. 46 Since 1958 third parties have been allowed to join consultations under Article xxii gatt: Schuchhardt, ‘Consultations’, supra note 21 at 1200. See now dsu, supra note 1311, Article 4.11. 47 See World Trade Organization, Dispute Settlement: Dispute DS287, Australia – Quarantine Regime for Imports, Current status, Summary of the dispute to date, available at http:// www.wto.org/english/tratop_e/dispu_e/cases_ds387_e.htm, last accessed 9 April 2013. 48 Ibid. 49 Ibid.
50 51 52 53 54
50 European Communities – Certain Measures Affecting Poultry Meat and Poultry Meat Products from the United States, DS389 summary available at http://www.wto/org/ english/tratop_e?dispu_e/cases_e/ds389_e.htm, last accessed 12 September 2012 (hereafter ec – Poultry). 51 This sector has been the subject of wto cases involving China and the usa. See United States – Certain Measures Affecting Imports of Poultry from China, DS392, Panel report adopted 25 October 2010, and China – Anti-Dumping and Countervailing Duty Measures on Broiler Products from the United States, DS427, Panel report adopted 25 September 2013. 52 ec – Poultry, supra note 50. 53 Renée Johnson, ‘u.s.-eu Poultry Dispute’, Congressional Research Service, crs Report for Congress, 7–5700, R40199, available at http://www.fas.org/sgp/crs/row/R40199.pdf, accessed 21.02.2013. The eec and the us undertook conciliation under the gatt, in which: see Conciliation, US/EEC Negotiation on Poultry, Establishment of Panel (12S/65) and Panel on Poultry, Report of Panel (L/2088), (bisd 125/65) available at http://www.wto.org/english/ tratop_e/dispu_e/63poultr.pdf, accessed 21 January 2013. See also European Communities – United Kingdom Application of eec Directives to Importation of Poultry from the United States, Report of the Panel Adopted on 11 June (1981, L/5155 – 28S/90), available at http:// www.worldtradelaw.net/reports/gattpanels/ukpoultry.pdf, accessed 21 January 2013. 54 On the ‘happy end’, see Daniele Pisanello, ‘Happy end for us-ec dispute on poultry sps measures’, available at http://www.lexalimentaria.eu/ing/news/46-happy-end-for-us-ec -dispute-on-poultry-sps-measures.html, accessed 21 January 2013. On the guidelines, see Joint fao/who Food Standards Programme, Codex Alimentarius Commission, 34th Session, Geneva, Switzerland, 4–9 July 2011, Report of the Forty-Second Session of the
Import Bans – Procedures A second category of cases concerns measures establishing specific import procedures which in effect amount to a total ban on imports. Table 6.2 shows these cases. Such total bans may result from very different kinds of factors, such as the exercise of overly broad discretion by policy-making institutions of the import- ing country, or a failure to provide specific information, or a general lack of transparency. Their common feature, however, is that on their face they seem to be deliberate attempts to limit imports. In order to be legally acceptable under the wto international trade regime, such total bans must be justified under wto law. Importing Members almost always try to justify such bans on grounds of product safety, public health or product quality. Rarely, however, are such justifications successful. The poultry sector has been a continual source of tension between the eu and the us (since the early 1960s),55 at least until the recent already noted Codex Guidelines.56 We have already noted its importance to China. ds 100 us – Poultry Meat concerned an import ban that was alleged to be due to food safety concerns but which also exemplified the exercise of overly broad discre- tion on the part of domestic institutions of the importing country. It arose during the period when the ec began to prohibit imports of poultry treated with prts, a concern that eventually led the us to bring DS389 ec – Poultry (discussed above). It was the first case involving poultry brought to the wto. On 18 August 1997 the European Communities requested consultations with the United States. It challenged a us ban on imports of poultry and poultry products from the ec. A letter from the usda Food Safety Inspection Service communicated the ban in the following terms: ‘poultry and poultry products produced in the ec after April 30, 1997 will not be eligible for entry into the United States until the United States is able to obtain additional assurances of 55 56
Codex Committee on Food Hygiene, Kampala, Uganda, 29 November – 3 December 2010, rep 11/FH, para. 63 and Appendix iii, available at www.codexalimentarius.net/…/REP11 _FHe.pdf – , accessed 21 January 2013. 55 See eg Herman Walker, ‘Dispute Settlement: The Chicken War’, American Journal of International Law, 58, 1964, 671–685; Ross Talbot, The Chicken War: An International Trade Conflict between the United States and the European Economic Community, 1961–1964 (Iowa State University Press, Ames, 1978). 56 Joint fao/who Food Standards Programme, Codex Alimentarius Commission, 34th Session, Geneva, Switzerland, 4–9 July 2011, Report of the Forty-Second Session of the Codex Committee on Food Hygiene, Kampala, Uganda, 29 November–3 December 2010, rep 11/FH, para. 63 and Appendix iii, available at www.codexalimentarius.net/…/REP11 _FHe.pdf – , accessed 21 January 2013.
Table 6.2 Cases on import bans – procedures
Case number and Case name Complainant Product Procedural filing date status
DS100, 18.8.1997 us – Poultry Products ec Poultry In consultation DS133, 7.5.1997 Slovak Republic – Switzerland Dairy products In consultation Dairy Products DS144, 25.9.1998 us – Cattle, Swine Canada Cattle, swine, In consultation and Grain grain DS237, 31.8.2001 Turkey – Fresh Fruit Ecuador Fresh fruit Mutually agreed solution DS270, 18.10.2002 Australia – Fresh Philippines Fresh fruit and Panel estab- Fruit and Vegetables vegetables lished, but not yet composed DS284, 17.3.2003 Mexico – Black Beans Nicaragua Black beans Withdrawn DS392, 17.4.2009 us – Poultry from China Poultry Report(s) China adopted, no further action required DS455, 12.1.2013 Indonesia – us Horticultural Panel estab- Horticultural products, lished, but not Products, Animals animals and yet composed and Animal Products animal products DS465, 30.8.2013 Indonesia – us Horticultural In consultation Horticultural products, Products, Animals animals and and Animal Products animal products DS466, 30.8.2013 Indonesia – New Zealand Horticultural In consultation Horticultural products, Products, Animals animals and and Animal Products animal products DS477, 8.5.2014 Indonesia – New Zealand Horticultural In consultation Horticultural products, Products, Animals animals and and Animal Products animal products DS478, 8.5.2014 Indonesia – us Horticultural In consultation Horticultural products, Products, Animals animals and and Animal Products animal products
57 58 sps59 Agreement and the tbt Agreement.60 The case remains in consultation. 60
57 United States – Measures Affecting Imports of Poultry Products, Request for Consultations by the European Communities, World Trade Organization, WT/DS100/1, G/SPS/GEN/28, G/TBT/D/14, 25 August 1997 (97–3454). See also the Summary of the dispute to date: United States – Measures Affecting Imports of Poultry Products, DS100, available at http:// www.wto.org/english/tratop_e/dispu_e/cases_e/ds100_e.htm, last accessed 12 September 2012. 58 Slovak Republic – Measures Concerning the Importation of Dairy Products and the Transit of Cattle, Request for Consultations by Switzerland, World Trade Organization, WT/DS133/1, G/L/243, G/LIC/D/22, 18 May 1998 (98–1972); see also Summary of the dispute to date available at http://www.wto.org/english/tratop_e/dispu_e/cases_e/ ds133_e.htm, last accessed 12 September 2012. 59 As to factors possibly explaining why Canada had recourse to the wto rather than to nafta, see Marc L. Busch, ‘Overlapping Institutions, Forum Shopping, and Dispute Settlement in International Trade’, International Organization, 61,Fall 2007, 735–761. Busch argues that a complainant chooses among different possible dispute-settlement institutions according to whether it wants to set a regional or multilateral precedent, or not file a case at all. 60 United States – Certain Measures Affecting the Import of Cattle, Swine and Grain from Canada, Request for Consultations from Canada, World Trade Organization, WT/DS144/1, G/L/260/G/SPS/W/90, G/TBT/D/18, G/AG/GEN/27, 29 September 1998 (98–3762). Sum mary of the dispute to date available at United States – Certain Measures Affecting the
The requirement of specific import documents can also constitute a ban on imports. For example, in DS237 Turkey – Fresh Fruit, Ecuador on 31 August 2001 requested consultations with Turkey regarding Turkey’s import proce- dures for fresh fruit, in particular bananas. For fresh fruit imports, Turkey required a specific import document, called ‘Kontrol Belgesi’ (control certifi- cate), which was to be issued by the Turkish Ministry of Agriculture, pursuant to a governmental Communiqué for Standardization in Foreign Trade. Ecuador claimed that the requirement was a trade barrier inconsistent with Articles ii, iii, x and xi gatt, several articles of the sps Agreement, and pro- visions of other wto Agreements.61 On the failure of consultations, a panel was established in late July 2002 but was immediately suspended since the parties were seeking to find a negotiated solution. The parties reached a mutually satisfactory solution in November 2002.62 Turkey changed its con- trol certificate system to provide for automatic issue of import licenses once the required documents had been produced. It also undertook not to revert to its previous practices. However both parties stated that the mutually satis- factory solution was without prejudice to their wto rights and obligations, thus making it clear that they might invoke wto law in the event of problems in the future.63 Often an import ban may reflect deep-seated political and economic con- flicts. Such tensions are rarely evident in case reports, though clearly the poul- try disputes between the eu and the us were based on competition and structural conflicts between the two parties’ poultry industries as well as differ- ences in domestic regulatory arrangements. An example is ds 270 Australia – Fresh Fruit and Vegetables.64 On 18 October 2002 the Philippines requested consultations with Australia. The case concerned an Australian import ban
61 62 63 64
Import of Cattle, Swine and Grain from Canada, DS144, http://www.wto.org/english/ tratop_e/dispu_e/cases_e/ds144_e.htm, last accessed 12 September 2012. 61 Turkey – Certain Import Procedures for Fresh Fruit, Request for Consultations by Ecuador, World Trade Organization, DS237/1, G/L/472, G/SPS/GEN/275, G/LIC/D/323, G/AG/ GEN/48, S/L/101, 10 September 2010 (01–4237). 62 Turkey – Certain Import Procedures for Fresh Fruit, WT2237, Summary of the dispute to date available at http://www.wto/org/english/tratop_e?dispu_e/cases_e/ds237_e.htm, last accessed 12 September 2012. 63 Turkey – Certain Import Procedures for Fresh Fruit, Notification of Mutually Agreed Solution, World Trade Organization, DS237/4, 29 November 2002 (02–6589). 64 Australia – Certain Measures Affecting the Importation of Fresh Fruit and Vegetables, DS270, Summary of the dispute to date available at http://www.wto.org/english/tratop_e/ dispu_e/cases_e/ds2780_e.htm, last acccessed on 11 September 2012.
65 66 67 68 69 70
65 For an analysis of the case up to 2005, see Josyline Javelos and Andrew Schmitz, ‘Costs and Benefits of a wto Dispute: Philippine Bananas and the Australian Market’, The Estey Centre Journal of International Law and Trade Policy, 7, 1, 2006, pp. 58–83 (hereafter Javelos and Schmitz, ‘Costs’). 66 Quoted in ibid., at 59. 67 For more information, see the Lapanday Food Corporation website, http://www.lapanday .com, accessed 30 October 2012. 68 Javelos and Schmitz, ‘Costs’, supra note 65, at 66. See also fao, Economic and Social Development Department, The World Banana Economy, 1985–2002, Chapter 2: ‘Transna tional Companies in the World Banana Economy’, available at http://www.faco.org/docrep/ 007/y5102e/y5102e09.htm, accessed 21 January 2013. 69 Javelos and Schmitz, ‘Costs’ supra note 65, at 67. 70 Australia – Certain Measures Affecting the Importation of Fresh Fruit and Vegetables, DS270, Summary of the dispute to date available at http://www.wto.org/english/tratop_e/ dispu_e/cases_e/ds2780_e.htm, last acccessed on 11 September 2012.
71 72 73 74 75
71 Mexico – Certain Measures Preventing the Importation of Black Beans from Nicaragua, Request for Consultations by Nicaragua, World Trade Organization, WT/DS284/1, G/L/614, G/LIC/D/37, G/SPS/GEN/375, 20 March 2003 (03–1616). 72 Mexico – Certain Measures Preventing the Importation of Black Beans from Nicaragua, DS284/1, summary available at http://www.wto.org/english/tratop_e/dispu_e/cases_e/ ds284_e.htm, last accessed 12 September 2012. 73 gatt, supra note 1164, Article X:1. 74 sps Agreement, supra Chapter 4 note 4, Article 7 and Annex B(1), sps Agreement. 75 United States – Certain Measures Affecting Imports of Poultry from China, Panel Report, WT/DS392/r, adopted 25 October 2010 (hereafter us – Poultry from China).
Explanatory Statement (jes). China challenged Section 727 on the grounds of violation of Articles i:1 and xi:1 gatt, Article 4.2 AoA, and Articles 2.2, 2.3, 5.1, 5.2, 5.5, 5.6 and 8 sps. Note that on 28 February 2009 China enacted its new Food Safety Law.76 The United States argued that the challenged measure was merely a proce- dural requirement that was part of a continuing review of equivalence. In its view, Section 727 fell under Article 4 sps, not other sps provisions, so that a risk assessment under Article 5.1 sps was not necessary.77 In interpreting Article 4 sps, the Panel considered a 23 July 2004 decision by the sps Committee.78 The Decision explained that, in justifying its appropriate level of protection (alop), the importing Member should provide a risk assessment or a technical justifica- tion based on an international standard, guideline or recommendation.79 According to the Panel, the Decision80 was ‘not [legally] binding and does not determine the scope of Article 4’ but it ‘expands on the Members’ own under- standing of how Article 4 relates to the rest of the sps Agreement and how it is to be implemented’.81 From this analysis the Panel concluded that measures under Article 4 sps must also comply with other provisions of the sps Agreement.82 On this basis, the Panel considered that an Article 5.1 sps analysis must answer two questions: first, whether a risk assessment was conducted, appro- priate to the circumstances and taking account of ‘risk assessment techniques developed by the relevant international organizations and the elements listed in Article 5.2’, and second, whether the measure was based on the risk assess- ment.83 It found Section 727 to be contrary to Articles 5.1 and 5.2 sps. The United States evidence concerned China’s food safety regime in general or spe- cific food safety problems in China, such as bird flu, poultry smuggling and melamine in chicken feed, but it did not, according to the Panel, ‘establish the
76 77 78 79 existence80 of a risk of consuming unsafe poultry from China’.84 The Panel therefore 81 82 83 84
76 Ibid., paragraph 2.27. 77 Ibid., paragraph 6.29. 78 Ibid., paragraphs 7.1134–7.137. 79 Ibid., paragraph 7.135. 80 Decision on the Implementation of Article 4 of the Agreement on Sanitary and Phyto sanitary Measures, 23 July 2004, revised version available at https://docs.wto.org/dol2fe/ Pages/FE_Search/FE_S_S009-DP.aspx?language=E&CatalogueIdList=79250,43597,36280, 89035,54139,14433,13336,16857,8054,2005&CurrentCatalogueIdIndex=3&FullTextSearch=, last accessed 14 January 2015. 81 us – Poultry from China, supra note 75, paragraph 7.136. 82 Ibid., paragraph 7.138. 83 Ibid., paragraph 7.173, see also paragraph 7.182. 84 Ibid., paragraphs 7.202–7.204.
85 86 87 88 89 90 91 92
85 Ibid., paragraph 7.203. 86 Ibid., paragraph 7.294. 87 Ibid., paragraphs 7.316–7.319. 88 Ibid., paragraphs 7.393–7.396. 89 Ibid., paragraph 7.441. 90 Ibid., paragraph 7.483. 91 Indonesia – Importation of Horticultural Products, Animals and Animal Products, Request for Consultations by the United States, WT/DS455/1, G/L/1022, g/AG/GEN/108, G/LIC/ D/44, 14 JAnuary 2013, available at www.wto.org, last visited 31 October 2014. 92 See the Current Status report at http://www.wto.org/english/tratop_e/dispu_e/cases_e/ ds465_e.htm, last visited on 31 October 2014.
Licensing Agreement and the Agreement on Preshipment Inspection.93 New Zealand, Canada, the eu and Thailand, Australia joined the consultations.94 So far, no panel has been established. Also on 30 August 2013, New Zealand requested consultations with Indonesia concerning the importation of hor- ticultural products, animals and animal products.95 It complained about Indonesian measures including quotas, import restrictions and discretionary or non-automatic import licensing schemes, which Indonesia tried to justify as necessary to restrict imports when domestic supply was sufficient to meet domestic demand. New Zealand considered that these measures were con- trary to various articles of the gatt, the Agreement on Agriculture, the Import Licensing Agreement and the Agreement on Preshipment Inspection. The us, Canada, the eu, Thailand and Australia joined the consultations. So far a panel has not been established.96 On 8 May 2014 New Zealand again requested con- sultations with New Zealand regarding essentially the same measures.97 The us, Thailand, Canada, the eu, Chinese Taipei and Australia joined the consul- tations. A panel has not yet been established.98 Finally, also on 8 May 2014 the United States once again requested consulta- tions with Indonesia concerning measures imposed on importation of horticul- tural products, animals and animal products.99 New Zealand, Thailand, Canada, the eu, Chinese Taipei and Australia joined the consultations. So far a panel has
93 94 95 96 97 98 99 100not yet been established.100 The continued requests for consultations by the
93 Indonesia – Importation of Horticultural Products, Animals and Animal Products, Request for Consultations by the United States, WT/DS465/1, G/L/1037, g/AG/GEN/112, G/LIC/ D/45, G/PSI/D,1, 9 Septemer 2013, available at www.wto.org, last visited 31 October 2014. 94 See Current Status at http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds465_e.htm, last visited 31 October 2014. 95 Indonesia – Importation of Horticultural Products, Animals and Animal Products, Request for Consultations by New Zealand, WT/DS466/1, G/L/1038, G/AG/GEN/113, G/LIOC/D/46, G/PSI/D/2, 9 September 2013. 96 See Current Status as http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds466_e.htm, last visited 31 October 2014. 97 Indonesia – Importation of Horticultural Products, Animals and Animal Products, Request for Consultations by New Zealand, WT/DS477/1, G/L/1068, G/AG/GEN/118, G/LIC/D/47, G/{SI/D/3, 15 May 2014. 98 See Current Status at http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds477_e.htm, last visited 31 October 2014. 99 Indonesia – Importation of Horticultural Products, Animals and Animal Products, Request for Consultations by the United States, WT/DS478/1, G/L/1069, G/AG/GEN/119, G/LIC/ D/48, G/PSI/D/4, 15 May 2014. 100 See Current Status at http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds478_e.htm, last visited 31 October 2014.
Import Bans – Health and Quality Standards In addition to the use of procedural devices to prohibit imports, countries fre- quently use health and quality standards as de facto import bans (see Table 6.3). This category is the most highly populated among the categories of cases distinguished for analysis here, with a total of seven cases. Hungary joined the wto in 1995. Subsequently it became a Member State of the European Union in 2004. On the eve of its accession to the eu, Hungary brought three complaints to the wto dispute settlement system in rapid succession. The first case was DS240 Romania – Wheat and Wheat Flour. On 18 October 2001, Hungary requested consultations with Romania, which joined the eu only in 2007. It complained that a Romanian joint decree of the Ministry of Agriculture, Food Industry and Forestry, the Ministry of Family and Health and the National Consumer Protection Authority was contrary to Articles iii and xi gatt. The joint decree prohibited the importation of wheat and wheat flour that did not meet certain quality standards; domestic products were not subject to the same requirements.102 Subsequently Hungary requested the dsu urgency procedure, because Romania proposed consultations only a month after the request and the decree totally blocked all Hungarian wheat exports.103 The Romanian measures clearly were incompatible with Romania’s wto
101 102 103
101 See Olivier Charnoz and Paul Forster, ‘The Global Health Impact of Local Power Relations: Fragmented Governance, Big Business and Organisational Bias in Indonesian Animal Health Policies’, lse Global Governance Working Paper wp 02/2011. 102 Romania – Import Prohibition on Wheat and Wheat Flour, Request for Consultations by Hungary, World Trade Organization, WT/DS240/1, 7 November 2001 (01–5504). 103 Romania – Import Prohibition on Wheat and Wheat Flour, Request for Consultations by Hungary, Addendum, World Trade Organization, WT/DS240/1/Add.1, 28 November 2001 (01–6079).
Table 6.3 Cases on import bans based on health and quality standards
Case number and Case name Complainant Product Procedural status filing date
DS240. 18.10.2001 Romania – Wheat Hungary Wheat and Measures abrogated, and Wheat Flour wheat flour complaint withdrawn DS256, 3.5.2002 Turkey – Pet Food Hungary Pet food In consultation DS297, 9.7.2003 Croatia – Live Hungary Live animals Mutually agreed Animals and Meat and meat solution Products products DS391, 9.4.2009 Korea – Bovine Canada Beef Mutually agreed Meat solution DS447, 30.8.2012 usa – Animals Argentina Beef Panel composed on 8 and Meat August 2013 DS448, 3.9.2012 usa – Fresh Argentina Lemons In consultation Lemons DS475, 8.4.2014 Russian – Live eu Live pigs, pork Panel established, but Pigs, Pork and and other pig not yet composed other Pig Products products
obligations, in particular the Article iii gatt principle of national treatment. During the consultations, Romania abrogated the measures and on 20 December Hungary withdrew its complaint.104 In a second case, DS256, Hungary on 3 May 2002 requested consultations with Turkey concerning Turkey’s import ban on pet food from Hungary.105 The ban had been applied since early 2001 to pet food imports from any European countries to protect against bovine spongiform encephalopathy (bse, ‘mad cow disease’). However, Hungary was a bse-free country, the products in
104 105
104 Romania – Import Prohibition on Wheat and Wheat Flour, DS240, summary available at http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds240_e.htm, last accessed 12 September 2012. 105 The case is included here because it concerns public health and the sps Agreement. Note that pet food is not considered to be ‘food’ under eu food law: see the definition of ‘food’ in Article 2 of Regulation (ec) No 178/2002 of the European Parliament and of the Council of 28 January 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, ojec, 1 February 2002L31/1.
question were used only for feeding cats and dogs, and Hungary claimed that the ban had been neither officially published nor notified to the relevant wto committee.106 It argued that the ban was contrary to Article xi gatt, the Agreement on Agriculture, and Articles 2, 5, 6 and 7 and Annex B of the sps Agreement. According to the wto website the case is still in consultation.107 However, a Turkish Government website lists the case as having been resolved during consultations.108 The latter is the most likely result. Given Hungary’s accession to the eu and taking account of the strength of its legal arguments, it was to be expected that the case would be settled by mutual agreement, even though no mutually agreed solution seems to have been notified to the wto. Hungary and an alleged threat of bse were also concerned in a third case, ds 297, Croatia – Live Animals and Meat Products In 2003 Hungary challenged measures introduced by Croatia allegedly to prevent the spread of bse. Refer ring to Articles xi and xx gatt and to the sps Agreement, it argued that the measure had not been notified to the sps Committee, was overly broad, was not based on any scientific principle or international standard relating to bse and did not appear to be based on a risk assessment. The parties reached a mutually satisfactory solution later in 2003; this was notified to the wto dsb about six years later, on 30 January 2009.109 Another import ban case, DS391 Korea – Bovine Meat and Meat Products, also involved bse. Canada complained regarding Korean measures on impor- tation of bovine meat and meat products from Canada. It requested consulta- tions on 9 April 2009. It challenged a Korean administrative order prohibiting the importation of beef and other meat products from Canada and provisions of the Korean Livestock Epidemic Prevention Act which subjected such meat imports to the approval of the Korean National Assembly. Korea purportedly maintained a ban on such products to protect against alleged risks from bse. Canada argued that the measures contravened Articles 2.2, 2.3, 3.1, 3.3, 5.1, 5.5,
106 107 108 5.6109 and 8, together with Annex C(1)(a) sps; that the Korean measures did not
106 Turkey – Import Ban on Pet Food from Hungary, Request for Consultations by Hungary, World Trade Organization, WT/DS256/1, G/L/538, G/SPS/GEN/316, G/AG/GEN/51, 7 May 2002 (02–2579). 107 See DS256, Turkey – Import Ban on Pet Food from Hungary, Summary of the dispute to date, available at http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds256_e.htm, last accessed 22 January 2013. 108 See ‘Turkey and the wto Dispute Settlement Mechanism’, 19 November 2012, available at www.economy.gov.tr, accessed 22 January 2013. 109 Croatia – Measures Affecting Imports of Live Animals and Meat Products, DS297, summary available at http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds297_e.htm, last accessed 12 September 2012.
110 111 112
110 Korea – Measures Affecting the Importation of Bovine Meat and Meat Products from Canada, Request for the Establishment of a Panel by Canada, WT/DS391/3, 10 July 2009; suspended under Article 12.12 dsu on 4 July 2011; mutually agreed solution reached by the parties, according to press reports (www.worldtradelaw.net., visited 06/12/2011). On the content of the agreement, see Korea – Measures Affecting the Importation of Bovine Meat and Meat Productsfrom Canada, DS391, Summary of the dispute to date available at http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds391_e.htm, last accessed 12 September 2012. 111 As of 23 January 2013, 5 of the 18 cases in which Argentina was a complainant were against the us, and 5 of the 22 cases in which Argentina was a respondent were brought by the us. Argentina also complained 5 times against Chilean measures and was a respondent in 8 cases brought by the eu, but none of these cases concerned food safety: see: http://www .wto.org/english/thewto_e/countries_e/argentina_e.htm, accessed 23 January 2013. For examples of the different perspectives, see Merco Press, South Atlantic News Agency, ‘Argentina hits back at the us and will complain to the wto trade barriers on meats and lemons’, Montevideo, January 23, 2013, available at http://en.mercopress.com/2012/08/21/ argentina-hits-back-at-us-and-will-complain-in-wto-trade-barriers-on-meats-and-lemons, accessed 23 January 2013; and Tom Miles, ‘us, eu blast Argentina’s trade restrictions at wto’, Reuters, Geneva, 30 March 2012, available at http://www.reuters.com/article/2012/ 03/30/us-argentina-wto-idUSBRE82T1H520120330, accessed 23 January 2013. 112 See eg Tom Barkley and Ken Parks, ‘u.s. cuts trade preferences to Argentina’, The Wall Street Journal, Europe Edition, Monday, 26 March 2012, available at http://online.wsj.com/ article/SB10001424052702304177104577305652479085184.html, accessed 23 January 2013.
113 114 115 Arizona116 and California citrus growers to challenge the us Department of
113 United States – Measures Affecting the Importation of Animals, Meat and Other Animal Products from Argentina, Request for Consultations by Argentina, World Trade Organi zation, WT/DS447/1, G/L/998, G/SPS/GEN/1186, 4 September 2012 (12–4749); corrigen- dum: United States – Measures Affecting the Importation of Animals, Meat and Other Animal Products from Argentina, Request for Consultations by Argentina, Corrigendum, World Trade Organization, WT/DS447/1/Corr.1, G/L/998/Corr.1, G/SPS/GEN/1186/Corr.1, 11 September 2012 (12–4836). 114 Article 6.1 dsu provides that ‘If the complaining party so requests, a panel shall be estab- lished at the dsb meeting following that at which the request first appears as an item on the dsb’s agenda, unless at that meeting the dsb decides by consensus not to establish a panel’. Hence the respondent is able to block establishment of a panel on the first request only. 115 World Trade Organization, ‘Panel established on Argentina’s disputes with eu, us and Japan’, wto: 2013 News Items, Dispute Settlement Body, Summary of the meeting, 28 January 2013, available at http://www.wto.org/engish/news_e/news13_e/dsb_28jan13_e .htm, accessed 3 February 2013. 116 See World Trade Organization, Dispute Settlement: Dispute DS447, United States – Measures Affecting the Importation of Animals, Meat and Other Animal Products from Argentina, Current status, Summary of the dispute to date, available at http://www.wto .org/english/tratop_e/dispu_e/cases_e/ds447_e.htm, last accessed 9 April 2013.
Agriculture’s decision to allow citrus imports from Argentina.117 Argentina considered the us measures to be lacking in scientific justification and to be contrary to numerous articles of gatt, the sps Agreement and the wto Agreement.118 The case is currently underway. In a recent case the eu on 8 April 2014, in the midst of a developing political crisis regarding the Ukraine, requested consultations with Russia concerning measures on importation of live pigs and their genetic material, pork, pork products and certain other commodities from the eu.119 Russia claimed that the measures were based on concerns about African Swine Fever in Europe. The eu requested regionalisation of the measures on the ground that the areas which were the source of eu exports had been separated from affected areas, but this request was not granted. The eu argued that the Russia measures were inconsistent with Russia’s obligations under the gatt and the sps Agreement. On 22 July 2014 the wto established a panel. Australia, China, India, Japan, Korea, Norway, Chinese Taipei, the United States, Brazil and South Africa reserved their third party rights.120
Post-Importation Testing and Inspection Challenges in the wto system may also concern measures which require test- ing and inspection of products once imported (see Table 6.4). The United States and Korea were both founding Members of the wto.
117 118 119 In 120 April 1995, soon after the wto was established, the United States in DS3
117 Harlan Land Company, et al. vs. United States Department of Agriculture, et al. 3 Case #CV-F-00-6106-REC/LJO (D. Ariz. 27 September 2001). For comment on the legal and political context by the u.s. Citrus Science Council, see ‘California Citrus Growers Sue usda Over Argentina Citrus Imports’, RiskWorld pr Newswire, Press Release, available at http://www.riskworld.com/pressrel/2000/00q3/PR00a029.htm, last accessed 23 September 2012. 118 United States – Measures Affecting the Importation of Fresh Lemons, Request for Consul tations by Argentina, World Trade Organization, WT/DS448/1, G/L/1000, G/SPS/GEN/1187, 5 September 2012 (12–4777); United States – Measures Affecting the Importation of Fresh Lemons, Request for Consultations by Argentina, Corrigendum World Trade Organization, WT/DS448/1/Corr.1, G/L/1000/Corr.1, G/SPS/GEN/1187/Corr.1, 11 September 2012 (12–4838). See also Summary to date, United States – Measures Affecting the Importation of Fresh Lemons, available at http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds448_e.htm, last accessed 12 September 2012. 119 Russian Federation – Measures on the Importation of Live Pigs, Pork and Other Pig Products from the European Union, Request for Consultations by the European Union, WT/DS475/1, G/L/1065, G/SPS/GEN/1325, 14 April 2014. 120 See Current Status at http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds475_e .htm, last visited 31 October 2014.
Table 6.4 Cases on post-importation testing and inspection measures
Case number Case name Complainant Product Procedural and filing date status
DS3, 4.4.1995 Korea – Testing and us Agricultural In consultation Inspection of Products Agricultural Products DS41, 24.5.1996 Korea – Inspection of us Agricultural In consultation Agricultural Products products
Korea – Testing and Inspection of Agricultural Products requested consultations with Korea about measures for testing and inspection of imported agricultural products.121 For most of the preceding years (and afterwards except for 1996), the United States had a negative trade balance with Korea.122 It may have seen recourse to the wto as an important means of improving its export trade. Korea, in contrast, was a reluctant litigant, then characterized by an ‘dispute aversion attitude’, lacking sufficient expertise in wto law and also benefitting from a trade surplus with countries, such as the us, which adopted protection- ist measures, and therefore reluctant to litigate.123 In June 1996, in DS41 Korea – Inspection of Agricultural Products, the United States again requested consultations with Korea about similar measures.124 The us request included ‘all amendments, revisions, and new measures’
121 122 123 124
121 Korea – Measures Concerning Inspection of Agricultural Products, DS3, summary available at http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds3_e.htm, last accessed 12 September 2012. 122 See United States Department of Commerce, United States Census Bureau, Foreign Trade, ‘Trade in Goods with Korea, South’, for the years between 1990 and 1996, available at http://www.census.gov/foreign-trade/balance/c5800.html#1995, accessed 23 January 2013. 123 See Dukgeun Ahn, ‘Korea in the gatt/wto Dispute Settlement System: Legal Battle for Economic Development’, Journal of International Economic Law, 6, 3, 2003, 597–633, at 610 (hereafter Ahn, ‘Korea’); and relying mainly on Ahn but extending his insights, Henry Gao, ‘Aggressive Legalism: The East Asian Experience and Lessons for China’, in Henry Gao and Donald Lewis (eds), China’s Participation in the wto (Cameron May, London, 2005) at 320. 124 Korea – Measures Concerning Inspection of Agricultural Products, DS41, summary avail- able at http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds41_e.htm, last accessed 12 September 2012.
Shelf-Life The final category of cases examined here concerns the shelf-life of product (see Table 6.5). Shelf-life refers to ‘the period of time under defined conditions of storage, after manufacture or packing, for which a food product will remain safe and fit for use’.128 The shelf-life of food products is increasingly considered to be a crucial element in informing consumers about and seeking to ensure food safety. Rules about shelf-life affect when, and possibly whether a product can actually be marketed. Such rules may especially affect imports. They may thus in practice may have different effects on domestic and imported products.
Table 6.5 Cases on the shelf-life of products
Case number Case name Complainant Product Procedural and filing date status
DS5, 3.5.1995 Korea – Shelf us Sausages, canned Mutually agreed Life meat, etc solution DS20, 8.11.1995 Korea – Bottled Canada Bottled water Mutually agreed water solution
125 126 127 128
125 Korea – Measures Concerning Inspection of Agricultural Products, Request for Consultation by the United States, WT/DS41/1, G/L/76, G/SPS/W/64, G/TBT/D/6, G/AG/W/25, 31 May 1996, available at http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds41_e.htm, accessed 23 January 2013. 126 Korea – Measures Concerning Inspection of Agricultural Products, DS41, summary avail- able at http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds41_e.htm, last accessed 12 September 2012. 127 Ahn, ‘Korea’, supra note 123, at 610. 128 Dominic Man, Shelf Life (Food Industry Briefing) (Wiley-Blackwell, Oxford, 2002), at 3.
Most countries use shelf-lives or ‘use-by’ dates which are determined, usually but not always, by the manufacturer.129 DS5 Korea – Measures Concerning the Shelf-Life of Products exemplifies the conflict over who should determine shelf- life. Brought soon after the wto was established, it was another case in which the us sought to use the wto to open Korean markets and improve its trade balance. The shelf-life of many food products sold in Korea was determined by national legislation, the Korean Food Code. In contrast, the us does not have any uniform national system, an open-dating system addressed prin- cipally to retailers rather than a sell-by or use-by system is frequently used, dates are usually determined by manufacturers, and some food products are undated.130 The Republic of Korea in February 1994 applied its Food Code in enforcing a 30-day shelf life against United States sausages. According to the us, the period was so short that ‘by the time a product cleared…customs and reached the shops, the dates were close to expiration or had already expired’.131 The dispute expanded to other products. Subsequently the main trade organi- zations of the United States meat industry, the National Cattlemen’s Asso ciation, the National Pork Producers’ Council and the American Meat Institute, filed a Section 301 petition against Korea. The ustr accepted the Section 301 petition in November 1994. Its investigation reportedly showed that ‘South Korean shelf-life standards were not supported by scientific studies and were
129 130 131 applied132 in an arbitrary and discriminatory manner’.132 The us and Korea began
129 See eg ibid., and New Zealand Food Safety Authority, ‘A Guide to Calculating the Shelf-Life of Food: Information Booklet for the Food Industry’ (New Zealand Food Safety Authority, Wellington, 2005), available at http://www.foodsafety.govt.nz/elibrary/industry/guide _calculating-contains_background.pdf, accessed 24 January 2013; Food Science Australia, ‘Shelf-Life Testing: Methods for Determining the Claimable Life of Meat Products’, Meat Technology Update, 2/06 – April 2006, available at http://www.mulwarra.com.au/resources/ site1/general/MEAT_TECHNOLOGY_UPDATE_06-2.pdf, accessed 24 January 2013. 130 United States Department of Agriculture (usda), Food Safety and Inspection Service, ‘Food Labelling: Food Dating’, Fact Sheets, available at http://www.fsis.usda.gov/Fact _Sheets/Food_Product_Dating/index.asp, accessed 24 January 2013. Twenty states require dating of some foods, but many do not require dating at all: Ralph Meer and Scottie Misner, ‘Food Product Dating and Storage Times’, available at http://cals.arizona.edu/ pubs/health/az1068.html, accessed 24 January 2013. 131 United States Department of Agriculture, usda Economic Research Service, Issues & Analysis, ‘South Korea’s World Trade Organization Cases’, p. 5, available at http://www.ers .usda.gov/topics/international-markets-trade/countries-regions/south-korea/issues -analysis.aspx#shelf, accessed 28 10 2012. This article is the source of the information about the background to the wto case. 132 United States Department of Agriculture, usda Economic Research Service, Issues & Analysis, ‘South Korea’s World Trade Organization Cases’, p. 5, available at
exact.133 135 Korean Food Code shelf-life requirements for other products were 134 135
http://www.ers.usda.gov/topics/international-markets-trade/countries-regions/ south-korea/issues-analysis.aspx#shelf, accessed 28 10 2012. 133 Korea – Measures Concerning the Shelf-Life of Products, Request for Consultations by the United States, World Trade Organization, Restricted, WT/DS5/1, 5 May 1995 (95–1170). 134 Korea – Measures Concerning the Shelf-Life of Products, Notification of Mutually Agreed Solution (20 July 1995), World Trade Organization, Restricted, WT/DS5/5, G/SPS/W/27, G/ TBT/D/3, G/AG/W/8, 31 July 1995, (95–2270); Korea – Measures Concerning the Shelf-Life of Products, Notification of Mutually Agreed Solution, Corrigendum, World Trade Organi zation Restricted, WT/DS5/Corr.1, G/SPS/W/27/Corr.1, G/TBT/D/3/Corr.1, G/AG/W/8/ Corr.1, 14 August 1995 (95–2383). 135 Korea – Measures Concerning the Shelf-Life of Products, Notification of Mutually Agreed Solution, Revision, Communication from the Republic of Korea, World Trade Organization,
136 137 138 139 140tional standards as such require shelf-life to be set by the manufacturer.140
Restricted, WT/DS5/5/Add.1/Rev.1, G/SPS/W/27/Add.1/Rev.1, G/TBT/D/3/Add.1/Rev.1, G/AG/W/8/Add.1/Rev.1, 22 April 1996 (96–1475). See also Korea – Measures Concerning the Shelf-Life of Products, Notification of Mutually Agreed Solution, Communication from the Republic of Korea, Addendum, World Trade Organization Restricted, WT/DS5/5/Add.4, G/SPS/W/27/Add.4, G/TBT/D/3/Add.4, G/AG/W/8/Add.4, 19 July 1996 (96–2847). 136 Korea – Measures Concerning the Shelf-Life of Products, Notification of Mutually Agreed Solution, Revision, Communication from the Republic of Korea, Addendum, World Trade Organization Restricted, WT/DS5/5/Add.2, G/SPS/W/27/Add.2, G/TBT/D/3/Add.2, G/ AG/W/8/Add.2, 22 April 1996 (96–1476). 137 Korea – Measures Concerning the Shelf-Life of Products, Notification of Mutually Agreed Solution, Revision, Communication from the Republic of Korea, Addendum, World Trade Organization Restricted, WT/DS5/5/Add.3, G/SPS/W/27/Add.3, G/TBT/D/3/Add.3, G/ AG/W/8/Add.3, 22 April 1996 (96–1477). A number of products remained subject to the shelf-life requirements in the Korean Food Code: see Korea – Measures Concerning the Shelf-Life of Products, Notification of Mutually Agreed Solution, Revision, Communication from the Republic of Korea, Addendum, World Trade Organization Restricted, WT/DS5/5/ Add.5, G/SPS/W/27/Add.5, G/TBT/D/3/Add.5, G/AG/W/8/Add.5, 20 September 1996 (96–3605). 138 Korea – Measures Concerning the Shelf-Life of Products, Notification of Mutually Agreed Solution, World Trade Organization WT/DS5/%, G/SPS/W/27, G/TBT/D/3, G/AG/W/8, 31 July 1995 (95–2270). 139 United States Department of Agriculture, usda Economic Research Service, Issues & Analysis, ‘South Korea’s World Trade Organization Cases’, p. 5, available at http://www.ers .usda.gov/topics/international-markets-trade/countries-regions/south-korea/issues -analysis.aspx#shelf, accessed 28 10 2012. Article xxii gatt refers to the settlement of disputes by consultation. See also Article 4 dsu. 140 Codex Alimentarius Standard on Labelling of Prepackaged Foods (codex stan 1–1985) applies to date marking, including date of manufacture, date of packaging, sell-by-date, date of minimum durability and use-by date. Sell-by date refers to shelf-life. However, this
For example, in September 2012, the Twelfth Session of the fao/wto Coordinating Committee for North America and the South West Pacific agreed to discontinue consideration of a discussion paper introduced by New Zealand on a harmonized approach to date marking.141 In this light, we may also recog- nize the case as constituting a victory, not only for the us shelf-life marking system, but also for a vision of the food economy as a global rather than a local activity. The case exported a view of food production, supply and consumption based on industrialized agriculture, global supply chains and international trade in food products, with market regulation determined by bilateral agree- ment, to the disadvantage of local food production, the consumption of local products and local regulation of local markets. From this perspective, it is eas- ier to understand the logic underlying us recourse to wto law in order to request consultations and thus begin the wto dispute settlement process. It is less easy to grasp whether basic wto principles were actually applied, as dis- tinguished from justifying particular positions in the negotiations. Certainly a manufacturer may have the greater knowledge and be most capable of carry- ing out testing to determine the shelf-life for its products. However, this is not the only means of determining shelf-life, and there is no indication in the avail- able documents of the case that Korean law actually discriminated among trading partners or against foreign products. DS20 Korea – Bottled Water also concerned shelf-life. After the us and Korea reached a mutually agreed solution in Korea – Shelf-Life, Canada separately complained about Korean measures setting the shelf-life of bottled water at six months from its production date, as well as about the Korea prohibition on certain treatment methods. Canada requested consultations in November 1995.142 The parties agreed that Korea would make its best efforts to ensure transparency of procedures for extending the shelf-life of bottled water. In addition, by focusing on procedures rather than substance, the parties reached
141 agreement142 on shelf-life. They agreed that Korea would make its best efforts to
standard does not give any indication about how the shelf-life or other date marking is to be determined. Nor are further details provided in Article 4.7 of the Standard. 141 Codex Alimentarius Commission, Joint fao/who Food Standards Programme, Thirty- sixth Session, Rome, Italy, 1–5 July 2013, Report of the Twelfth Session of the fao/who Coordinating Committee for North America and the South West Pacific, Madang, Papua New Guinea, 19–22 September 2012, rep13/naswp, available at http://www.codexalimentarius .org/input/download/report/782/REP13_NAe.pdf, accessed 28 10 2012. Korea was not part of this regional grouping. 142 Korea – Measures Concerning Bottled Water, Request for Consultations by Canada, World Trade Organization Restricted, WT/DS20/1G/L/33, G/SPS/W/35G/TBT/D/4, G/MA/3, G/ AG/w/14, 22 November 1995 (95–3655).
Discussion
Introduction Based on the preceding case summaries, this section looks at the number and types of cases and then considers which wto Members were involved and how, the ways in which their disputes were resolved, who won the cases, and the implications for the globalization of food safety rules and practices. It also notes how dispute settlement in cases involving food safety is related to dispute settlement in wto cases in general.
Number and Categories of Cases The chapter presented a total of 27 cases.144 The cases fall into five categories: pre-importation production and treatment measures (4 cases), post-importation testing and inspection (2 cases), import procedures (12 cases), import stan- dards (7 cases), and rules about product shelf-life (2 cases).
Participants Leaving aside third party participants, the cases involved a total of 18 wto Members. The United States was involved in the most cases with a total of 12 cases (7 as complainant and 5 as respondent), followed by Korea (6 as respon- dent), Canada (4 as complainant), ec (2 as complainant, 2 as respondent), New Zealand (3 as complaint), Hungary (3 as complainant), Argentina (2 as complainant), Australia (2 as respondent), Turkey (2 as respondent). All other Members were involved in only one case each. These statistics reflect, in particular,
143 144
143 Korea – Measures Concerning Bottled Water, Notification of Mutually Agreed Solution, World Trade Organization Restricted, WT/DS20/6G/L/33, Add,1; G/SPS/W/35G/Add.1; G/ TBT/D/4/Add.1; G/MA/3/Add.1; G/AG/W/14/Add.1, 6 May 1996 (96–1780). 144 One case (DS20 Korea – Bottled Water) is counted more than one because it falls into more than one category (pre-importation production and treatment measures, and shelf-life).
145 146 147
145 See statistics given by WorldTradeLaw.Net at http://www.worldtradelaw.net/dsc/ database/complaintscomplainant.asp, accessed 30 January 2013, and http://www. worldtradelaw.net/dsc/database/complaintsrespondent.asp, accessed 30 January 2013. 146 This income classification of countries according to per capita income is based on the World Bank classification for the year in which the case was brought; see http://www .worldtradelaw.net/dsc/database/complaintsclassification.asp, accessed 24 January 2013. The World Bank fixes income classification of countries on 1 July each year. The most recent criteria are High Income $12,476 or more, Upper Middle Income $4,036–$12,475, Lower Middle Income $1026–$4,035 and Low Income $1,025 or less: see http://data.worldbank .org/about/country-classifications, accessed 24 January 2013. This range does not of course apply to all cases considered here, notably the older cases. It is given for general indicative purposes only. The income classification of countries when the case was brought is more important for present purposes. 147 See WorldTradeLaw.Net, ‘wto Complaints Sorted by Type of Economy’, available at http://www.worldtradelaw.net/dsc/database/complaintsrespondent.asp, accessed 30 January 2013, and WorldTradeLaw.Net, ‘wto Complaints Grouped by Income Classification’, avail- able at http://www.worldtradelaw.net/dsc/database/classificationcount.asp, accessed 30 January 2013.
If, however, we distinguish between complainants and respondents accord- ing to income classification of the parties, a more interesting picture emerges. There are 27 cases with a total of 54 participants. Table 6.6 shows complainants and respondents in the food safety cases according to their income classification. For each entry, it gives the numbers and percentage [of 54 total participants]. This table shows that high income countries bring the most cases and also are targeted most often as respondents, reflecting their export capacity and the attraction of their markets. Upper middle income countries participated slightly more often as complainants than as respondents, though their total participation was much lower than that of high income countries. Lower middle income coun- tries and lower income countries participate most frequently as respondents, reflecting their trade balance and weak capacity to participate in the wto.148 In this respect, however, food safety cases are not unique. While recognizing the potential shortcomings of statistics based on such a small universe of cases (27 cases in total), we can push the calculations one step further and compare these food safety cases to all wto cases since 1995. The breakdown of wto cases to date is shown in Table 6.7. This pattern is consistent with the hypothesis of an implicit ‘institutional bias’ in the wto dispute settlement system,149 if by this we refer to the way in
Table 6.6 Income classification of complainants and respondents in food safety cases considered here
Income classification of party Complainant Respondent Total
High Income 18 (33%) 16 (30%) 34 (63%) Upper Middle Income 5 (9%) 3 (6%) 8 (15%) Lower Middle Income 3 (6%) 7 (13%) 10 (19%) Low Income 1 (2%) 1 (2%) 2 (4%) Total 27 (50%) 27 (50%) 54 (100%)
148 149
148 See more generally Marc Busch, Eric Reinhardt and Gregory Shaffer, ‘Does Legal Capacity Matter: A Survey of wto Members’, World Trade Review, 8, 2009, 559–577. 149 See also Chad P. Bown, ‘Participation in wto Dispute Settlement: Complainants, Interested Parties, and Free Riders’, World Bank Economic Review, 9, 2055, 287–310; David Evans and Gregory Shaffer, ‘Introduction: The Developing Country Experience in wto Dispute Settlement’, in Gregory Shaffer and Ricardo Mélendez-Ortiz, Dispute Settlement at the wto: The Developing Country Experience (Cambridge University Press, Cambridge, 2010), pp. 1–15.
Table 6.7 Income classification of complainants and respondents in all wto cases
Income classification of party Complainant Respondent Total
High Income 292 287 579 Upper Middle Income 107 95 202 Lower Middle Income 71 85 156 Low Income 28 24 52 Total 498 491 989
Note: This Table was calculated by the author from data presented in ‘WorldTradeLaw.Net’, ‘wto Complaints Grouped by Income Classification’, available at http://www.worldtradelaw.net/databases/classificationcount. php, accessed 20 October 2014. which the institution reflects an orientation toward using or not using the sys- tem. At least as illustrated by the cases examined here, however, this bias is against low income countries rather than against developing countries as a whole. In other words, it refers to the use of the system by specific groups of wto Members classified according to per capita income.150 It does not neces- sarily refer to whether Members in such groups win cases or not, as will be seen below. wto Members in the low income category usually, if not always, have a lower trade volume and less legal and institutional capacity than other wto Members. Now we can compare the 27 food safety cases with 54 participants to the total of 482 wto cases with 989 participants according to the income classification of complainants and respondents.151 Table 6.8 presents a comparison of the food safety cases considered here with the totality of wto cases to date accord- ing to the income classification of complaints and respondents.
150 151
150 Turk argues that reputation is the main factor influencing recourse to the wto dispute settlement system by Upper Middle Income and Lower Middle Income countries, as dis- tinguished from Low Income countries for which resources are the main factor: see Matthew Turk, ‘Why Does the Complainant Always Win At the wto?: A Reputation- Based Theory of Litigation at the World Trade Organization’ (August 1, 2010), Northwestern Journal of International Law & Business, 31, 2011, 385–437, Available at ssrn: http://ssrn .com/abstract=1780558, at 157 (hereafter Turk, ‘Why’). 151 These calculations are my own (fs), based on the statistical information provided by WorldTradeLaw.Net, in particular ‘wto Complaints Grouped by Income Classification’, available at http://www.worldtradelaw.net/dsc/database/classificationcount.asp, accessed 24 January 2013.
Table 6.8 Comparison of food safety cases considered here and total wto cases according to income classification of complainants and respondents
High Upper middle Lower middle Low Totals income income income income
Complainant: Food Safety 33% 9% 6% 2% 50% Complainant: wto 30% 11% 7% 3% 50% Respondent: Food Safety 30% 6% 13% 2% 50% Respondent: wto 29% 10% 9% 2% 50% Total: Food Safety 63% 15% 19% 4% 100% Total: wto 59% 20% 16% 5% 100%
The two sets of calculations are strikingly similar. From the standpoint of income classification groupings of the complainants and respondents, the food safety cases and wto cases in general present virtually the same profile. From this standpoint at least, there is nothing special about the food safety cases considered here. The case law is dominated by high income countries, with upper middle income and lower middle income countries playing a much less significant role, and low income countries hardly being visible at all.
Mode of Settlement Next, let us consider how disputes are settled. Table 6.9 presents the proce- dural outcomes of the 27 cases on food safety. Eight cases were resolved by a mutually satisfactory agreement. One case was withdrawn. In another case the challenged measure was abrogated and the case was withdrawn. Six cases were at least nominally in consultation even after a period of three years. In two cases a panel was established more than three years ago but had not yet been composed. These cases are sufficiently old that we may consider them to have been settled by stalemate or de facto withdrawal, even though no procedural outcome was notified to the wto.152 Five recently registered cases are still in consultation. In one recent case, a panel has just been composed. In two recent cases a panel has been established but not yet composed. In other words, out of a total of 27 cases, 18 cases have
152
152 Busch and Reinhardt remark that consultations are ‘sometimes not even reported to the gatt/wto until after they are concluded’: Marc Busch and Eric Reinhardt, ‘Bargai ning in the Shadow of the Law: Early Settlement in gatt/wto Disputes’, Fordham International Law Journal, 24, 2000–2001, 158–172 at 171 (hereafter Busch and Reinhardt, ‘Bargaining’).
Table 6.9 Procedural outcome of cases on food safety
Case numbers Procedural outcome Total cases
DS5, DS20, DS20,153 DS72, Mutually agreed solution 8 DS237, DS287, DS297, DS391 DS240, DS284 Complaint withdrawn, measure 2 abrogated and complaint withdrawn DS3, DS41, DS100, DS133, In consultation >3 years 6 DS144, DS256 DS270, DS389 Panel established >3 years ago but 2 not composed DS392 Report(s) adopted, no further action 1 required DS448, DS465, DS466, In consultation <3 years 5 DS477, DS478 DS447 Panel composed <3 years ago 1 DS455, DS475 Panel established <3 years ago but 2 not yet composed been settled by negotiations, were withdrawn, or otherwise ended in apparent stalemate during the consultation phase of the wto dispute settlement pro- cess. One case resulted in an accepted panel report. So far, none have been appealed to the Appellate Body. Since so far only one of these cases has pro- ceeded to a panel, these findings do not lend any particular support Busch and Reinhardt’s suggestion suggest that democratic states are most likely to settle their disputes early and cooperatively because their governments are account- able at the ballot box and do not want to risk greater publicity of alleged breaches of wto law.154 From this perspective, the food safety cases examined here might seem to differ significantly, not only from the high-profile sps and tbt cases which have been heard by a panel or by a panel and the Appellate Body,155 but also from wto cases in general. They differ of course from cases which, following consultations, went to a panel and sometimes also to the Appellate Body,
153 154 155
153 DS20 is counted twice because it involves two distinct issues. 154 Busch and Reinhard, supra note 152, at 167. 155 On these cases, see Chapter 7 of the book.
156 157 158 159 160 161three hours and takes place in a small wto meeting room or a Geneva mission.
156 Busch and Reinhardt, ‘Bargaining’, supra note 152, at 158–159.Their empirical study is based on all cases which refer to gatt/wto law, name defendants, allege infringement of specific legal rights, ‘most often in the form of a “request for consultations”’ (id. at 161). 157 C. Christopher Parlin, ‘Operation of Consultations, Deterrence, and Mediation’, Law and Policy in International Business, 31, 1999–2000, 565–572, at 567–568. 158 Ibid., at 567–568. 159 Busch and Reinhardt, ‘Bargaining’, supra note 152, at 161. 160 Gary N. Horlick and Glenn R. Butterton, ‘A Problem of Process in wto Jurisprudence: Identifying Disputed Issues in Panels and Consultations’, Law & Policy in International Business, 31, 1999–2000, 573–582 at 580 (first quotation), 581 (second quotation). 161 On the extent to which information gained during consultations can be used subse- quently before a panel, see Schuchhardt, ‘Consultations’, supra note 21. On relations between consultations and panel proceedings in general, see Zhang, Consultation, supra note 15, 197–275; Hélène Ruiz-Fabri, ‘The Relationship between Negotiations and Third- Party Dispute Settlement at the wto, with an Emphasis on the ec-Bananas Dispute’, in Laurence Boisson de Chazournes, Marcelo G. Kohen, and Jorges E. Viñuales (eds), Diplomatic and Judicial Means of Dispute Settlement (Martinus Nijhoff, Leiden and Boston, 2013), 86–118 (hereafter Ruiz-Fabri, ‘Relationship’). See also William J. Davey and Amelia Porges, ‘Performance of the System I: Consultations & Deterrence’, International Lawyer, 32, 3, 1998, 695–707, at 705 (hereafter Davy and Porges, ‘Performance’).
Consultations are generally conducted in English with no interpreters, no tran- script, and no taping’.162 Usually only the parties to the dispute are involved, unless a party approves the request of other Members with a substantial trade interest in the dispute to join the consultations.163 Any mutually accepted solu- tion reached during the consultation phase must be compatible with the wto agreements.164 Parties are required to notify mutually agreed solutions to the dsb and relevant Councils and Committees.165 If a dispute proceeds to litiga- tion, the panel, the Appellate Body and the dsb consider only whether consul- tations have taken place as required. Currently they do not review the conduct or substance of consultations, so there is no formal wto supervision over the requirement to consult in good faith or the adequacy of consultation.166 Now we can consider the outcomes of these cases in relation to several hypo theses regarding the escalation of wto disputes, in other words, whether dis- putes are settled during consultations or whether they continue to the panel/ Appellate Body stage.167 Guzman and Simmons analyze how the nature of the
162 163 164 165 166 167
162 Davey and Porges, ‘Performance’ supra note 161, at 704. When the article was written, Professor Davey was Director of the Legal Affairs Division of the wto, and Dr Porges was Senior Counsel for Dispute Settlement of the United States Trade Representative. 163 See dsu, supra note 21, Article 4.11. 164 Ibid., Article 3.5 dsu. For further discussion, see Hélène Ruiz-Fabri, ‘Relationship’, supra note 161, at 116–118. 165 dsu, supra note 21, Article 3.6. However, most mutually agreed solutions are not notified to the wto, or if at all are notified after full implementation: see Ruiz-Fabri, ‘Relationship’, supra note 163, at 109, 116. 166 See European Communities – Regime for the Importation, Sale and Distribution of Bananas, Complaint by the United States, Request to Reactivate Consultations of September 17, 1998 by Ecuador, WT/DS27/R/USA, 22 May 1997, Report of the Panel, paragraph 7.19 [‘Consultations are…a matter reserved for the parties. The dsb is not involved; no panel is involved and the consultations are held in the absence of the Secretariat’.]; Korea – Taxes on Alcoholic Beverages, Report of the Panel, WT/DS75/R, WT/DS84R, 17 September 1998 [Appellate Body Report adopted 17 February 1999], paragraph 10.19 [‘In our view, the wto jurisprudence so far has not recognized any concept of “adequacy” of consultations. The only requirement under the dsu is that consultations were in fact held, or were at least requested, and that a period of sixty days has elapsed from the time consultations were requested to the time a request for a panel was made. What takes place in those consulta- tions is not the concern of a panel. … [C]onsultations are a critical and important part of the dsu. But, we have no mandate to investigate the adequacy of the consultation process that took place between the parties’.]; for further discussion, see Schuchhardt, ‘Consultations’, supra note 21, at 1222–1226. 167 For a brief summary of such research up to 2012, see Thomas Bernauer, Manfred Elsig, and Joost Pauwelyn, ‘Dispute Settlement Mechanism – Analysis and Problems’, in Amrita
Narlikar, Martin Daunton, and Robert Stern (eds), The Oxford Handbook on the World Trade Organization (Oxford University Press, Oxford, 2012), pp. 485–506, at 494–495. 168 Andrew Guzman and Beth A. Simmons, ‘To Settle or Empanel? An Empirical Analysis of Litigation and Settlement at the World Trade Organization’, Journal of Legal Studies, xxxi, January 2002, pp S205–S235, at S227 (hereafter Guzman and Simmons, ‘To Settle’). 169 See ibid., in particular at S211, including note 17. 170 See Schuchhardt, ‘Consultations’, supra note 21, at 1199, 1225. 171 Thomas Bernauer and Thomas Sattler, ‘Sind wto-Konflicte im Bereich des Umwelt-un Verbraucherschutzes Eskalationsträchtiger als Andere wto-Konflicte’, Zeitschrift fűr Internationale Beziehungen, 13, 2006, pp. 5–37, summarized in Thomas Bernauer, Manfred Elsig, and Joost Pauwelyn, ‘Dispute Settlement Mechanism – Analysis and Problems’, in Amrita Narlikar, Martin Daunton, and Robert Stern (eds), The Oxford Handbook on the World Trade Organization (Oxford University Press, Oxford, 2012), pp. 485–506 at 495 (hereafter Bernauer et al. ‘Problems’).
172 173
172 Thomas Sattler, Gabriele Spilker, and Thomas Bernauer, ‘Dispute Settlement as Rule Clarification or Enforcement? Evidence from the World Trade Organization’, Unpublished manuscript, eth Zurich, Center for Comparative and International Studies (cis), 2010, summarized in Bernauer et al., ‘Problems’, supra note 171, at 495. 173 China – Anti-dumping and Countervailing Duty Measures on Broiler Producs from the United States, DS427, Report of the Panel, Adopted 25 September 2013.
HC/HR Table 6.10 by Parties income category (respondent first) HC/LMR HC/UMR UMC/HR UMC/UMR UMC/LMR UMC/LR LMC/HR LMC/LMR LC/LMR
Winners and Losers We can carry the analysis further by focusing on who complains, against whom, and who wins. For the 27 cases, Table 6.11 shows the winners according to two dimensions: whether the winner was the complainant (or not), and the win- ner’s income category compared to that of the loser. Parties are grouped, as above, into four categories: High Income, Upper Middle Income, Lower Middle Income, and Low Income. The left-hand column indicates cases brought by Members in each category against Members in each of the other categories. Complainants are indicated first. Most cases (12 of 27) were brought by High Income wto Members against other High Income Members. All of these cases, however, involved Members which, with one exception (Canada-us) were not geographically contiguous (us-Korea, Canada-Korea, New Zealand-ec, ec- Australia, usa-ec). In all cases, complainants and respondents were important 174 175
174 Schuchhardt, ‘Consultations’, supra note 21, at 1230. 175 C. Christopher Parlin, ‘Operation of Consultations, Deterrence, and Mediation’, Law and Policy in International Business, 31, 1999–2000, 565–572, at 569.
Table 6.11 Complainants, respondents and winners in food safety cases
Parties by Case numbers Number Complainant Income category income category of cases wins of winner (respondent first) hc/hr DS3, DS5, 12 11 parties equal DS20, DS20, DS41, DS72, DS100, DS144, DS287, DS389, DS391, DS475 hc/umr DS133 1 1 higher hc/lmr DS455, DS465, 5 N/A higher DS466, DS477, DS478 hc/lr none none none umc/hr DS447, DS448 2 in progress; panel composed in DS447 on 8 August 2013 umc/umr DS297 1 1 parties equal umc/lmr DS256 1 1 higher umc/lr DS240 1 1 higher lmc/hr DS270, DS392 2 2* *Philippines/ Australia: appears to be a stalemate lmc/umr none none lmc/lmr DS237 1 1 parties equal lmc/lr none none lc/hr none none lc/umr DS284 1 1** **Nicaragua/Mexico: case withdrawn lc/lmr none none lc/lr none TOTAL 27 19 higher: 18; in progress: 8
176
176 This cut-off is consistent with the assumption by Guzman and Simmons that a panel is ‘highly unlikely to be formed’ in cases which have been in consultation for more than 3 years. In their study of settlement and litigation before the wto, they coded such cases as ‘nonpaneled’: See Guzman and Simmons, ‘To Settle’, supra note 168, at S212.
Conclusion
The wto dispute settlement system deals with food safety more frequently than is sometimes thought. If we are interested in the role of the wto in regu- lating food safety, we cannot limit our attention to the relatively small number of high-profile wto cases which deal with international standards. This chap- ter analyzed all wto food safety cases up to now which arose under wto agreements other than or in addition to the sps or tbt Agreements and which were not directly concerned with relations between the wto and international standards bodies. Virtually all such cases were settled, withdrawn or reached stalemate during consultation; in only a very few cases was a panel established. Complainants always won, and except when the case went to a panel, the win- ner was of equal or higher income category than the respondent. These cases are the ‘hidden jurisprudence’ of the wto with regard to food safety. They are not high-profile cases well-known to the public. They do not reach the upper levels of the wto dispute settlement system, and indeed they rarely proceed to the panel stage. Instead they are mostly handled, by settle- ment or otherwise, during consultations. Disputes are resolved, or at least con- cluded, by bilateral negotiations, sometimes between very unequal parties, rather than by decisions taken by a third party on the basis of multilaterally agreed rules. These processes represent ‘bargaining in the shadow of wto law’, if only because both complainants and respondents initially justify their posi- tion in terms of compatibility with wto law. This is even though, as others have argued, in wto law the ‘shadow’ is much less menacing than in domestic courts, because respondents who lose in wto cases often do not comply with panel, Appellate Body or Dispute Settlement Body reports and, in any event,
177 178 179
177 Schuchhardt, ‘Consultations’, supra note 21, at 1199, 1231. 178 Michael Palmer and Simon Roberts, Dispute Processes: adr and the Primary Forms of Decision Making (Butterworths, London, 1998), pp. 70–71. 179 Turk, ‘Why’, supra note 150, at 137–138.
180 181 182 183
180 See Busch and Reinhardt, ‘Bargaining’, supra note 154, who refer (at 164) to ‘bargaining in the shadow of weak law’; and Turk, ‘Why’, supra note 150, at 137–138. See also Chad Bown, ‘Trade Remedies and the wto Dispute Settlement System: Why Are So Few Challenged’, Journal of Legal Studies,34, 2005, 515–555, at 517. 181 See Snyder, Legal Pluralism, supra Chapter 2 note 7, especially Chapter 1. 182 I am grateful to Professor Giorgio Monti for stimulating my reflection on this point. 183 A useful comparator consists in the reasoned opinions of the European Commission in proceedings under Article 105 tfeu (competition law) or Articles 258 and 259 tfeu (infringement proceedings for non-fulfillment of eu obligations). On the Commission’s reasoned opinions as ‘hidden jurisprudence’ in infringement proceedings under then then Article 168 ec (now Article 258 tfeu), see Francis Snyder, ‘The Effectiveness of European Community Law: Institutions, Processes, Tools and Techniques’, Modern Law Review, 56, 1, January 1993, 19–54 at 29–30.
Are these results compatible with wto law? In principle, the answer should be ‘yes’.184 However, a mutually agreed solution, or other pre-panel settlement, does not necessarily resolve questions of the interpretation and application of wto law. Nor does it decide which of the two parties’ view of the law is legally correct. The basic features of consultations include a lack of ‘hard constraints’ regarding the identification of legal issues.185 Consequently, it is open to question whether a pre-panel conclusion, except for a mutually agreed solution, is consistent with Article 3.7 dsu to the effect that ‘In the absence of a mutually agreed solution, the first objective of the dispute settlement mechanism is usually to secure the with- drawal of the measures concerned if these are found to be inconsistent with the provisions of any of the covered agreements’.186 Indeed, Article 3.7 dsu suggests that, in legal terms, the withdrawal of a contested measure belongs not to the consultation stage but instead to later stages in the wto dispute settlement pro- cedure, namely the reports of the panel, Appellate Body and Dispute Settlement Body. The interpretation that the consultation phase itself does not compel with- drawal of a measure is strengthened by Article 4.5 dsu, which provides that ‘In the course of consultations in accordance with the provisions of a covered agree- ment, before resorting to further action under this Understanding, Members shall attempt to obtain satisfactory adjustment of the matter’.187 Satisfactory adjustment based on good faith negotiations, as distinguished from mere with- drawal of the challenged measure, is the core of a mutually agreed solution.188 So far, panels have not reviewed whether the good faith requirement was met.189 In consultations, the very meaning of what is ‘satisfactory’ in the sense of acceptable to both parties is inevitably informed by considerations of relative power, even though both power and rules are present, in varying degrees and serving varying purposes, in all forms of dispute settlement.190
184 185 186 187 188 189 190
184 See dsu, supra note 21, Article 3.5. 185 Gary N. Horlick and Len R. Butterton, ‘A Problem of Process in wto Jurisprudence: Identifying Disputed Issues in Panels and Consultations’, Law & Policy in International Business, 31, 1999–2000, 573–582. 186 dsu, supra note 21, Article 3.7, emphasis added (fs). 187 Ibid., Article 4.5. 188 See also Schuchhardt, ‘Consultations’, supra note 21. 189 See European Communities – Anti-Dumping Duties on Imports of Cotton-Type Bed Linen from India, WT/DS141/R, adopted as modified by the Appellate Body report, 12 March 2001, paragraphs 6.32–6.35. 190 See Francis G. Snyder, ‘Anthropology, Dispute Processes and Law: A Critical Introduction’, British Journal of Law & Society [now Journal of Law & Society], 8, 2, Winter 1981, pp. 141–180, at 77–79; reprinted in Peter Sack and Jonathan Aleck (eds), Law and Anthropology (The International Library of Essays in Law & Legal Theory, Legal Cultures 3) (Dartmouth, Aldershot, 1992), pp. 65–104, at 77–79.
Based on these observations, it is possible to suggest several ways in the con- sultation phase of wto dispute settlement can be improved.191 The wto should introduce stronger transparency obligations on Members during the consultation phase. There should be a standard form for reporting, in skeleton form, the legal arguments of the parties and the bases for a mutually agree- ment settlement or other outcome. Parties should be required to inform the wto Secretariat of the outcome of consultations, regardless of the outcome, and teeth should be given to this obligation. Panels should be required to check the relevant documents to ensure respect for the formal requirements regard- ing consultations, not simply that consultations had taken place but also that the outcome has been reported, that the basic reporting format has been respected, and that so far as can be determined that the consultations were conducted in good faith. In other words, there should be more institutional supervision of consultations. This suggests two points for countries such as China which are developing a complete system of food safety standards. First, such countries should pay spe- cial attention to the consultation phase of wto dispute settlement. This means that they should aim to participate in relevant consultations as much as pos- sible, in the same way that China has participated very actively as a third party in general. The cases show that China frequently reserved its rights under Article 10 dsu to participate as a third party once a panel had been established, but that it rarely exercised its rights under Article xx gatt and Article 4:11 dsu to participate in consultations. While this pattern might be ascribed partly to the Chinese government’s policy during China wto ‘learning period’, one might conclude that this period has now ended and suggest that China should participate more actively throughout the wto dispute settlement procedures, including consultations. As we have seen, many disputes end at the consulta- tion phase, and certainly China and other bricsam countries could benefit by giving this phase more attention. Second, China and other bricsam countries are well-advised for the time being to settle international trade disputes by negotiation and consultation but if absolutely necessary to use a strategy of assertive legalism’192 or of ‘aggres- sive legalism’.193 ‘Assertive legalism’ means ‘primarily aim[ing] to protect…
191 192 193
191 For these points, I am indebted to Dr Elisa Baroncelli. 192 Pasha L. Hsieh, ‘China’s Development of International Economic Law and wto Legal Capacity Buidling’, Journal of International Economic Law, 13, 4, 2010, pp. 997–1036 at 999, 1025 (hereafter Hsieh, ‘Development’). 193 See Saadia M. Pekkanen, ‘Aggressive Legalism: The Rules of the wto and Japan’s Emerging Trade Strategy’, The World Economy, 24, 2001, pp. 707–737 (hereafter Pekkanen, ‘Legalism’).
the core idea behind aggressive legalism is the active use of the legal rules in the treaties and agreements overseen by the wto to stake out posi- tions, to advance and rebut claims, and to embroil all concerned in an intricate legal game…[i]t is meant to be measured, slow, and cautious, carefully trapping everything into the legitimate game of legal tactics.196
Both ‘assertive legalism’ and ‘aggressive legalism’ can easily be distinguished from legal passivism. They differ, however, in the extent to which they embody a conscious longer-term strategy, the extent to which they are mainly proactive or mainly reactive, and the extent to which law and politics are intermeshed. Differences in legal culture and legal capacity inform the extent to which a party wishes to use, or is able to use, ‘assertive legalism’ or ‘aggressive legal- ism’.197 China already engages in ‘assertive legalism’ to protect its legitimate interests. The main point here, however, is that China and the other bricsam countries should seek to develop a proactive, conscious strategy about the use of wto law and wto institutions as part of their normal trade policy.198 Such strategies can be especially useful for a complainant in cases where the complainant comes from a lower per capita income group than the respon- dent. They acquire special force in the cases examined here, which focus mainly on the consultation phase of wto dispute settlement. To take the example of ‘aggressive legalism’, such a strategy offers three advantages. First, it may greatly strengthen a complainant’s position at the stage of request for consultations. Second, it offers the possibility of a much stronger and more complex negotiating strategy justified in legal terms during the consultation phase. Third, if a party achieves no satisfaction during consultations, it can
194 195 196 197 198
194 Hsieh, ‘Development’, supra note 192, at 1025. 195 Pekkanen, ‘Legalism’, supra note 193, at 708. 196 Ibid., at 732. 197 See for example the critique by Joost Pauwelyn, ‘The Limits of Litigation: “Americanization” and Negotiation in the Settlement of wto Disputes’, Ohio State Journal on Dispute Settlement, 19, 2003–2004, 121–140. 198 See in particular Lu Yi, ‘To Be An Aggressive But Patient Learner – Analysis of China’s Participation in Defending Anti-Dumping Challenges within the wto Framework’, Peking University Transnational Law Review, 1, 2, 2013, 373–419.
may199 not be the same.
199 I am indebted to Dong Shi for these points.
What is clear, however, is that the globalization of local food safety stan- dards through a dispute settlement mechanism designed to settle trade dis- putes is not an appropriate way to determine which standards should regulate food safety in an increasingly integrated, yet inescapably diverse global food economy. The hidden jurisprudence of the wto is not a good way to regulate food safety today. We need a global food safety agency.200
200
200 For discussion of how this might be done, see Snyder, Legal Pluralism, supra Chapter 2 note 7, Chapter 10, ‘Social Solidarity Ethics and the wto: Toward Closer Relations between Sites of Governance’, pp. 381–423; Lin, Exploring’, supra Chapter 5 note 4, at 684–694; and William H. Sperber, ‘Global Food Protection: A New Organization is Needed’, in Wayne Ellefson, Lorna Zach and Darryl Sullivan (eds), Improving Import Food Safety (ift Press and Wiley-Blackwell, Oxford, 2013), pp. 293–302.
Introduction
The multiple sites of governance which were introduced in Chapter 5 connect with, interact with, condition, influence and sometimes conflict with many other sites of governance in the world concerning regulation of food safety; the latter include the regulatory regimes of the countries, customs territories and regional organisation that comprise the 160 wto Members. A privileged point of intersection of these complex sets of relations is the wto dispute settle- ment system. The process of dispute settlement in the wto, which is part of the structures of the wto site of governance, plays a very important role in shaping and determining the nature, extent and implications of these inter- connections concerning the regulation of food safety. It determines, in princi- ple, the significance of international standards in transnational and national food safety regulation and the extent to which international standards trump national food safety standards. This chapter analyses the ways in which wto dispute settlement institu- tions use international food safety standards.1 Its concern is not to rehearse the well-known principles of wto law regarding trade in food: these principles have been amply discussed elsewhere.2 Instead, it focuses on cross-references by wto dispute settlement institutions to international food standards institu- tions and especially to their norms, namely international food standards. The chapter aims to answer several questions. The first, more practical ques- tions are: What roles do international food standards play in wto case law? To what extent, why and how do wto panels and the Appellate Body refer, in cases about food safety, to norms created by other sites of governance, whether
1 The cut-off date for this chapter is 1 October 2014, though it has been possible to consider some later cases. 2 See, for example, Mahiou and Snyder, Food Safety, supra Chapter 2 note 17, Alberto Alemanno, Trade, supra Chapter 6 note 1.
© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004306929_008
3 Snyder, Legal Pluralism, supra Chapter 2 note 7, p. 42.
Legal Bases for Cross-References
Introduction wto law is public international law. Today food standards may be public, pri- vate or mixed. This chapter is concerned only with public or mixed food stan- dards; relations between the wto and private standards are not dealt with here.5 In addition, it deals only with those standards which are deployed in wto dispute settlement. The main purpose of the chapter is to explore rela- tions between the wto and public international standardization bodies and their standards in the field of food safety. Within the framework of public international law, there are two aspects of the legal basis for cross-references by wto dispute settlement institutions to international food standards bodies and the norms which they create. The first aspect concerns the general public international law framework on the inter- pretation of treaties. The second aspect refers to the legally binding texts of specific wto agreements relevant to food safety.
Vienna Convention on the Law of Treaties (vclt) First, wto dispute settlement institutions, namely panels and the Appellate Body (ab), interpret the wto Agreements as instruments of public interna- tional law. Other steps in the wto dispute settlement process, for example consultations or consideration by the wto Dispute Settlement Body, rest on the assumption that wto law is public international law. In interpreting the wto agreements, as is well-known, institutions and parties in the wto dispute settlement stem use the principles of interpretation of treaties in public
4 On wto cases which concern food safety but which do not involve international standards, see Chapter 6 of the book. 5 See Snyder, Legal Pluralism, supra Chapter 2 note 7, pp. 398–399.
1. A treaty shall be interpreted in good faith in accordance with the ordi- nary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall com- prise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connec- tion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the inter- pretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the par- ties so intended.7
Article 31 vclt thus provides for three specific legal bases for cross reference to organisations other than the wto. (1) Cross-reference may be based on the terms of the wto agreements themselves, for example the terms of the sps Agreement. (2) It may be based on other agreements to which the parties in a wto case are parties. (3) It may be based on agreements or practices which show or establish the agreement of the parties regarding interpretation of the wto agreement in question. In principle, therefore, the terms of the Vienna Convention control the extent of cross-reference by wto panels or the Appellate Body to other agreements or practices which might bring other, non- wto institutions and norms into the wto dispute settlement processes.
6 Vienna Convention on the Law of Treaties 1969, done at Vienna on 23 May 1969, entered into force on 27 January 1980, United Nations Treaty Series, vol. 1155, p. 331 [hereafter vclt]. 7 Ibid., Article 31.
Agreement on Sanitary and Phytosanitary Measures (sps Agreement) Second, and within the vclt framework, specific wto agreements provide for cross-references to other institutions or bodies and their norms concerning food safety. The Agreement on the Application of Sanitary and Phytosanitary Measures (sps Agreement) covers any measure applied:
To protect animal or plant health within the territory of the Member from risks arising from the entry, establishment or spread of pests, dis- eases, disease-carrying organisms or disease-causing organisms;
To protect human or animal life or health within the territory of the Member from risks arising from additives, contaminants, toxins or disease-causing organisms in foods, beverages or feedstuffs;
To protect human life or health within the territory of the Member from risks arising from diseases caused by animals, plants or products thereof, or from the entry, establishment or spread of pests; or
To prevent or limit other damage within the territory of the Member from the entry, establishment or spread of pests.8
The sps Agreement gives a long list of examples of relevant measures.9 The Preamble of the sps Agreement states the wto Members are
…
Desiring to further the use of harmonized sanitary and phytosanitary measures between Members on the basis of international standards, guidelines and recom- mendations developed by the relevant international organizations, including the Codex Alimentarius Commission, the International Office of Epizootics [now renamed as the World Animal Health Organization], and relevant international
8 sps Agreement, supra Chapter 4 note 4, Annex A,(1), first paragraph. 9 Ibid., Annex A(1) second paragraph, provides that: ‘Sanitary or phytosanitary measures include all relevant laws, decrees, regulations, requirements and procedures, including, inter alia, end product criteria; processes and production methods; testing, inspection, certification and approval procedures; quarantine treatments including relevant requirements associated with the transport of animals or plants, or with the materials necessary for their survival dur- ing transport; provisions on relevant statistical methods, sampling procedures and methods of risk assessment; and packaging and labelling requirements directly related to food safety’.
3. International standards, guidelines and recommendations
(a) for food safety, the standards, guidelines and recommendations estab- lished by the Codex Alimentarius Commission relating to food additives, veterinary drug and pesticide residues, contaminants, methods of analy- sis and sampling, and codes and guidelines of hygienic practice; (b) for animal health and zoonoses, the standards, guidelines and recom- mendations developed under the auspices of the International Office of Eipzootics; (c) for plant health, the international standards, guidelines and recom- mendations developed under the Secretariat of the International Plant Protection Convention in cooperation with regional organisations operating within the framework of the International Plant Protection Convention; and (d) for matters not covered by the above organisations, appropriate stan- dards, guidelines and recommendations promulgated by other relevant international organisations open for membership to all Members, as identified by the Committee [on Sanitary and Phytosanitary Measures].
10 Ibid., Preamble, 6th recital. 11 ec – Hormones, ab Report, supra Chapter 4 note 7, paragraphs 165, 177. 12 sps Agreement, supra Chapter 4 note 4, Article 3(1). 13 Ibid., Article 3(2). 14 Ibid., Article 3(3).
Furthermore, wto Members are to
play a full part, within the limits of their resources, in relevant interna- tional organizations and their subsidiary bodies, in particular the Codex Alimentarius Commission, the International Office of Epizooties, and the international and regional organizations operating within the frame- work of the International Plant Protection Convention, to promote within these organizations the development and periodic review of stan- dards, guidelines and recommendations with respect to all aspects of sanitary and phytosanitary measures.15
The sps Committee is required to
…maintain close contact with the relevant international organisations in the field of sanitary and phytosanitary protection, especially with the Codex Alimentarius Commission, the International Office of Epizootics, and the Secretariat of the International Plant Protection Convention, with the objective of securing the best available scientific and technical advice for the administration of this Agreement and in order to ensure that unnecessary duplication of effort is avoided.16
The sps Committee is also to ‘develop a procedure to monitor the process of international harmonization and coordinate efforts in this regard with the rel- evant international organizations’.17 For example, the Committee, working together with the relevant international organisations, is to establish a list of standards with a major trade impact, including an indication by Members of the international standards they apply or, if not applied, an indication of the reasons for not applying the international standard.18
Agreement on Technical Barriers to Trade (tbt Agreement) A second major wto Agreement that deals with standardization bodies and their norms is the Agreement on Technical Barriers to Trade.19 The tbt Agreement covers both legally binding measures and non-legally-binding
15 Ibid., Article 3(4). 16 Ibid., Article 12(3). On the establishment of the sps Committee, see ibid., Article 12(1). 17 Ibid., Article 3(5). On its procedures for monitoring international standards and their application by wto Members, see ibid., Article 12(4). 18 Ibid., Article 12(4). 19 tbt Agreement, supra Chapter 4 note 6.
20 Ibid., Annex 1. 21 Ibid., Annex 1(1) (emphasis added: fs). 22 Ibid., Annex 1(2) (emphasis added: fs). 23 Ibid., Preamble, 3rd recital. 24 Ibid., Preamble, 4th recital. 25 Ibid., Preamble, 6th recital. 26 Ibid., Preamble, 9th recital. 27 Ibid., Article 1.1. 28 Ibid., Article 1.2. 29 Ibid., Article 1.5. In ec – Hormones the panel concluded that the tbt Agreement did not apply to sanitary measures: ec – Hormones, Panel Report, supra Chapter 4 note 7, para. 8.32.
30 See tbt Agreement, supra Chapter 4 note 6, ‘Terms and Their Definitions for the Purpose of this Agreement’, Annex 1. 31 Ibid., Annex 1, paragraph 1. 32 Ibid., Annex 1 (1), (2) and (3), respectively. 33 Ibid., Annex 2(4). 34 Ibid., Article 2.4. 35 Ibid., Article 2.3. 36 Ibid., Article 2.6.
37 Ibid., Article 2.9 for central government technical regulations: Article 3.2 for local govern- ment and non-governmental technical regulations. 38 Ibid., Article 4.1. 39 Ibid., Article 4(1). 40 Ibid., Article 4(1). 41 Ibid., Article 4(1). 42 Ibid., Annex 3 (F). 43 See especially ibid., Annex 3 (C, F, G, H, J, K, L, N). 44 wto Members are required to ensure that their central government standardising bodies accept the Code of Conduct. With regard to local government standardising bodies and non-governmental standardising bodies within their territories, as well as regional stan- dardising bodies of which they or one or more bodies within their territories are mem- bers, wto Members are required ‘to take such reasonable measures as may be available to
Cases on Basic Concepts
Introduction This part of the chapter discusses the wto cases in which panel or Appellate Body referred to international standards bodies and their norms. A first group of cases, which is discussed in this section, introduced basic concepts such as risk assessment, alignment and the precautionary principle. Building on these cases, a second group, considered in the following section, dealt with more complex issues, such as whether adoption of international standards required international consensus, wto Members’ obligation to review and revise stan- dards, risk assessment procedures, relevance to domestic objectives, the sover- eignty problem and regionalization. For each case, third parties at the panel stage under Article 10 dsu and third participants at the appellate body stage under Article 17(4) dsu are noted in order to identify the wto Members which participated directly in the case and thus indicated their interest in the subject matter and outcome. Cases are considered in order of their numbering in the wto dispute settlement system in order to elucidate the chronological devel- opment of the approach, reasoning and conclusions of wto panels and the Appellate Body regarding international standards.
Australia – Salmon Australia – Salmon45 concerned an import restriction imposed by Australia on fresh, chilled and frozen salmon from Canada and the United States. Canada brought the case; the United States, the ec, India and Norway intervened as third parties at the panel stage and as third participants at the appellate stage, while the ec, Norway and the United States were third parties in the subse- quent Article 21.5 proceedings. The Australian Quarantine Protection Act 86A (QP86A) prohibited imports of dead salmon unless they had been ‘heat-treated’ to eliminate the risk of disease. Implementing legislation set down detailed requirements. Canada argued that the import restriction was inconsistent with
them’ to ensure acceptance and compliance. See ibid., Article 4.1. Bodies complying with the Code of Good Practice are to be acknowledged as complying with the tbt Agreement: ibid., Article 4.2. 45 Australia –Salmon, Panel Report, supra Chapter 5 note 198, adopted as modified 6 November 1998; Appellate Body Report, WT/DS18/AB/R adopted 6 November 1998. The same mea- sures were involved in Australia – Measures Affecting the Importation of Salmonids, DS21, Summary of the dispute to date available at http://www.wto.org/english/tratop_e/ dispu_e/cases_e/ds21_e.htm, last accessed on 11 September 2012. In that case the parties notified a mutually satisfactory solution to the wto on 27 October 2000.
Articles xi and xiii gatt and with Articles 2, 3 and 5 sps. Article 5.1 sps pro- vides that:
Members shall ensure that their sanitary or phytosanitary measures are based on an assessment, as appropriate to the circumstances, of the risks to human, animal or plant life or health, taking into account risk assess- ment techniques developed by the relevant international organisations.46
Directly following Annex A 3(b) sps, both Canada and Australia agreed that the International Aquatic Animal Health Code of the International Office of Epizootics (oie) (now the World Organisation for Animal Health) provided the ‘risk assessment techniques developed by the relevant international organ- isations’ within the meaning of Article 5.1 sps. The Code and the Diagnostic Manual for Aquatic Animal Diseases were adopted by the oie Fish Diseases Commission in 1995. The aim of the Code is ‘to facilitate international trade in aquatic animals and aquatic animal products’ by ‘providing detailed defini- tions of minimum health guarantees to be required of trading partners in order to avoid the risk of spreading aquatic animal diseases’. Competent authorities, that is national veterinary services or other authorities of a Member Country, use inspections, surveillance and standard laboratory methods for examina- tion and diagnosis of notifiable and other diseases.47 The Code also outlines the components of risk analysis, methodology and documentation of the results, including the observations that (a) risk analysis must deal with real life, (b) no single method can apply to all cases and (c) countries may find it neces- sary to design their own processes.48 Canada and Australia agreed that there were no oie guidelines for salmon on a product-by-product basis or for all of the 24 diseases which concerned Australia. The Panel concluded that the fact that this did not mean that an inter- national guideline applying to only one of the diseases cannot be relevant.49 However, the parties also agreed that the oie Code provided ‘the risk assess- ment techniques developed by the relevant international organisations’ for the purposes of Article 5.1 sps.50 The introduction to Section 1.4 of the Code states:
46 sps Agreement, supra Chapter 4 note 4, Article 5.1. 47 Australia – Salmon, Panel Report, supra Chapter 5 note 198, paragraphs 2.19–2.20; the quotation is from paragraph 220. The distinction between notifiable and other diseases is discussed, with criteria for each category, in paragraphs 2.21–2.23. 48 oie Aquatic Animal Health Code as analysed in ibid., paragraph 2.26. 49 Australia – Measures Affecting Importation of Salmon, Panel Report, supra Chapter 5 note 198, paragraph 8.46. 50 Ibid., paragraph 8.49.
The principal aim of import risk analysis is to provide importing coun- tries with an objective and defensible method of assessing the disease risks associated with the importation of acquatic animals and acquatic animal products…. The analysis should be transparent. This is necessary so that the exporting country may be provided with clear and docu- mented reasons for the imposition of import conditions or refusal to import. Transparency is also essential because data are often uncertain and the distinction between facts and the analyst’s value judgements may blur.51
The parties also referred in their arguments to the oie Code Guidelines for Risk Assessment.52 The Panel concluded that the oie Guidelines ‘may shed light’ on what is an appropriate risk assessment in the circumstances.53 It found that the Australian measure was incompatible with Article 5.1, 5.5 and 5.6 sps and by implication with Articles 2 and 3 sps; it did not examine the claim under Articles xi and xiii gatt. On appeal, the wto Appellate Body reversed the Panel’s finding on Article 5.1 sps. It considered that the Panel had examined the wrong measure (the ‘heat treatment requirement’ instead of the ‘import prohibition’).54 However, the Appellate Body completed the analysis by examining another measure (the ‘import prohibition’). In this case, the Appellate Body established a standard for completing the analysis, namely ‘to the extent possible on the basis of the factual findings of the Panel and/or of undisputed facts in the Panel record’.55 It referred to the oie Code definitions of ‘risk’ and ‘risk assessment’,56 and it confirmed that for purposes of this case the ‘relevant international organisa- tion’ was the oie.57 It found that this measure was not based on a risk assess- ment, hence infringed Article 5.1 sps. More precisely, it stated that, in this case,
51 oie Aquatic Animal Health Code, p. 29, quoted in Australia – Salmon, Panel Report, supra Chapter 5 note 198, paragraph 2.25. 52 See eg Australia – Measures Affecting Importation of Salmon, Panel Report, supra Chapter 5 note 198, paragraphs 8.61 (Canada), 8.66 (Australia). 53 Ibid., paragraph 8.71. See also paragraphs 8.80 (possibility of harm), 8.86 (risk reduction factors to be considered), 8.88 (risk assessment techniques). 54 Australia – Measures Affecting Importation of Salmon, Appellate Body Report, WT/DS18/ AB/R, adopted 6 November 1998, paragraphs 103 and 105 (hereafter Australia – Salmon, ab Report). 55 Ibid., paragraph 118. 56 Ibid., paragraph 123. 57 Ibid., paragraph 123, footnote 72.
4. Risk Assessment – The evaluation of the likelihood of entry, establish- ment or spread of a pest or disease within the territory of an importing Member according to the sanitary or phytosanitary measures which might be applied, and of the associated potential biological and eco- nomic consequences…58
Following this definition, the Appellate Body considered that a risk assessment within the meaning of Article 5.1. sps must:
identify the diseases whose entry, establishment or spread a Member wants to prevent within its territory, as well as the potential biological and economic consequences associated with the entry, establishment or spread of these diseases;
evaluate the likelihood of entry, establishment or spread of these diseases, as well as the associated potential biological and economic consequences; and
evaluate the likelihood of entry, establishment or spread of these diseases according to the sps measures which might be applied.59
The Appellate Body concluded that the Australian 1996 Final Report, which recommended that the importation of salmon that had not been heat-treated not be permitted at this time, met the first requirement but did not meet the second or the third requirements. Hence it concluded that the Australian mea- sure was not ‘based on’ a ‘risk assessment’ as required by Article 5.1 sps.60 The Appellate Body, though for different reasons, also upheld the Panel’s finding that the Australian measure was inconsistent with Article 5.5 sps. The wto Dispute Settlement Body (dsb) on 6 November 1998 adopted the Appellate Body report and the Panel report as modified by the Appellate Body report. By arbitration, Australia was given until 6 July 1999 to comply with the dsb recommendations. After that date, it notified the dsb of its additional risk analyses and changes of legislation. However, Canada considered that the new policies did not meet the requirements for compliance and requested that the
58 Ibid., paragraph 120. 59 Ibid., paragraph 121, emphasis added by Appellate Body. 60 Ibid., paragraphs 135–137.
61 Australia – Measures Affecting Importation of Salmon, Recourse by Canada to Article 21.5 of the dsu, Panel Report, WT/DS18/RW adopted 20 March 2000. 62 Ibid., paragraph 7.51. 63 Ibid., paragraph 7.50. See also the oie Aquatic Animal Health Code, Chapter 1.4, http:// www.oie.int/index.php?id=171&L=0&htmfile=chapitre_1.1.4.htm. 64 Australia – Measures Affecting Importation of Salmon, Recourse by Canada to Article 21.5 of the dsu, Panel Report, WT/DS18/RW, adopted 20 March 2000, paragraph 7.50, footnote 178. 65 Ibid., paragraphs 7.52–7.53.
ec – Hormones The most important food safety case in the wto dsm so far is the well-known ec – Hormones case.66 Chronologically it overlapped with Australia – Salmon,67 but it was more much controversial and well-known, not only because of the high-profile of the parties, but also because the legal questions at stake repre- sent typical regulatory, political and philosophical issues in food safety regula- tion world-wide. ec – Hormones concerned alignment in the sense of the relation of national standards to international standards, the nature of risk assessment and the international legal standing of the precautionary principle in food safety regulation. A long-running saga, it also illustrated the extent to which and how a wto Member may insist on retaining its own food safety standards. The use of growth-promoting hormones in the production of beef cattle had long been a bone of contention between the ec and the United States.68
66 ec – Hormones, Panel Report, supra Chapter 4 note 7; ec – Hormones, ab Report, supra Chapter 4 note 14, The panel was requested on 25 April 1996. 67 A panel was requested on 7 March 1997, its final report was circulated on 12 June 1998, after appeal the Appellate Body report was circulated on 20 October 1998 and adopted on 6 November 1998, the recourse by Canada to Article 21.5 gatt was requested on 28 July 1999, in which matter the final report was circulated on 18 February 2000 and adopted on 20 March 2000. See www.WorldTradeLaw.net Dispute Settlement Commentaries (dsc) on these cases. 68 ec – Hormones Panel Report, supra Chapter 4 note 14, paragraphs 2.26–2.35.
Then, during the mid-1980s, the ec enacted a series of directives which, inter alia, prohibited importation of meat and meat products that had been treated with any of six growth-promoting hormones.69 The United States retaliated by enacting Presidential Proclamation No. 5759 of 24 December 1987, which increased United States tariffs to up to 100% on ec beef, pork products, pre- served tomatoes, fruit juices, fermented alcoholic beverages with less than 7% alcohol content, pet food and intestines for artificial sausage casings; all prod- ucts were selected carefully to target specific Member States.70 The wto began to operate on 1 January 1995, and it provided a new set of rules and new dispute settlement institutions which Members could use to settle trade disputes. On 19 June 1996 the ec requested the establishment of a panel, claiming the retaliatory Presidential Proclamation was inconsistent with Articles i, ii and xxii gatt and Articles 3,22 and 23 dsu, and also that the application of Section 301 of the 1974 Trade Act was contrary to Article xvi:4 wto. On 15 July 1996 the United States withdrew the measure, and the ec dropped the complaint.71 Even before then, however, the United States on 26 January 1996 and Canada on 28 June 1996 had separately challenged the entire series of European Community directives before the wto. They argued that the ec measures violated Articles 2, 3 and 5 sps and Article 2 tbt. The usa argued that the measures also violated Articles i and iii gatt, while Canada invoked Articles iii and xi gatt and the ‘nullification or impairment’ of tariff concessions. Australia, New Zealand and Norway were third parties, as were
69 The directives were controversial even within the ec: see Case 68/86 United Kingdom of Great Britain and Northern Ireland v Council of the European Communities [1988] ecr 855; Case 376/86 Distrivet v Council of the European Communities [1988] ecr 209; Case 34/88 Coopérative agricole de l’Anjou et du Poitou and others v Council of the European Communities [1988] ecr 6265; Case 160/88 Fédération européenne de la santé animale and others v Council of the European Communities [1988] ecr 6399; Case 160/88R Fédération européenne de la santé animale and others v Council of the European Communities [1988] ecr 4121; Case C-331/88R R. v Secretary of State for Health ex parte Fedesa and others [1990] ecr I-4023. 70 General Agreement on Tariffs and Trade, ‘United States – Increase in the Rates of Duty on Certain Products of the European Economic Community (Presidential Proclamation No. 5759 of 24 December 1987), Communication from the European Communities’, L/6438, 28 November 1988, available at http://www.wto.org/gatt_docs/English/ SULPDF/91390088.pdf, last accessed 9 January 2015. See also Ronald Regan’s Presi dential Proclamations, Proclamation 5759, available at http://en.wikisource.org/wiki/ Proclamation_5759, last accessed 9 January 2015. 71 See the summary of this part of the dispute at http://www.wto.org/english/tratop_e/ dispu_e/cases_e/ds39_e.htm.
To harmonise sanitary and phytosanitary measures on as wide a basis as possible, Members shall base their sanitary and phytosanitary measures on international standards, guidelines or recommendations, where they exist, except as otherwise provided for in this Agreement, and in particu- lar in paragraph 3.74
Article 3.3 sps states that:
Members may introduce or maintain sanitary or phytosanitary measures which result in a higher level of sanitary protection that would be achieved by measures based on the relevant international standards, guidelines or recommendations, if there is a scientific justification, or as a consequence of the level of sanitary or phytosanitary protection a Member determines to be appropriate in accordance with the relevant provisions of paragraphs 1 through 8 of Article 5. Notwithstanding the above, all measures which result in a level of sanitary or phytosanitary protection different from that which would be achieved by measures based on international standards, guidelines or recommendations shall not be inconsistent with any other provision of this Agreement.75
72 See ec – Hormones, Panel Report, supra Chapter 4 note 14, paragraph 8.21. 73 See ibid., paragraph 8.29. 74 sps Agreement, supra Chapter 4 note 4, Article 3.1. 75 Ibid., Annex A, paragraph 5, defines ‘an appropriate level of sanitary or phytosanitary pro- tection’ as ‘the level of sanitary protection deemed appropriate by the Member establish- ing a sanitary or phytosanitary measure to protect human, animal or plant life or health
Article 5 completes the circle by providing for the assessment of risk:
Members shall ensure that their sanitary or phytosanitary measures are based on an assessment, as appropriate to the circumstances, of the risks to human, animal or plant life or health, taking into account risk assess- ment techniques developed by the relevant international organisations.76
The sps Agreement, as interpreted by the Appellate Body, thus gives wto Members a right to determine their own level of sanitary or phytosanitary pro- tection, on condition that such determination be based on a scientific justifica- tion or a risk assessment.77 In ec – Hormones the Appellate Body collapsed the textual distinction between scientific justification and risk assessment,78 and it ultimately concluded that the ec measure was not based on an adequate risk assessment, and therefore the import prohibition violated the sps Agreement.79 In its interpretation of the sps Agreement, the Panel identified two require- ments for the application of Article 3.1 sps: first, international standards, guidelines or recommendations ‘must exist’, and second, sanitary and phytos- anitary measures must be ‘based on’ these standards, guidelines or recommen- dations.80 In matters of food safety, as noted by the Panel,81 Annex A, paragraph 3(a), sps identified the main source of international food standards as being the Codex Alimentarius Commission. The Panel summarized the organiza- tion and standardization activities of the Codex.82 The Codex Alimentarius Commission and the International Agency for Research on Cancer (iarc) pro- vided a list of experts. The Codex Alimentarius Commission also answered questions raised by the Panel and sent an expert to an oral hearing with the panel experts.83 The Panel found that Codex standards existed for five of the six hormones whose importation was prohibited by the ec Directives; these standards concerned veterinary drug residues, and they applied exclusively to meat and meat products of bovine origin when the hormones are used to
within its territory’. A Note to this paragraph states that ‘Many Members otherwise refer to this concept as the “acceptable level of risk”’. 76 Ibid., Article 5.1. 77 ec – Hormones, ab Report, supra Chapter 4 note 14, paragraph 214. 78 Ibid., paragraph 181. 79 Ibid., − paragraph 208. 80 Ibid., −, paragraph 8.45 (us), paragraph 8.48 (Can). 81 Ibid.C – paragraph 8.56 (us), paragraph 8.59 (Can). 82 Ibid., paragraphs ii.12–ii.19. 83 Ibid., paragraph 8.8.
The scientific evaluation of known or potential adverse health effects resulting from human exposure to foodborne hazards. The process con- sists of the following steps: (i) hazard identification, (ii) hazard charac- terization, (iii) exposure assessment, and (iv) risk characterization. The definition includes quantitative risk assessment, which emphasizes reli- ance on numerical expressions of risk, and also qualitative expressions of risk, as well as an indication of the attendant uncertainties.90
84 Ibid., C, paragraphs ii.20-II.25, paragraph 8.70 (us), paragraph 8.73 (Can). 85 Ibid., C –, paragraph 8.70 (us), paragraph 8.73 (Can). 86 ec – Hormones, ab Report, supra Chapter 4 note 14, paragraph 8.57. 87 Ibid., − paragraphs 8.58–8.70. 88 Ibid., paragraphs 8.71–8.78, 8.89. 89 Ibid., C, paragraph 8.103. See also paragraph 8.110. 90 Quoted in ibid., paragraph 8.104. The Appellate Body noted (in footnote 302) that the November 1996 12th Session of the Codex Committee had accepted a revised definition of ‘risk assessment’ as ‘A scientifically based process consisting of the following steps:
From this and its analysis of the sps Agreement as applied to the ec measures, the Appellate Body noted the parties’ agreement that Article 5 sps risk assess- ment is a ‘scientific process aimed at establishing the scientific basis for the sanitary measure a Member intends to take’.91 Ultimately the Appellate Body upheld the Panel’s conclusion that the ec measure was not based on a risk assessment, and hence was in violation of Article 5.1 and therefore Article 3.3 sps.92 The crucial point emphasized by the Appellate Body was that risk assess- ment must be based on sound science. ec – Hormones became a saga. After the expiration of a reasonable period, the ec had not changed its law, so the United States and Canada considered that the ec had not brought its measures into compliance with wto law. They requested authorization to suspend concessions in retaliation. The ec requested arbitration under Article 22.6 dsu. The original Panel, acting as arbi- trators, determined on 12 July 1999 that the United States had suffered nullifica- tion or impairment of its rights to the extent of us$116.8 million per year93 and Canada to the extent of cdn $11.3 million per year.94 The dsb on 26 July 1999 authorized retaliation to this extent, and the United States and Canada on 29 July 1999 and 1 August 1999, respectively, introduced 100% ad valorem duties on specified products of certain eu Member States. On 22 September 2003, five years after the Appellate Body report, the European Communities amended its legislation, with the new Directive main- taining the previous import bans, with slight changes and on the basis of more detailed scientific evidence.95 The ec requested removal of the additional United States and Canadian duties. However the United States and Canada esteemed that the amended ec legislation did not constitute compliance with wto law. The ec then on 8 November 2004 brought complaints to the wto against the United States and Canada. Australia, Brazil, Canada (in the United States case), China, Chinese Taipei, India, Mexico, New Zealand, Norway and the United States (in the Canada case) were third parties at the panel stage. Australia, Brazil, China, Chinese Taipei, India, Mexico, New Zealand and
(i) hazard identification, (ii) hazard characterization; (iii) exposure assessment, and (iv) risk characterization’ (Codex Alimentarius Commission, CX/GP96/3. 91 Ibid., paragraph 8.107. 92 Ibid., − paragraphs 208–209. 93 European Communities – Measures Concerning Meat and Meat Products (Hormones), Original Complaint by Canada, Recourse to Arbitration by the European Communities under Article 22.6 of the dsu, Decision by the Arbitrators, WT/DS48/AR/B, 12 July 1999. 94 Ibid. 95 United States – Continued Suspension of Obligations in the ec – Hormones Dispute, Panel Reports, WT/DS320/R, adopted 14 November 2008, paragraphs 2.2–2.3.
Norway were third participants at the appellate stage. The ensuing Panel report issued on 31 March 2008 was appealed, and the Appellate Body on 16 October 2008 reversed the Panel’s findings, concluding that the new ec Directive was based on a risk assessment but also that it (the Appellate Body) was unable to complete the analysis regarding the consistency of the ec measure with Article 5.1 sps.96 This meant that the report in the original ec-Hormones dis- pute remained operative. The Appellate Body recommended that the dsb request the parties to initiate Article 21.5 dsu proceedings to resolve the deadlock. However, on 25 September 2009 the ec and the United States, and the ec and Canada, sepa- rately notified the dsb that they had reached a mutually agreed solution in the form of a Memorandum of Understanding agreed on 13 May 2009.97 An analo- gous mou between the ec and Canada was both agreed and notified to the dsb on 17 March 2011.98 Thus ended one of the longest running disputes in the history of the wto. ec – Hormones had a dramatic and fundamental influence on thinking about food safety regulation and relations between the different sites of gov- ernance dealing with food safety. First, it posed the role of international standards, alignment, sound science and risk assessment as core issues in international, regional and national thinking about food safety. National food safety measures could be adopted according to other criteria, such as the pre- cautionary principle, but they had to be justified by a scientifically based risk assessment. Second, the case revealed the extent to which a wto Member would and could go in defending its own food safety policy choices. The directive adopted by the eu to comply with its wto obligations enacted virtually the same text as the challenged directives; the eu Food Law99 was not adopted till four years after the case; and the dispute was settled by an mou more than ten years after the case began. Third, and most important from the institu- tional standpoint, the case established Codex as the leading international standards body for food safety regulation. All parties and institutions accepted the original Panel’s interpretation of the sps Agreement to the effect that the relevant international standards for food safety, if they existed, were the stan- dards of the Codex Alimentarius Commission. All took for granted the Panel’s
96 See Canada/United States – Continued Suspension of Obligations in the ec – Hormones Dispute, Panel Reports, WT/DS320/R, WT/DS321/RAppellate Body Reports, WT/DS320/ AB/R, WT/DS321/AB/R, adopted 14 November 2008. 97 For a brief summary, see http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds26_e.htm. 98 For a brief summary, see http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds48_e.htm. 99 eu General Food Law, supra Chapter 3 note 345.
Japan – Agricultural Products A subsequent case, Japan – Agricultural Products,101 dealt with Japan’s varietal testing requirement. The case referred to international standards for risk assessment laid down by bodies of the International Plant Protection Convention (ippc). It was brought by the United States against Japan; Brazil, the ec and Hungary were third parties at the panel stage, and Brazil and the ec were third participants at the appellate stage. Japan’s 1950 Plant Protection Law and various ministerial ordinances prohibited import of cer- tain plants. The 1950 Plant Protection Law Enforcement Regulations listed eight such products, mainly fruits and walnuts, from the United States, among other countries, which were prohibited as potential sources of codling moth. Exceptions were granted for specific varieties on a case-by-case basis. To obtain exemption, the exporting country was required to propose an alternative mea- sure that would achieve the same level of protection. In 1987 the Japanese Ministry of Agriculture, Fisheries and Forestry adopted two sets of guidelines for obtaining exemption, but these guidelines had not ‘generally been
100 See Sarah Poli, ‘The European Community and the Adoption of Food Safety Standards within the Codex Alimentarius Commission’, European Law Journal, 10, 5, September 2004, pp. 613–630. 101 Japan – Agricultural Products, Panel Report, supra Chapter 5 note 202. WT/DS76/R, Appellate Body Report, WT/DS76/AB/R, adopted 19 March 1999.
In cases where relevant scientific evidence is insufficient, a Member may provisionally adopt sanitary or phytosanitary measures on the basis of available pertinent information, including that from the relevant interna- tional organisations as well as from sanitary or phytosanitary measures applied by other Members. In such circumstances, Members shall seek to obtain the additional information necessary for a more objective assess- ment of risk and review the sanitary or phytosanitary measure accord- ingly within a reasonable period of time.107
However, in concluding that Japan did not meet the requirements of Article 5.7 sps, the Panel focused on ‘relevant scientific information’ and ‘on the basis of available pertinent information’.108 It did not mention ‘the relevant interna- tional organisations’.
102 Japan – Agricultural Products, Panel Report supra Chapter 5 note 202, paragraph 8.3. 103 Ibid., paragraphs 2.09–2.10. Given this exemption, the Panel was very careful to point out that nothing in its report affected the rights and obligations of parties to the Montreal Protocol: see paragraph 8.19. 104 See ibid., paragraphs 2.25 et seq. 105 Ibid., paragraphs 2.30–2.32. 106 Ibid., paragraph 2.33. 107 Ibid., paragraph 8.54. 108 Ibid., paragraph 8.54.
Nevertheless, the Appellate Body109 recalled that Japan had submitted that its approach ‘needs to be understood in the context of the precautionary prin- ciple’, a principle which is echoed by the practice of Member States and reflected in the Codex Alimentarius and the fao Guidelines for Pest Risk Analysis.110 It also noted the United States argument to the effect that Japan’s risk assessment was not carried out according to the fao Guidelines as well as Japan’s counterargument.111 It also noted Brazil’s argument that Japan should not compare its varietal testing requirement with Codex Alimentarius prac- tices on testing new food additives.112 All of these statements referred to inter- national standards bodies and their norms. However, such norms did not figure in the conclusions of the Appellate Body, which upheld the Panel’s findings regarding Article 5.7 sps and other matters, except in finding that Japan’s vari- etal testing requirement for certain fruit was not based on a risk assessment and therefore was incompatible with Article 5.1 sps. In other words, interna- tional standards may be invoked by the parties and even discussed by the panel, but nevertheless they may not be given any weight by the Appellate Body. The result is that the norms produced by international standards bodies are recognized as being part of the international normative repertoire for food safety, but the case does not contribute any interpretation or principles about their application.
Cases on More Complex Questions
ec – Sardines It may be cogently argued that wto panels and the Appellate Body began to deal with more complex legal and other issues regarding international stan- dards starting with ec – Sardines,113 a tbt case concerning imports. ec Council Regulation 2136/89 established common standards for preserved sardines to
109 Japan – Measures Affecting Agricultural Products, Appellate Body Report, WT/DS76/AB/R, adopted 19 March 1999, paragraph 10 (hereafter Japan – Agricultural Products, ab Report). 110 Ibid., paragraph 10, where the Appellate Body referred, respectively, to the General Principles for the Use of Food Additives, Codex Alimentarius, volume A1, 1995and to International Standards for Phytosanitary Measures Part I – Import Regulations, Guidelines for Pest Risk Analysis, Food and Agriculture Organisation Secretariat, 1996. 111 Ibid., paragraphs 43, 52. 112 Ibid., paragraph 57. 113 European Communities – Trade Description of Sardines, Panel Report, WT/DS231/R (here- after ec – Sardines, Panel Report), Appellate Body Report, WT/DS231/AB/R, adopted 23 October 2002 (hereafter ec – Sardines, ab Report).
114 Codex Stan 94, Article 6.1.1(ii); ec – Sardines, Panel Report, supra note 113, paragraphs 4.3. 115 ec – Sardines, Panel Report, supra note 113, paragraph 6.5.
116 Ibid., paragraph 6.6. 117 See ibid., paragraph 6.7 on the negotiations. 118 ec – Sardines, ab Report, supra note 113, paragraphs 222–225. 119 ec – Sardines, Panel Report, supra note 113, paragraph 6.8. 120 ec – Sardines, ab Report, supra note 113, paragraph 302. 121 ec – Sardines, Panel Report, supra note 113, paragraph 7.48. 122 ec – Sardines, ab Report, supra note 113 paragraph 282.
Fifth, the Appellate Body addressed the question of the relationship between domestic technical regulations and international standards. It stated in general terms that it agreed with the Panel,123 but it declined to specify pre- cisely what relationship was appropriate. It concluded merely that an interna- tional standard could not be regarded as ‘used as a basis’ for domestic legislation or another legally binding domestic norm if the domestic norm contradicted the international standard.124 This finding imposes limits on what can be regarded as alignment of domestic standards with regard to international stan- dards. Finally, the Appellate Body also concluded that wto Members have an ‘ongoing obligation…to reassess their technical standards in light of the adop- tion of international standards or the revision of existing international stan- dards’125 Though its enforcement in practice is likely to be sporadic and selective, this legal obligation to review and revise constitutes a potentially heavy burden for wto Members. Its main role lies in establishing an objective to be recalled in wto monitoring of national standards-setting through the Trade Policy Review Mechanism (tprm).126 This case was both factually simple and legally complex. Two key points emerge. First, skating over the unresolved disagreements about the implica- tions of the negotiations, the Appellate Body focused on the formal outcome, namely adoption by the Codex Alimentarius Commission. It could hardly have done otherwise; it has no mandate or capacity to look behind the formal out- comes or to analyse negotiations within an international standards body. Faced with the textual ambiguity of the tbt Agreement,127 it inevitably con- cluded that international standards are not necessarily based on consensus. A second significant aspect of the case was the Appellate Body’s view of align- ment. The Appellate Body gave a minimum definition, not proposing a positive definition but instead, a contrario, referring to a situation that does not qualify as alignment. As if to compensate for this definition, however, and to focus wto Members toward true alignment in the sense of an orientation toward international harmonization of national standards, the Appellate Body articu- lated for the first time an obligation on the part of wto Members to review
123 Ibid., paragraph 244; the Panel’s view is set forward in ec – Sardines, Panel Report, supra note 113, paragraph 7.110. 124 ec – Sardines, ab Report, supra note 113, paragraph 248. 125 Ibid., paragraph 199. 126 See Chapter 8 of this book. 127 tbt Agreement, supra Chapter 4 note 6, Annex I(2) Explanatory Note, which states that ‘Standards prepared by the international standardization community are based on consen- sus. This Agreement also covers documents [standards] that are not based on consensus.
Japan – Apples A further case, Japan – Apples,128 focused on several Japanese measures to pro- tect apples from fire blight bacterium originating in other countries, notably the United States. The case is significant because, for the first time, a wto panel stated that the analysis of risk assessment is not limited to procedures laid down by international standards, and that, from a normative standpoint, wto substantive rules have priority. The Japanese measures prohibited imports except on a case-by-case basis, according to specific criteria and, for the United States, subject to detailed conditions. The United States claimed that the mea- sures were inconsistent with Articles 2.2, 2.3, 5.1, 5.2, 5.5, 5.6, 5.7, 6.1, 6.2, 7 and Annex B sps and with Article xi gatt and Article 4.2 of the Agreement on Agriculture (AoA). Australia, Brazil, Chinese Taipei, the ec and New Zealand were third parties at the panel stage. The parties invoked international stan- dards of the ippc, which according to Annex A:3(c) sps is the international standards body for plant health.129 The Panel presented the ippa in exactly the same terms as in Japan – Agricultural Products and then discussed the two ippc standards that it considered to be relevant in this case.130 These standards were ispm [International Standard for Phytosanitary Measures] 2 on Guidelines for Pest Risk Analysis131 and ispm 11 on Pest Risk Analysis for Quarantine Pests.132 The Panel also noted that Japan referred in its submissions to ispm 10 on
128 Japan – Measures Affecting the Importation of Apples, Panel Report, WT/DS245/R (hereaf- ter Japan – Apples, Panel Report), Appellate Body Report, WT/DS245/AB/R (hereafter Japan – Apples, ab Report), adopted 10 December 2003. 129 Japan – Apples, Panel Report, supra note 128, paragraph 2.20. 130 Ibid., paragraphs 2.24–2.31. 131 See Secretariat of the International Plant Protection Convention (ippc), International Standards for Phytosanitary Measures, ispm 2 Framework for Pest Risk Analysis (2007) (fao, Rome, 2011) available at https://www.ippc.int/sites/default/files/documents//1323944382 _ISPM_02_2007_En_2011-12-01_Refor.pdf, last accessed 9 January 2015. 132 See Secretariat of the International Plant Protection Convention (ippc), International Standards for Phytosanitary Measures, ispm 11 Pest Risk Analysis for Quarantine Pests (2013), (fao, Rome, 2014), available at https://www.ippc.int/sites/default/files/documents /20140512/ispm_11_2013_en_2014-04-30_201405121523--494.65%20KB.pdf, last accessed 9 January 2015.
Requirements for the Establishment of Pest-Free Places of Production and Pest Free Production Sites.133 Following the conclusions of the Appellate Body in ec – Hormones,134 the Panel stated that it was legitimate to consider risks ‘arising from failure to observe the requirements of good veterinary practice’.135 It concluded that ‘errors of handling or illegal actions’ which allowed infected apples to be exported to Japan were risks that could be considered.136 On the merits, how- ever, the Panel concluded that the measure was disproportionate to the identi- fied risk.137 As to Japan’s attempt to justify of its measure under Article 5.7 sps, the Panel concluded that there was sufficient scientific information, so that the measure could not be justified under the Article 5.7 sps, which required that relevant scientific evidence be insufficient.138 The Panel then turned to the United States’ argument that the measures were not based on a risk assessment so were contrary to Article 5.1 sps. However, Article 5.1 sps provides only that:
Members shall ensure that their sanitary or phytosanitary measures are based on an assessment, as appropriate to the circumstances, of the risks to human, animal or plant life or health, taking into account risk assessment techniques developed by the relevant international organisations.139
Interpreting Article 5.1 sps literally, the Panel concluded that Article 5.1 sps required that such risk assessment techniques must be ‘taken into account’, rather than that national measure must be ‘based on’ or ‘in conformity with’ such techniques.140 As for the use of international standards, Annex A(3)(c) sps provides, and the parties in the case agreed, that the relevant international standards,
133 Japan – Apples, Panel Report, supra note 128, see paragraph 2.32. See Secretariat of the International Plant Protection Convention (ippc), International Standards for Phytosanitary Measures, ispm 10 Requirements for the Establishment of Pest-Free Places of Production and Pest-Free Production Sites (1999), available at https://www.ippc.int/ sites/default/files/docu-ments/1323945204_ISPM_10_1999_En_2011-11-29_Refor.pdf, last accessed 9 January 2015. 134 ec – Hormones, ab Report, supra Chapter 4 note 14. 135 Japan – Apples, Panel Report, supra note 128, paragraph 8.120. 136 Ibid., paragraph 8.161. 137 Ibid., paragraph 8.198. 138 Ibid., see paragraphs 8.213–8.222. 139 sps Agreement, supra Chapter 4 note 4, Article 5.1. 140 Japan – Apples, Panel Report, supra note 128, paragraph 8.241.
We note first that this expression does not impose that a risk assessment under Article 5.1 be ‘based on’ or ‘in conformity with’ such risk assess- ment techniques. This suggests that such techniques should be consid- ered relevant, but that a failure to respect each and every aspect of them would not necessarily, per se, signal that the risk assessment on which the measure is based is not in conformity with the requirements of Article 5.1. Nonetheless, reference to these risk assessment techniques can provide very useful guidance as to whether the risk assessment at issue constitutes a proper risk assessment within the meaning of Article 5.1. In particular, it can shed useful light, in this dispute, on the us argu- ment that Japan has failed to evaluate the likelihood of entry because it failed to consider all the steps in the pathway that would lead to apple fruit being a vector for the entry and transmission of the disease.142
In other words, international standards provide guidance, but the wto agree- ments, here the tbt Agreement, takes priority. In fact, the United State and Japan invoked different ippc standards with regard to risk assessment. The Panel concluded that it did not have to choose between them, finding instead that the consideration of whether there is ‘a risk assessment appropriate to the circumstances is not limited to a proce- dural review as to whether the risk assessment followed a certain form, in casu the ippc Standards.143 Instead it focused on a common element, namely whether Japan properly identified the pathways through which fire blight could be introduced and the likelihood of the risk being realized.144 For this purpose it concentrated entirely on the requirements of the sps Agreement, not on ippc standards. The Panel found, inter alia, that Japan’s 1999 Pest Risk
141 Ibid., paragraphs 7.14–7.15. 142 Ibid., paragraph 8.241. 143 Ibid., paragraph 8.239. 144 Ibid., paragraphs 8.242–8.244.
Analysis did not constitute a ‘risk assessment’ within the meaning of Article 5.1 sps: the analysis was not sufficiently specific, it did not evaluate properly the likelihood of entry, establishment or spread of the specific disease and it did not consider other risk-mitigating measures.145 Similarly, the Panel rejected Japan’s argument based on ippc requirements concerning buffer zones.146 On appeal, the Appellate Body upheld the Panel’s findings. It referred expressly to international standards in general, though not specifically at all to the ippc. It merely reiterated the Panel’s general statements to the effect that ‘the relevant international standards…expressly contemplate examining risk in relation to particular pathways’ and that ‘those standards call for that spe- cific examination even when the risk analysis is initiated on the basis of the particular pest or disease at issue’.147 Australia, Brazil, Chinese Taipei, the ec and New Zealand were third participants at the appellate stage. After the dsb adoption on 10 December 2003 of the Appellate Body report and of the Panel report as modified by the Appellate Body report, the parties agreed on a reasonable time for implementation. Before 30 June 2004, the end of the reasonable time, Japan modified its restrictive measures, reducing the number of annual inspections, reducing the buffer zone around blight-free orchards and eliminating the requirement that packing crates be disinfected. However, the United States claimed that the revised measures did not comply with the dsb rulings and with Articles 2.2, 5.1 and 5.6 sps and with Article xi gatt and Article 4.2 AoA. On 19 July 2004 it sought recourse to arbitration by the original panel under Article 21.5 dsu.148 Australia, Brazil, China, Chinese Taipei, the ec and New Zealand were third parties. The Article 21.5 dsu Panel concluded that the compliance measure was not compatible with wto law. It referred to the International Plant Protection Convention. It repeated the Panel’s statement that the analysis of whether there is ‘a risk assessment appropriate to the circumstances is not limited to a procedural review as to whether the risk assessment followed a certain form, in casu the ippc Standards’.149 First, one must examine the ‘substantive validity’ of the risk assessment, in other words whether the scientific evidence supports
145 Ibid., paragraphs 8.266–8.290, 189–197. 146 Ibid., paragraph 8.191 et seq. 147 Japan – Apples, ab Report, supra note 128, paragraph 205. 148 Japan – Measures Affecting the Importation of Apples, Recourse to Article 21.5 of the dsu by the United States, WT/DS245/RW, adopted 20 July 2005 (hereafter Japan – Apples,Article 21.5). 149 Ibid., paragraph 8.129.
ec – Biotech Products The next sps case to come to the wto dsm was considerably more complex and more controversial, and equally productive of ideas about the role of international standardization bodies and their norms with regard to domestic food safety regu- lation. In ec – Biotech Products,152 Argentina, Canada and the United States requested panels on 7 August 2003. A total of 18 Members, including China and Chinese Taipei, intervened as third parties, counting as distinct interventions Argentina in the United States and Canada complaints and the United States in the Argentina and Canada complaints.153 The case concerned the ec regime for approval of genetically modified (gm) plants and products and measures adopted by specific ec Member States prohibiting or restricting the marketing of such
150 Though it did not follow the approach to risk assessment based strictly on the three fac- tors laid down in the sps Agreement, supra Chapter 4 note 4, Annex A, paragraph 4, and emphasized by the Appellate Body in Australia – Salmon, supra Chapter 5 note 54, paragraph 121 and in the original Panel Report in Japan – Apples, Panel Report, supra note 128, para- graphs 8.235–8.292, the Panel did not identify the precise textual basis for its conclusions: WorldTradeLaw.net Dispute Settlement Commentary (dsc), Panel Report, Japan – Measures Affecting the Importation of Apples, Recourse to Article 21.5 of the dsu by the United States (WT/DS245/RW, p. 13, available at http://www.worldtradelaw.net/reports/ wtopanels/japan-apples(panel)(21.5).pdf.download#page=1. 151 Japan – Apples, Article 21.5, supra note 148 paragraph 8.130. 152 European Communities – Measures Affecting the Approval and Marketing of Biotech Products, Panel Report, WT/DS291, 292, 293/R, adopted 21 November 2006 (hereafter ec – Biotech Products, Panel Report). 153 The 18 third parties were Argentina (in the us and Canada complaints), Australia, Brazil, Canada (in the Argentina and United States complaints), Chile, China, Chinese Taipei, Colombia, El Salvador, Honduras, Mexico, New Zealand, Norway, Paraguay, Peru, Thailand, Uruguay and the United States (in the Argentina and Canada complaints).
154 ec – Biotech Products,Panel Report, supra note 152, paragraph 2.3, footnote 10 and para- graph 7.106. 155 Ibid., paragraph 2.3 and footnote 9. 156 Ibid., paragraph 2.3 and footnote 11. 157 Ibid., paragraph 2.4. 158 Ibid., paragraphs 1.1–1.9. 159 Ibid., paragraph 7.16. 160 Ibid., paragraph 7.19.
based on our interpretation of Article 31(3)(c), we do not consider that in interpreting the relevant wto agreements we are required to take into account other rules of international law which are not applicable to one of the Parties to this dispute. But even independently of our own inter- pretation, we think Article 31(3)(c) cannot reasonably be interpreted as the European Communities suggests. Indeed, it is not apparent why a sovereign State would agree to a mandatory rule of treaty interpretation which could have as a consequence that the interpretation of a treaty to which that State is a party is affected by other rules of international law which that State has decided not to accept.167
On this basis, the Panel considered that the Convention of Biological Diversity and the Biosafety Protocol were not ‘relevant rules of international law’ in the
161 Ibid., paragraph 7.31. 162 Ibid., paragraph 7.31. 163 Ibid., paragraph 7.31. 164 Ibid., paragraph 7.49. 165 Ibid., paragraph 7.52. 166 See ibid., paragraphs 7.53–7.63. 167 Ibid., paragraph 7.71.
The ordinary meaning of treaty terms is often determined on the basis of dictionaries. We think that, in addition to dictionaries, other relevant rules of international law may in some cases aid a treaty interpreter in establishing, or confirming, the ordinary meaning of treaty terms in the specific context in which they are used. Such rules would not be consid- ered because they are legal rules, but rather because they may provide evidence of the ordinary meaning of terms in the same way that diction- aries do. They would be considered for their informative character. It fol- lows that when a treaty interpreter does not consider another rule of international law to be informative, he or she need not rely on it.169
Despite its distinction between legally binding rules and evidence of ordinary meaning, the Panel rejected the ec argument that it was necessary to take into account the Convention on Biological Diversity or the Biosafety Convention. With regard to material received from various international organisations, it stated simply, without giving detailed reasons, that ‘[t]he materials were have obtained in this way have been taken into account by us, as appropriate’.170 Similarly, with regard to the precautionary principle, the Panel noted that ‘there has, to date, been no authoritative decision by an international court or tribunal which recognizes the precautionary principle as a principle of general or customary international law.171 Referring to the Appellate Body report in ec – Hormones,172 it concluded that, given disagreements among scholars and courts, it did not need to take a position on the status of this principle in gen- eral or customary public international law.173 With regard to international standards bodies, however, the United States, Argentina and the ec all identified the ippc as context for interpreting the term ‘pest’ in Annex A(1)(a), A(1)(c) and A(1)(d) of the sps Agreement.174 The
168 Ibid., paragraphs 7.74 [Convention of Biological Diversity] -7.75 [Biosafety Protocol]. 169 Ibid., paragraph 7.92 (footnotes omitted). 170 Ibid., paragraph 7.96. 171 Ibid., paragraph 7.88. 172 Ibid., paragraphs 7.87–7.89. 173 Ibid., paragraph 7.89. 174 Ibid., paragraphs 7.233, 7235–7.236.
Panel found that the ippc was useful but not dispositive; it did not cover ‘pests’ which were not ‘injurious’ to other plants but nonetheless caused ‘other harm’ and were ‘troublesome’ or ‘annoying’ to other plants.175 With regard to undesir- able gene flow or transfer from a gm plant to other plants, the United States argued fao International Standard for Phytosanitary Measures No. 11 sup- ported its view that undesired cross-breeding would ‘render a plant a “pest”’,176 and hence would fall within Annex 1(A) sps; the ec disagreed.177 The Panel considered that it could refer, as it did, to the fao Standard if the Standard was helpful in interpreting the sps Agreement but that it was not required to do so.178 The Panel also noted, but did not discuss, the United States reference to this Standard in its argument about the development of pesticide resistance in target or non-target organisms.179 However, the Panel referred directly to the fao Standard in its discussion of the potential effects of gm plants on non- target organisms.180 Similarly both the ec and the Panel referred to international standards or definitions as the source of their definition of ‘disease’ in Annex A(1)(a) sps; the ec referred to an oie definition and the Panel to a wto definition.181 With regard to the term ‘additives’ in Annex A(1)(b) sps, the United States, Canada and the ec referred to a Codex definition, agreeing on its relevance but draw- ing different conclusions as to its applicability to gm products.182 The Panel considered the Codex definition not to be dispositive, in particular because, unlike Article 3(1) sps and Annex A(3) sps, Annex A(1) sps does not refer at all to ‘international standards, guidelines and recommendations’.183 Similarly, concerning the term ‘contaminant’, the Panel considered the Codex definition to be helpful but not dispositive.184 Concerning the term ‘toxin’ in Annex A, sps, the Panel itself used the Codex definition.185 One of the Panel’s experts
175 Ibid., paragraph 7.241. 176 Ibid., paragraph 7.249, referred to International Standard for Phytosanitary Measure No. 11, Pest Risk Analysis for Quarantine Pests Including Analysis of Environmental Risks, fao, Rome, 2004 (adopted April 2004), Annex 1. 177 Ibid., paragraph 7.252. 178 Ibid., paragraphs 7.253–7.255, especially footnote 406. 179 Ibid., paragraphs 7.262–7.263. 180 Ibid., pparagraph 7.269. 181 Ibid., paragraphs 7.276–7.277. 182 Ibid., paragraphs 7.293–7.295. 183 Ibid., paragraph 7.300. 184 Ibid., paragraphs 7.305–7.313. 185 Ibid., paragraph 7.321.
Australia – Apples Australia – Apples191 concerned measures on the importation of apples from New Zealand. Australia banned importation of apples from New Zealand start- ing in 1921 after an outbreak of fire blight in 1919. New Zealand requested mar- ket access in 1999, and Australia initiated the Import Risk Analysis (ira). The
186 Ibid., paragraph 7.335 and footnote 484. 187 Ibid., paragraph 7.339 and footnote 488. 188 Ibid., paragraph 7.366 and footnote 501, referring to International Standard for Phytosanitary Measures No. 11, Pest Risk Analysis for Quarantine Pests, Including Analysis of Environmental Risks (fao, Rome, 2004adopted April 2004). 189 Ibid., paragraph 7.1487 and footnote 1282. 190 Ibid., paragraph 7.3251. 191 Australia – Measures Affecting the Importation of Apples from New Zealand, Panel Report, WT/DS367/R (hereafter Australia – Apples, Panel Report), Appellate Body Report, WT/ DS367/AB/R (hereafter Australia – Apples, ab Report), adopted 17 December 2010.
192 Australia – Apples, Panel Report, supra note 191, paragraph 2.37. See Secretariat of the International Plant Protection Convention (ippc), International Standards for Phytosanitary Measures, ispm 11 Pest Risk Analysis for Quarantine Pests (2013), (fao, Rome, 2014 available at https://www.ippc.int/sites/default/files/documents/20140512/ispm_11-_2013_en_2014-04 -30_201405121523--494.65%20KB.pdf, last accessed 9 January 2015. 193 Australia – Apples Panel Report, supra note 191, paragraph 2.69. 194 Secretariat of the International Plant Protection Convention (ippc), International Standards for Phytosanitary Measures, ispm 2 Guidelines for Pest Risk Analysis (1995) (fao, Rome, 2006) available at https://www.ippc.-int/largefiles/adopted_ISPMs _previousversions/en/ISPM_02_1995_En_2006-05-03.pdf, last accessed 10 January 2015. 195 Australia – Apples, Panel Report, supra note 191, paragraphs 2.70–2.76. 196 Secretariat of the International Plant Protection Convention (ippc), International Standards for Phytosanitary Measures, ispm 4 Requirements for the Establishment of Pest Free Areas (1995) (fao, Rome 2011), available at https://www.ippc.int/sites/default/ files/documents//1367570788_ISPM_04_1995_En_2011-12-01_Refor.pdf, last accessed 10 January 2015.
197 Secretariat of the International Plant Protection Convention (ippc), International Standards for Phytosanitary Measures, ispm 10 Requirements for the Establishment of Pest Free Places of Production and Pest Free Production Sites (1999) (fao, Rome 2011) available at https://www.ippc.int/sites/default/files/documents//1323945204_ISPM_10_1999_En_2011 -11-29_Refor.pdf, last accessed 10 January 2015. 198 Secretariat of the International Plant Protection Convention (ippc), International Standards for Phytosanitary Measures, ISPM 22 Requirements for the Establishment of Areas of Low Pest Prevalence (2005) (fao, Rome 2011) available at https://www.ippc.int/ sites/default/files/documents//1323946136_ISPM_22_2005_En_2011-11-29_Refor.pdf, last accessed 10 January 2015. 199 Australia – Apples,Panel Report, supra note 191, paragraphs 2.77–2.87. 200 Ibid., paragraphs 2.116. 201 Ibid., paragraphs 7.136. 202 Ibid., paragraphs 2.194–2.198. 203 Ibid., paragraphs 7.1055, 7.1059.
ispm No. 11 explains that risk management measures should be adopted only if the risk exceeds the alop: ‘Overall risk is determined by the exam- ination of the outputs of the assessments of the probability of introduction and the economic impact. If the risk is found to be unacceptable, then the first step in risk management is to identify possible phytosanitary measures that will reduce the risk to, or below an acceptable level. Measures are not justified if the risk is already acceptable or must be accepted because it is not manageable (as may be the case with natural spread). … Appropriate measures should be chosen based on their effec- tiveness in reducing the probability of introduction of the pest’.204
It was on this basis that the Panel determined whether New Zealand had dem- onstrated that Australia’s calculation of the risk was exaggerated and whether New Zealand had raised a presumption that alterative measures would reduce the risk below Australia’s alop.205 In reaching this conclusion, the Panel asked ippc for the names of experts, and the ippr provided a list of experts, but none was an expert on aclm. The difficulty in finding experts on this specific matter delayed the Panel proceed- ings. Following the suggestion by Australia, the Panel also contacted the Council for International Congresses of Dipterology (cicd).206 The Panel consulted indi- vidual experts about each risk. It is worth noting, however, that the Panel’s defer- ence with regard to experts was less than with regard to definitions or other points in written texts provided by international organisations. As it explained: ‘…in the context of Article 5.5, the panel in Australia – Salmon explained that its legal analysis is different from the scientific assessment and certainty that scien- tific experts consulted by panels might prefer. The Panel considers that this also applies in the context of Article 5.6 of the sps Agreement, in particular when assessing the second condition of the Article 5.6 test. If the Panel tried to achieve the same scientific certainty as scientific experts, it would slip into conducting a de novo review. If the Panel were to recoil from carrying out its legal analysis merely because it could not achieve the same scientific certainty, it would not be acting in conformity with Article 11 of the dsu. As noted above, what the Panel has to look at, in the context of the second prong of Article 5.6 of the sps
204 Ibid., paragraph 7.1141. 205 Ibid., paragraphs 7.1143–7.1144. 206 Ibid., paragraphs 7.14–7.20.
Agreement, is whether New Zealand has raised a presumption, not successfully rebutted by Australia, that the alternative measures would achieve Australia’s alop. Obviously, the Panel can conclude this only if New Zealand has advanced sufficient and convincing arguments and evidence to that effect’.207 In other words, the wto panel, not the scientific expert, decides. Panels have some leeway concerning the use of international standards and expert opinions, but they make use of this leeway in different ways. International standards originate from international organisations, based on treaties or other agreements to which the parties have subscribed, at least in the minimal sense of their being wto Members and having accepted as legally binding the wto agreements, which themselves cross-refer to standards of spe- cific international organisations as the authoritative source of standards regard- ing a particular subject matter. On this basis, panels use international standards as authoritative definition of terms, as justification for their findings about evi- dence, or for other purposes. Even in this instance, as we have already seen, panels have some discretion, for example concerning the extent to which they refer to or analyse international standards, the interpretation they give to them and the extent to which they use them as a justification for their conclusions. In contrast, opinions by experts agreed to or accepted by the parties originate from individual scientists with specific expertise. The source of the authority that such opinions represent is not always recognized by the parties, and the panels have virtually complete discretion in the extent to which and the purpose for which they consult outside experts. Expert opinions are part of the evidence considered by the panels. They are part of the facts, whereas international stan- dards are norms: standards are part of the normative structure deployed by panels in analyzing and resolving disputes. In this case, the Panel concluded that Australia’s requirements in relation to all pests at issue were inconsistent with Articles 5.1 and 5.2 sps and by implication Article 2.2 sps. It also found that measures regarding three pests were incompatible with Article 5.6 sps. On appeal, Australia argued that the Article 5.1 sps reference to interna- tional organisations reinforced the flexibility of wto Members in adapting risk assessment methodologies to specific situations.208 It referred to ‘the stan- dards of the scientific community’ as determining the range of legitimate expert judgments.209 It also argued that international standards, in casu ispm No. 2 and ispm No. 11, were the authoritative source that determined the extent to which a party had to provide a detailed explanation of how expert
207 Ibid., paragraph 7.1193, original footnotes omitted. 208 Australia – Apples, ab Report, supra note 191, paragraph 20. 209 Ibid., paragraph 21.
…while Article 5.1 directs a Member conducting a pest risk assessment to take into account internationally developed risk assessment techniques, this does not mean that a risk assessment must be based on or conform to such techniques. Nor does it imply that compliance with such tech- niques alone suffices to demonstrate compliance with a Member’s obli- gations under the sps Agreement. However, reference by the risk assessor to such techniques is useful both to the risk assessor, should a dispute arise in relation to the risk assessment, and to the panel that is called upon to review the consistency of that risk assessment with the provi- sions of the sps Agreement.214
However, the Appellate Body referred to the ippc in support of its view that the entire risk analysis should be sufficiently documented.215 In its view, the ippc required ‘that the entire pest risk analysis process should be sufficiently documented’.216 On this basis, the Appellate Body upheld the Panel’s finding that Australia had not provided sufficient documents to demonstrate how its decisions were made and to show ‘an objective and rational link’ between its conclusions and the scientific evidence.217
210 Ibid., paragraph 24. 211 Ibid., paragraph 223. 212 Ibid., paragraph 220. 213 Ibid., paragraph 141, footnote 195. 214 Ibid., paragraph 246. 215 Ibid., paragraph 245. 216 Ibid., paragraph 247. 217 Ibid., paragraph 248.
It is noteworthy that the Appellate Body did not accept the Panel’s view of its role under Article 5.6 sps.218 It also criticized the Panel for relying too much on scientific experts, in particular by asking them whether restricting imports to certain types of apples would achieve Australia’s appropriate level of protec- tion. It stated that the role of experts was to assist the Panel in assessing the level of risk associated with specific measures, but that whether the level of risk provided by specific measures achieves a Member’s ALOP ‘is a question of legal characterisation’, and that ‘[a]nswering this question is not a task that can be delegated to scientific experts’.219 Following on from this point, it has been suggested that the Appellate Body’s approach is based on a distinction between the different approaches to domes- tic measures provided in the texts of Article 5.1 sps (‘assessment…of the risks…, taking into account risk assessment techniques developed by the relevant international organisations’) and Article 5.6 sps (‘not more trade restrictive than necessary’).220 Such a conclusion would undoubtedly apply to the divi- sion of labour between a wto panel and other sites of governance. A textual analysis may well support such a conclusion. However, it would be unfortunate if domestic authorities alone were able to determine the extent to which ‘risk assessment techniques developed by the relevant international organisations’ were taken into account, without any strong supervision by wto panels or the Appellate Body. The post-wto dsm phase of Australia – Apples also demonstrates, how- ever, that while central governments adopt measures necessary to comply with wto rulings, it is not always easy for them to control national or local politics. In this case, New Zealand again asked whether Australia actually was complying with the ab recommendation as adopted by the dsb. As evidence, it pointed to a proposal to introduce a Private Member’s Bill in the Australian Senate and also remarks by some State governments, both oriented toward preventing the import of New Zealand apples. The Australian Government retorted that it opposed the proposed bill and was working with several States to ensure consistency with Australia’s wto obligations.221 Domestic
218 Ibid., paragraphs 354–359. 219 Ibid., paragraph 384. 220 WorldTradeLaw.net Dispute Settlement Commentary (dsc), Appellate Body Report, Australia – Measures Affecting the Importation of Apples from New Zealand, WT/DS367/ AB/R, pp. 23–24. 221 Australia – Measures Affecting the Importation of Apples from New Zealand,DS367, Summary of the dispute to date available at http://www.wto.org/english/tratop_e/ dispu_e/cases_e/ds367_e.htm, last accessed 11 September 2011.
United States – Country of Origin Labelling (cool) United States – cool223 involved complaints by Canada and Mexico about country of origin labeling on numerous agricultural products. These require- ments were contained in the United States Marketing Act of 1946, introduced through the 2002 Farm Bill and subsequently amended by the 2008 Farm Bill; they were implemented by regulations promulgated by the us Secretary of Agriculture through the Agriculture Marketing Service (ams).224 Retailers were required to provide country of origin labelling for beef, pork, lamb, per- ishable agricultural commodities, peanuts, wild and farmed fish and shellfish, and certain criteria had to be met for the product to be considered to be of United States origin.225 The main burden fell on retailers and suppliers. The complainants considered that the measures were contrary to Articles 2.2, 2.2 and 2.4 tbt, the last because the measure was not based on the codex-stan 1–1985, the Codex Alimentarius Commission General Standard for the Labelling of Prepackaged Foods,226 which was the relevant international standard.227 Codex stan 1–1985 required declaration of the country of origin if ‘its omission would mislead of deceive the consumer’; it also stated that if food underwent processing in a second country which changed the nature of the food, the sec- ond country should be considered the country of origin.228 Canada also argued that the measures were contrary to Articles iii:4, ix:2, ix:4 and x:3(a) gatt.229
222 Compare China – Countervailing and Anti-dumping Duties on Grain-Rolled Flat Electrical Steel from the United States (goes), WT/DS414/12, Arbitration under Article 21.3(c) of the Understanding on Rules and Procedures Governing the Settlement of DisputesAward of the Arbitrator: Claus-Dieter Ehlermann, arb-2013-1/27, available at http://www.worldtradelaw .net/reports/213(c)awards/china-goes(213(c)).pdf, last accessed 5 February 2014. 223 United States – Certain Country of Origin Labelling (cool) Requirements, Panel Report, WT/DS384, 386/R, final report circulated 18 November 2011 (hereafter us – cool, Panel Report). 224 Ibid., paragraph 7.93. 225 Ibid., paragraphs 7.78. 226 Ibid., 227 Codex General Standard for the Labelling of Prepackaged Foods, Codex stan 1–1985 (Rev. 1–1991) available at http://www.fao.org/docrep/005/Y2770E/y2770e02.htm, last accessed 12 January 2015. 228 Ibid., Article 4.5, Country of Origin. 229 United States – Certain Country of Origin Labelling (cool) Requirements, Request for the Establishment of a Panel by Canada, WT/DS384/89 October 2009.
Mexico advanced similar arguments, giving more emphasis to the treatment of Mexico as a developing country.230 The third parties at the panel stage were Argentina, Australia, Brazil, Canada, China, Chinese Taipei, Colombia, eu, Guatemala, India, Japan, Korea, Mexico, New Zealand and Peru. The United States stated that it did not use codex-stan I-1985 as a basis for its measure. It argued, however, that Mexico failed to meet the burden of proof imposed by Article 2.4 tbt, which provides:
Where relevant technical regulations are required and relevant interna- tional standards exist or their completion is imminent, Members shall use them, or the relevant parts of them, as a basis for their technical regu- lations except where such international standards or relevant parts would be an ineffective or inappropriate means for the fulfillment of the legitimate objectives pursued, for instance because of fundamental cli- matic or geographical factors or fundamental technological problems.
In ec – Sardines the Appellate Body had found that the complaining party bore the burden of proving that the international standard was appropriate and effective to fulfill the respondent’s legitimate objectives.231 Here the Panel assumed that codex-stan i-1985 was a ‘relevant international standard’ and then analysed the issues in two stages. First, was it effective? Second, was it appropriate? The objective of the United States measure was to convey specific knowledge to consumers, namely ‘the countries in which an animal is born, raised and slaughtered’.232 However, this was not the function of the standard, which was ‘based on the principle of ‘substantial transformation’, in other words it confers origin exclusively to the country where the processing of food took place’.233 Consequently the Panel concluded that codex-stan i-1985 was neither effective nor appropriate to convey the desired information to con- sumers.234 It found that Mexico had not established that the United States measure violated Article 2.4 tbt,235 though the measure infringed the national treatment principle set out in Article 2.1 tbt.236
230 United States – Certain Country of Origin Labelling (cool) Requirements, Request for the Establishment of a Panel by Mexico, WT/DS386/813 October 2009. 231 ec – Sardines, ab Report, supra note 113, paragraph 282. 232 us – cool, Panel Report, supra note 191, paragraph 7.734. 233 Ibid., paragraph 7.734. 234 Ibid., paragraphs 7.733–7.734. 235 Ibid., paragraphs 7.735–7.736. 236 United States – Certain Country of Origin Labelling (cool) Requirements, Request for the Establishment of a Panel by Canada, WT/DS384/89 October 2009, paragraph 8.4(a);
On appeal, the Appellate Body upheld the Panel’s findings, except that it concluded, reversing the Panel, that the measure provided sufficient informa- tion on origin to the consumer and therefore was consistent with Article 2.2 tbt.237 It simply noted the Panel’s conclusion that the Codex standard, which was based on the last substantial transformation test in determining origin, was ‘ineffective and inappropriate for the fulfilment of the specific objective as defined by the United States’.238 This conclusion was not appealed.239 On other points, the Appellate Body did not complete the Panel’s analysis. Following adoption of the Appellate Body report, the United States amended the cool statute and administrative measures. Canada and Mexico deemed that the amendments did not conform to wto law and sought recourse under Article 2.15 dsu. The Article 21.5 Panel in its report did not refer to the Codex standard.240
United States – Clove Cigarettes Tobacco is not usually considered to be food,241 but a recent case on tobacco nonetheless illuminates clearly several significant aspects of relations between
United States – Certain Country of Origin Labelling (cool) Requirements, Request for the Establishment of a Panel by Mexico, WT/DS386/813 October 2009, paragraph 8.4(a). 237 United States – Certain Country of Origin (cool) Requirements, AB-2012-3, Appellate Body Report, WT/DS384/AB/R, WT/DS386/AB/R (hereafter us – cool, ab Report). 238 us – cool, Panel Report, supra note 223, paragraphs 7.734–7.735. 239 us – cool, ab Report, supra note 237, paragraphs 190, 485. 240 United States – Certain Country of Origin (cool) Requirements, Recourse to Article 21.5 of the dsu by Canada and Mexico, WT/DS384, DS386/RW. 241 For u.s. law: The United States Supreme Court held in Food and Drug Administration et al. v Brown & Williamson Tobacco Corporation et al., 529 u.s. 120, that the fda did not have the authority to regulate tobacco. Subsequently the u.s. Congress enacted the Family Smoking Prevention and Tobacco Control Act, Pub.L.111-31, h.r. 1256, which was signed into law by President Barack Obama on 22 June 2009 and gave the fda the authority to regulate tobacco products. It does not apply to food, which today is regulated by the Food Safety Modernization Act, Pub.L. 111–353, 21. u.s.c. 301 et seq. For eu law: See Regulation (ec) No. 178/2002of the European Parliament and the Council of 28 January 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, article 2, paragraph 3(f), oj ec, 1.2.2002, L31/1. For China: United States Department of Agriculture, Global Agricultural Information Network, People’s Republic of China, Food Safety Law of the People’s Republic of China 2009, gain Report Number: CH9019, 11 March 2009, Article 99, first paragraph of which defines ‘food’ as ‘any substance that has been processed or not processed that is suitable for eating and/or drinking, including substances used as food and medicine, excluding substances solely used as medicine’. China National
Tobacco Corporation is responsible for production, marketing, distribution and sales of tobacco. It is under the jurisdiction of the State Tobacco Monopoly Administration, not the cfda. See Wikipedia, ‘China Tobacco’, available at http://en.wikipedia.org/wiki/ China_Tobacco, last accessed 15 March 2015. 242 United States – Measures Affecting the Production and Sale of Clove Cigarettes, Panel Report, WT/DS406/R, deadline for appeal extended to 20 January 2012 (hereafter us – Clove Cigarettes, Panel Report). 243 Ibid., paragraph 2.29. 244 Ibid., paragraphs 2.30–2.32. 245 Ibid., paragraph 7.5. 246 Ibid., paragraphs 7.229–7.231. 247 Ibid., paragraph 7.230. 248 Ibid., paragraph 7.229. 249 Ibid., paragraph 7.230. 250 Ibid., paragraph 7.230.
‘permeate and inform’, in other words to justify, its conclusion that clove- flavoured cigarettes and methol cigarettes were like products.251 The Panel also relied on a report by a United States statutorily created body, the Tobacco Products Scientific Advisory Committee, to corroborate its find- ings on ‘like products’, in particular on consumer preferences.252 In addition, the Panel also took account of tariff nomenclatures based on the Harmonised System and concluded that clove and menthol cigarettes are classified under the same subheading.253 The latter practice followed earlier Appellate Body case law,254 in referring to and using directly in legal analysis the norms devel- oped by an analogous international organization that specialized in a field intimately concerned with international trade and not covered by the wto. This was a kind of ‘horizontal reference’ or ‘horizontal relations’, because the two sites of governance (wto and wco) are both based on international trea- ties, specialize in closely related fields, are the leading international organ- isations in their respective fields, and thus are roughly analogous, though differing substantially in power and general salience.255 The Panel concluded that imported clove cigarettes and menthol cigarettes are like products and, because imports of clove cigarettes were banned while menthol cigarettes were allowed to remain on the market, that clove cigarettes were treated less favourably under Article 2.1 tbt256 and therefore was inconsistent with Article 2.1 tbt.257 As to whether the ban was more trade-restrictive than necessary, both parties drew on the who Guidelines in their arguments; Indonesia argued, inter alia, the that the who Guidelines provided less trade-restrictive alternatives.258 In analyzing their effects of clove cigarettes as ‘trainer’ ciga- rettes, the Panel again referred to the who Guidelines as ‘drawing on the best available scientific evidence and the experience of Parties’ and as showing the growing international consensus; it also referred to the Guidelines recommen- dation that ingredients which increase the palatability of tobacco products should be restricted or prohibited,259 even though a ban was not among the measures set out in the wto Framework Convention on Tobacco Control.260
251 Ibid., paragraphs 7.248 and 7.255. 252 Ibid., paragraph 7.228. 253 Ibid., paragraphs 7.233–7.239. 254 European Communities – Customs Classification of Certain Computer Equipment, Appellate Body Report, WT/DS62, 67, 68/AB/R, paragraph 89. 255 I am grateful to Dong Shi for this point. 256 us – Clove Cigarettes, Panel Report, supra note 242, paragraph 7.292. 257 Ibid., paragraph 7.293. 258 Ibid., paragraph 7.317, see also paragraphs 7.323, 7.324 (us argument). 259 Ibid., paragraph 7.414. 260 Ibid., paragraph 7.427.
However, it also concluded that Indonesia failed to demonstrate that the ban was more trade-restrictive than necessary to fulfill the legitimate objective of reducing youth smoking and was therefore inconsistent with Article 2.2 tbt.261 The Panel referred to an iso/iec Directive to elucidate its analysis of the purpose of Article 2.8 tbt requiring product requirements to be laid down in functional terms if possible.262 It quoted a Decision of the tbt Committee to the effect that:
In order to serve the interests of the wto membership in facilitating international trade and preventing unnecessary trade barriers, inter national standards need to be relevant and to effectively respond to regulatory and market needs, as well as scientific and technological developments in various countries. They should not distort the global market, have adverse effects on fair competition, or stifle innovation and technological development. In addition, they should not give preference to the characteristics or requirements of specific countries or regions when different needs or interests exist in other countries or regions. Whenever possible, international standards should be performance based rather than based on design or descriptive characteristics.263
Indonesia referred to an international standard in its argument that that there was an established way of determining thresholds at which flavours can be detected.264 However, the Panel rejected Indonesia’s argument that the United States should have formulated its law in terms of ‘performance’.265 Nevertheless, the Panel also concluded that the failure of the United States to notify wto Members through the Secretariat of products covered in time to allow amend- ments and comments was contrary to Article 2.9.2 tbt266 and that its failure to allow at least six months between publication and entry into force was con- trary to Article 2.12 tbt.267
261 Ibid., paragraphs 7.428, 7.432. 262 Ibid., paragraph 7.481. 263 Ibid., paragraph 7.482. 264 Ibid., paragraph 7.492. The standard was astm E679 – 04 ‘Standard Practice for Determination of Odor and Taste Thresholds By a Forced-Choice Ascending Concentration Series Method of Limits’ http://www.astm.org/Standards/E679.htm. astm was formerly known as American Society for Testing and Materials, develops and markets international voluntary consensus-based standards: see http://www.astm.org/ABOUT/overview.html, visited 23.12.2011. 265 Ibid., paragraph 7.497. 266 Ibid., paragraph 7.542. 267 Ibid, paragraph 7.595.
On appeal, the Appellate Body upheld, for different reasons, the findings of the Panel that clove cigarettes and menthol cigarettes are like products, that the us measure was inconsistent with Article 2.1 tbt on national treatment and that the us should have allowed a period of at least six months between publication and entry into force of its measure. It did not, however, mention the who Framework Convention on Tobacco Control.268 This case is significant for several reasons. First, the arguments of both the parties and the Panel centred on several international standards. Second, Indonesia was not a signature of the who Framework Convention on Tobacco Control, the source of the who Guidelines. Nevertheless, the Guidelines fig- ured prominently in the case at the panel stage. The Panel skirted around the sovereignty problem by treating the Guidelines not as legally binding rules or soft law but as an expression of international consensus based on scientific evi- dence, which could ‘inform’ its analysis, not ‘determine’ it, still less be a source of rules which the Panel should apply. Indonesia did not protest, and indeed it referred to the Guidelines itself. Third, when the case was appealed, the Director-General of the who wrote to the Presiding Member of the Appellate Division of the wto to express interest and offer assistance in areas covered by the who mandate. The United States and the eu comment on the letter. In the event, since the parties had already submitted much material on who legal instruments and other information, the Appellate Body decided not to request assistance.269 Fourth, the Appellate Body in its report recorded Indonesia’s statement that the Panel had considered evidence from the who.270 Otherwise, however, it did not even mention the Framework Convention on Tobacco Control, though it upheld, for different reasons, the Panel report.271
India – Agricultural Products In India – Agricultural Products272 the United States in March 2012 requested consultations with India about the India Livestock Importation Act 1898, related orders and amendments and implementing measure.273 The measures
268 United States – Measures Affecting the Production and Sale of Clove Cigarettes, Appellate Body Report, WT/DS406/AB/R, adopted 24 April 2012 (hereafter usd – Clove Cigarettes, ab Report). 269 Ibid., paragraph 11. 270 Ibid., paragraph 17. 271 Ibid., paragraph 298. 272 India – Measures Concerning the Importation of Certain Agricultural Products, Panel Report, WT/DS430/R, final report circulated 14 October 2014 (hereafter India – Agricultural Products, Panel Report). 273 On the measures in question, see ibid., paragraphs 2.34–2.4.4.
274 India – Measures Concerning the Importation of Certain Agricultural Products from the United States, DS430, summary available at http://www.wto.org/english/tratop_e/ dispu_e/cases_e/ds430_e.htm, last accessed 9 April 2013. 275 Note that Asian countries are among the world’s largest importers of poultry, but India reported only 23 tonnes of imports of poultry meat between 2000 and 2008: The Poultry Site, ‘Global Poultry Trends -‘Asia: The Major Chicken Importer’, Wednesday, 19 October 2011, available at http://www.thepoultrysite.com/articles/2195/global-poultry-trends -asia-the-major-chicken-meat-importer, last accessed 12 January 2015. 276 On the disease, typology and transmission of avian influenza, see India – Agricultural Products, Panel Report, supra note 272, paragraphs 2.4–2.21. 277 On the history, objectives and structure of the Terrestrial Code, see ibid., paragraphs 2.4.5–2.59. 278 Ibid., paragraph 2.4.4.1. 279 Ibid., paragraph 2.4.4.2. 280 Ibid., page 17, note 13.
…The first scenario is where a Member adopts an sps measure that embodies an international standard completely, and thus ‘conforms to’ such standard, as provided in Article 3.2. In that case, the conforming sps measure benefits from a rebuttable presumption of compliance with the sps Agreement and the gatt 1994.287
The second scenario is where the sps measure adopts some, but not all, of the elements of that standard. In this case, the sps measure would not ‘conform to’ the standard but rather would be ‘based on’ it, as provided in Article 3.1. The sps measure would thus not benefit from the above presumption of compliance, but…the burden of proof would
281 Ibid., paragraphs 1.23, 1.29–1.30. 282 Ibid., dia, paragraphs 1.24 – 1.26. See paragraphs 1.2–1.30 on the selection. 283 Ibid., paragraphs 1.32–1.37. 284 As the Panel formulated the situation: ‘The first three paragraphs of Article 3 of the sps Agreement set out the obligation of Members to harmonize their SPS measures by either basing them on or conforming to international standards, while leaving open some lee- way for departing from those standards, subject to consistency with the remainder of the sps Agreement’: Ibid., paragraph 7.196. 285 sps Agreement, supra note 762, Article 3(2). 286 ec – Hormones, ab Report, supra Chapter 4 note 14, paragraphs 170–172. 287 India – Agricultural Products, Panel Report, supra note 272, paragraph 7.198.
still lie on the complainant to make a prima facie case of violation of Article 3.1.288
Finally, as a third scenario, a Member may decide to deviate from the recommendations of an international standard and adopt an sps mea- sure which results in a higher standard of protection than the one pre- scribed in the standard, as provided in Article 3.3. In this case, the Member must ensure that its measure is consistent with the other relevant provi- sions of the sps Agreement. This would entail, for instance, the need to be the sps measure on science, including a risk assessment in accordance with Articles 5.1 and 52 of the sps Agreement.289
A wto Member is free to choose any of the scenarios.290 Second, if there are several editions of an international standard, which edi- tion applies? In this case, both the United States and India agreed that the relevant international standard was the Terrestrial Code.291 However, the Terrestrial Code is reviewed annually,292 and three editions of the Terrestrial Code were still available.293 The Panel pointed out that this was the first time the issue of relevant edition had been addressed in wto dispute settlement.294 It sought to strike a balance between using the most up-to-date science, on the one hand, and respect for the fundamental legal principle of due process, on the other hand. It concluded it should use the 21st [May 2012] edition,295 because this ‘edition reflects the latest science at a point in time that would not only allow the complainant to make its case, but would also avail the respondent of the opportunity to defend itself’.296 Third, to what extent does the product coverage of the international stan- dard apply to the products covered by the measures challenged in the case? The Panel next examined the product coverage of the Terrestrial Code. It relied heavily on the oie.297 After a detailed analysis, it concluded that the Terrestrial Code does not provide for the imposition of import prohibitions on
288 Ibid., paragraph 7.199. 289 Ibid., dia, paragraph 7.200. 290 Ibid., paragraph 7.201. 291 Ibid., paragraph 7.206. 292 Ibid., paragraphs 7.207, 7.210. 293 Ibid., paragraph 7.207. 294 Ibid., paragraph 7.209. 295 Ibid., paragraph 7.213. 296 Ibid., paragraph 7.211. 297 Ibid., paragraphs 7.221–7.227.
298 Ibid., paragraph 7.239. 299 Ibid., paragraph 7.251. 300 Ibid., paragraphs 7.256–7.261. 301 Ibid., paragraphs 7.250. 302 See ibid., paragraphs 7.255, 7.260, 7.261. 303 Ibid., paragraph 7.262. 304 A case currently in progress also concerns regionalisation: In Russian Federation – Measures on the Importation of Live Pigs, Pork and Other Pig Products from the European Union (WT/DS475/R), the eu requested consultations with Russia on 8 April 2014; a panel was established on 22 July 2014 and composed on 23 October 2014; one panel member resigned on 30 October 2014 and was replaced on 3 November 2014; and another panel member resigned on 26 November 2014 and was replaced on 4 December 2014: World Trade Organization, Dispute Settlement, Dispute DS475 In Russian Federation – Measures on the Importation of Live Pigs, Pork and Other Pig Products from the European Union, Current status, available at http://www.wto.org/english/tratop_e/dispu_e/cases_e/ ds475_e.htm, last accessed 12 January 2015. 305 India – Certain Agricultural Products, Panel Report, supra note 272, paragraph 7.275, 8.1(c)(ii).
Conclusion
Parties in wto cases, wto panels and the Appellate Body refer to interna- tional standards bodies and their norms frequently in cases involving food safety regulation. The ways in which the wto dispute settlement institutions deal with these cross-references often have great significance for the regula- tion of food safety, extending far beyond the parties to the case. Table 7.1 sum- marises the cases discussed in this chapter. It shows case number and short title, complainant, respondent, third parties, who won, the international stan- dards body whose norms were mentioned in the case, whether the panel or Appellate Body or both discussed the standard and the specific topics regard- ing standards involved in the case. Several points stand out. First, most of the cases concerned agricultural (including beef and poultry) or fishery products; exceptions were ec – Biotech and us – Clove Cigarettes. Second, the United States, eu, Japan, Australia or New Zealand was at least one of the parties, either complainant or respondent, in every case. These highly developed countries are among the leaders in developing food safety standards. They seek actively to enforce or defend their standards. Third, the complainant always won; the sole partial exception was ec Biotech, in which both complainant and respondent had grounds for claiming victory. In all cases, the complainant was able to enforce its view of the meaning and application of the interna- tional standards in question, at least to the extent to which the standards were recognized by the Appellate Body. Fourth, the cases involved a small number of standards organisations: Codex, oie, ippc, who. These are the main organisations identified by the sps Agreement as the sources of standards regarding food safety regulation. Fifth, the complexity of legal and other issues increased more or less chronologically. Early cases set out the basic concepts of the standard for reviewing Members’ food safety measures, risk assessment, alignment, the precautionary principle
306 Ibid., paragraph 8 [Conclusions and Recommendations]. 307 Ibid., paragraph 7.318. 8.1(c)iii).
Table 7.1 wto cases involving international food safety standards
Case Number DS18 DS26 DS76 DS231
Case Name Australia – Salmon ec – Hormones Japan – Agricultural ec – Sardines Products Product Involved Salmon Beef Fruit, nuts Sardines Complainant Canada us, Canada us, Canada Peru Respondent Australia ec Japan ec Third Parties us, ec, India, Australia, nz, ec, Hungary, Brazil Granada, Chile, Norway Norway Colombia, Ecuador, us, Venezuela [panel stage] Winner Complainant Complainant Complainant Complainant International oie International Codex standard ippc Pest Risk Codex standard Standard Body Aquatic Animal Guidelines, Codex Health Code standard wto Body Panel, ab Panel, ab Panel, ab (minimal) Panel, ab Referring To International Standards Interest Risk assessment Alignment, risk Risk assessment definition of Regarding assessment, ‘international’, Standards precautionary consensus, principle, obligation to review experts and revise
Case Number DS245 DS292, 292R DS367 DS384, 386
Case Name Japan – Apples ec – Biotech Products Australia – Apples us – cool Product Apples maize, cotton, sugar Apples Beef and other Involved beet, oilseed rape, meats soybeans, potato Complainant us Argentina, us, nz Canada, Mexico Canada Respondent Japan ec Australia us Third Parties Australia, Brazil, 18 Members, Chile, Chinese 15 Members, nz, Chinese including China Taipei, ec, Japan, including China Taipei, ec, Pakistan, us
Case Number DS245 DS292, 292R DS367 DS384, 386
Winner Complainant Both Complainant Complainant International Several ippc who, ippc, Codex, ippc, ispm Codex stan Standard guidelines on pest fao, oie 1-1985 Body risks wto Body Panel, ab [general Panel [no appeal] Panel, ab Panel, ab Referring To reference only] [briefly noted] International Standards Interest Risk assessment Definitions of terms, Definitions of Relevance to Regarding experts, procedures, terms, experts, domestic Standards risk assessment risk analysis objectives
Case Number DS406 DS430
Case Name us – Clove Cigarettes India – Agricultural Products Product Involved Cigarettes Poultry Complainant Indonesia India Respondent us us Third Parties Brazil,Colombia, Domincan China, Colombia, Ecuador, eu, Republic, eu, Guatemala, Japan, Vietnam, Guatemala, Mexico, Norway, Argentina, Australia, Brazil Turkey Winner Complainant Complainant International Standard who, iftc ioe Terrestrial Animal Health Code Body wto Body Referring To Panel only Panel no appeal International Standards Interest Regarding Evidentiary role of iftc, alignment, applicable edition of Standards sovereignty problems standard, product coverage, regionalisation
Source: Calculated by the author from wto case reports.
308 vclt, supra note 6, Article 31(2),(3).
Introduction
No country is an island in regulating food safety. China is no exception. The 2008 melamine baby formula scandal marked the real integration of China into the world of global legal pluralism regarding food safety regulation. Even before then, China’s accession to the World Trade Organization (wto) on 11 December 2001 signalled China’s desire to join, benefit from and contribute to the world of global legal pluralism about trade. It laid the basis for subse- quent developments such as the wide-ranging impact of wto law on law, econ- omy and society in China,1 the 2009 Food Safety Law and subsequent reforms of legislation and standards, very active Chinese participation in international food standards bodies such as the Codex Alimentarius Commission, and increasing openness of Chinese governmental institutions to legal develop- ments from other countries and international organisations. We live in a world of global legal pluralism. By ‘global legal pluralism’, I mean ‘the totality of strategically determined, situationally specific and often epi- sodic conjunctions of a multiplicity of sites of governance throughout the world’.2 Food safety regulation today is the handiwork of multiple sites of gov- ernance. A site of governance is ‘a locus of decision-making with the authority to settle disputes’.3 In origin, sites of governance may be public, private or hybrid, that is, mixed public-private. In scope, they may be international, transnational, regional, national or local. Each site of governance ‘has two dimensions: a structural dimension, comprising institutions, norms and dis- pute-settlement processes, and a relational dimension, which refers to rela- tions between the site and other sites of governance’.4 These two dimensions are interconnected, because the institutions, norms and dispute-settlement processes of a site of governance will affect or condition its relations with other
1 E.g. Zhang Xin, Implementation of the wto Agreements in China (Wildy, Simmons & Hill Publishing, London, 2005) (hereafter Zhang Xin, Implementation); Esther Lam, China and the wto: A Long March Towards the Rule of Law (Kluwer Law International, Alphen aan den Rijn, 2009). 2 Snyder, Legal Pluralism, supra Chapter 2 note 7, p. 49. 3 Ibid., p. 49. 4 Ibid., p. 49.
© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004306929_009
5 For numerous examples, see ibid., p. 49. 6 Ibid., p. 49 (recording my intellectual debts to Levin, Field Theory, supra Chapter 2, note 11 and Bourdieu, Practice, supra Chapter 2, note 10 (R. Nice trans., Cambridge Univ. Press 1977) on social fields and to Moore, Law as Process, supra Chapter 2 note 10 including her earlier article ‘Law and Social Change: The Semi-Autonomous Social Field as an Appropriate Subject of Study’, Law & Society Rev., 7, 1973, 719–46, for the concept of semi- autonomous social field). 7 See China and the wto, World Trade Organization, http://www.wto.org/english/thewto_e/ countries_e/china_e.htm (last accessed 28 December 2014) (In addition to its participation as a third party in panel stage of the wto dispute settlement procedure, China has partici- pated several times in the consultation phase). See Chapter 6 of this book. 8 Zhang Xin, Implementation, supra note 1.
Multilateral Monitoring within the wto
China’s wto Rights and Obligations On joining the wto, China benefitted from the rights of wto membership and undertook numerous obligations. These obligations included those provided in the wto Agreements, to which all wto Members are subject. With regard to food safety, they included the Agreement on Sanitary and Phytosanitary Measures (sps Agreement) regarding measures concerning human, animal and plant health and the Agreement on Technical Barriers to Trade (tbt Agreement) regarding legally binding measures (called technical regulations in wto terminology) and non-legally binding standards (called standards in wto terminology). In addition, China accepted other obligations, known as ‘wto plus’, which went beyond the wto Agreements and also beyond any obli- gations ever imposed previously on any other acceding Member. The wto plus obligations were specified, together with the basic wto obligations, in the Report of the Working Party on the Accession of China9 and the Protocol on the Accession of the People’s Republic of China.10 The Working Party Report contained a large number of legal obligations.11 They included specific legal commitments concerning tbt measures12 and sps measures.13 The Working Party Report recorded the detailed and sometimes intense exchange of views between the Working Party and the Chinese govern- ment with regard to these measures.14 With regard to tbt measures, the main points of discussion were the opportunity for public consultation and comment on proposed legislation and standards;15 the relationship between Chinese standards and international standards, guidelines or recommendations;16
9 World Trade Organization, Report of the Working Party on the Accession of China, WT/ ACC/CHN/49 (1 October 2010); also available in wto/omc, Compilation of the Legal Instruments on China’s Accession to the World Trade Organization (Law Press China, Beijing, 2001) (hereafter wto Working Party Report). 10 World Trade Organization, Protocol on the Accesssion of China (Cambridge University Press, Cambridge, 2003); also available in wto/omc, Compilation of the Legal Instruments on China’s Accession to the World Trade Organization (Law Press China 2001) (hereafter wto China Accession Protocol). 11 wto Working Party Report, supra note 9, paragraph 342. 12 Ibid., paragraphs 177–178, 180, 182, 184–185, 187, 190–197. 13 Ibid., paragraphs 199–200. 14 Ibid., paragraphs 177–197 (tbt measures), 198–202 (sps measures). 15 Ibid., paragraphs 177–178. 16 Ibid., paragraphs 179–180, 183–184, 186–187.
differences between Chinese legal terminology and wto terminology;17 local government and non-governmental bodies authorised to adopt legally binding measures (technical regulations in wto terminology) or conformity assessment procedures;18 China’s conformity assessment regime, including duplication of and discrimination in conformity assessment of imports, respect for confiden- tiality, acceptance of the results of conformity assessment bodies in other wto Members and foreign or joint venture conformity assessment bodies;19 and registration of imports of chemicals and problems with existing certification marks.20 With regard to sps measures, the main points of discussion con- cerned the use of sps measures as trade barriers;21 conformity of domestic Chinese measures with the sps Agreement and international standards;22 and notification of domestic sps measures to the wto.23 The Protocol brought China’s commitments as recorded in the Working Party Report into wto law.24 The Protocol itself also contained not only gen- eral legal obligations such as uniform administration of laws, regulations and other measures of central government and sub-national governments25 and transparency (paragraph 2(C)). China was also required to publish all criteria for domestic tbt measures,26 to bring all domestic tbt measures into confor- mity with the tbt Agreement (paragraph 13(2)), and to notify the wto within 30 days after accession ‘all laws, regulations and other measures relating to its sanitary and phytosanitary measures, including product coverage and relevant international standards, guidelines and recommendations’.27 As part of these wto obligations, China’s trade policy has been subject to two types of multilateral monitoring within the wto. The first type was a Transitional Review Mechanism (trm), to which China was subject each year during its first ten years of wto membership. It was part of wto plus and expired at the end of 2011. The second type is the Trade Policy Review Mechanism (tprm), to which all wto Members are subject and in which
17 Ibid., paragraphs 181–182. 18 Ibid., paragraph 185. 19 Ibid., paragraphs 186–195. 20 Ibid., paragraphs 196–197. 21 Ibid., paragraphs 198–199. 22 Ibid., paragraph 200. 23 Ibid., paragraphs 201–202. 24 wto China Accession Protocol, supra note 10, paragraph 1(2). 25 Ibid., paragraphs 2(A)(1), (2). 26 Ibid., paragraph 13(1). 27 Ibid., paragraph 14.
China, as a wto Member, is required to participate.28 The following paragraphs consider first the trm and then the tprm. The chapter focuses mainly on the tprm. It highlights systemic issues concerning relations between the wto and the Chinese food safety regime, but it also identifies particular issues about market access for specific products. Questions regarding systemic issues, how- ever, often mask pragmatic concerns about market access.
The Transitional Review Mechanism During the first ten years of its membership of the wto, China was subjected to a Transitional Review Mechanism as part of ‘wto plus’. The wto Protocol on the Accession of China provided in its Section 18 for a Transitional Review Mechanism (trm).29 All subsidiary bodies of the wto whose mandate cov- ered China’s wto commitments were required to review China’s implemen- tation of its wto obligations, whether under the wto Agreements or under the Protocol, within the scope of its specific mandate.30 The review was to take place each year after accession for a period of eight years, with a final review in the tenth year after accession, or earlier if decided by the General Council.31 The relevant subsidiary bodies included ‘Council for Trade in Goods, Council for Trade-Related Aspects of Intellectual Property Rights, Council for Trade in Services, Committees on Balance-of Payments Restrictions, Market Access (covering also ita), Agriculture, Sanitary and Phytosanitary Measures [sps Agreement, covering human, plant and animal health, including food safety], Technical Barriers to Trade [tbt Agreement, which also dealt with aspects of food safety], Subsidies and Countervailing Measures, Anti-Dumping Measures, Customs Valuation, Rules of Origin, Import Licensing, Trade-Related Investment Measures, Safeguards, [and] Trade in Financial Services’.32 China was required to provide specified information to each body.33 Annex 1A of the Protocol listed this information in a non-exhaustive way; note that the Protocol, Article 18:1 provides for the provision of ‘relevant information, including infor- mation specified in Annex 1A’.34
28 Trade Policy Review Body, Trade Policy Review, China, Report by the Secretariat, revision, WT/TPR/S/264/Rev.1 (20 July 2012). 29 wto, China Accession Protocol, supra note 10. 30 Ibid., section 18.1. 31 Ibid., sections 18.1, 18.4. 32 Ibid., section 18.1. 33 Ibid., section 18.1. 34 Ibid., section 18.1.
With regard to information to be provided to the tbt Committee, Annex 1A(7) provided inter alia for:
(a) notification of acceptance of the Code of Good Practice not later than four months after China’s accession (b) periodic review of existing standards of government standardizing bod- ies and harmonization of the same with relevant international standards where appropriate (c) revision of current voluntary national, local and sectoral standards so as to harmonize them with international standards (d) use of the terms ‘technical regulations’ and ‘standards’ according to their meaning under the tbt Agreement in China’s notifications under the tbt Agreement, including under Article 15.2 thereof and publications referenced therein, and in modifications of existing measures (e) progress report on increase of the use of international standards as the basis for technical regulations by ten per cent in five years (f) progress report on increase of the use of international standards (g) provision of procedures to implement Article 2.7 of the Agreement [on preparation, adoption and application of technical regulations by central government bodies] (h) provision of a list of relevant local governmental and non-governmental bodies that are authorized to adopt technical regulations or conformity assessment procedures as part of China’s notification under Article 15.2 of the Agreement [concerning review of Member’s technical regulations or procedures]35 ….
Annex 1A did not mention information to be provided to the sps Committee, even though such information was clearly required by Article 18:1 of the Protocol. Nevertheless, we may assume that, mutatis mutandis, similar require- ments applied to China with regard to sps measures. China was entitled to raise any issues concerning reservations by other wto Members or concerning other specific commitments made by other wto Members.36 Each body was required to report its review results promptly to the relevant Council, if applicable, and the relevant Council, if any, was required to report promptly to the General Council.37
35 Ibid., Annex 1A. 36 Ibid., section 18.1. 37 Ibid., section 18.1.
Article 18:2 of the Protocol provided that the wto General Council was to review China’s implementation of the wto Agreements and the Accession Protocol each year after accession for eight years, with a final review in the tenth year or earlier if decided by the General Council.38 Annex 1B of the Protocol pro- vided the framework of the General Council’s review. This included a review of the reports and issues covered by the subsidiary bodies, development of China’s trade and ‘recent developments and cross-sectoral issues regarding China’s trade regime’.39 In other words, the tpr imposed a considerable burden on the Chinese Government. The scope of this review was extremely broad, covering any issues regarding China’s obligations under the wto Agreements or the Accession Pro tocol, including food safety legislation and standards, and for the specified period the Review was carried out every year. Despite the broad scope and annual periodicity of the trm, an inspection of all trm reports reveals that there seems to have been no discussion of China’s 1995 Food Hygiene Law, which was in force at that time, or of China’s food safety standards, or indeed of its Standardization Law or different types of standards, or indeed more broadly with China’s compliance with the tbt Agreement or the sps Agreement. This was so even though such questions had been mentioned not only in the Working Party Report and the Protocol but also in the bilateral agreements concluded by China with its main trading partners preceding wto accession. For example, the us-China wto Agreement, signed on 19 November 1999, recorded in its section on Agriculture that China agreed ‘to eliminate unscientific sps barriers’.40 The eu-China bilateral agree- ment, concluded on 19 May 2000, stated that China would comply with the wto sps Agreement, resolve various outstanding issues with eu Member States and conclude subsequent agreements with eu Member States as neces- sary before China’s formal entry into the wto.41 The concern with sps issues was reiterated in the European Commission’s Overview of the Terms of China’s Accession to the wto.42 After the Working Party Report and the Protocol,
38 Ibid., sections 18.2, 18.4. 39 Ibid., sections 18.2, 18.4. 40 us-China Agreement on China’s wto Accession, The China Business Review 2001, at ii (on file with author); The Bilateral Agreement and the United States, The China Business Review 2001 (on file with author). 41 ‘The Sino–eu Agreement on China’s Accession to the wto: Results of the Bilateral Negotiations’, (20 June, 2001), p. 4, available at http://trade.ec.europa.eu/doclib/docs/2003/ april/tradoc_111851.pdf (last accessed 28 December 2014); also available in Snyder, Basic Documents, supra note 135. Pp. 1061–1064. 42 European Commission Overview of the Terms of China’s Accession to the wto (1 October 2001), available at http://trade.ec.europa.eu/doclib/docs/2003/october/tradoc_111955.pdf
however, it seems that, except for discussions in specific committees as will be seen later, these issues did not come to the fore in the wto until China’s first participation in the tprm.
The Trade Policy Review Mechanism (tprm) The tprm was originally established on 12 April 1989 under the 1947 General Agreement on Tariffs and Trade (gatt 1947),43 hence before the wto was established and therefore before China acceded to the wto on 11 December 2001. In 1994 the Marrakesh Agreement Establishing the World Trade Organi zation (wto Agreement) expanded the gatt 1947 tprm to cover intellectual property rights and trade in services.44 According to Article iii: 4 of the wto Agreement, tprm is a basic function of the wto. Article iii: 4 wto refers expressly to Annex 3 of the wto Agreement, which provides objectives and procedures.45 The objectives of the tprm are ‘to contribute to improved adher- ence by all Members to [wto] rules, disciplines and commitments…and hence to the smoother functioning of the multilateral trading system, by achieving greater transparency in, and understanding of, the trade policies and practices of Members’. The tprm makes possible a ‘regular collective appreciation and evaluation’ of Members’ trade ‘policies and practices and their impact on the functioning of the multilateral trading system’.46 Annex 3, section C (i) wto establishes the Trade Policy Review Body (tprb) to carry out the tprm. The wto General Council, composed of representatives of all wto Members,47 discharges the responsibilities of the tprb.48 It reviews the trade policies and practices of each wto Member periodically, with the frequency depending on the Member’s share of world trade. Annex iii pro- vides that the first four trading entities [now including China, the United States,
(last accessed 28 December 2014); also available in Snyder, Basic Documents, supra note 135, pp. 1069, 1073. 43 World Trade Organization, Restructuring and further trade liberalization are keys to sustaining growth, available at http://www.wto.org/english/tratop_e/tpr_e/tp330_e.htm (last accessed 28 December 2014); Terence B. Stewart (eds.), The gatt Uruguay Round: A Negotiating History (Kluwer Law International, Dordrecht, 1993), p. 1027 n. 59; Petros C. Mavroidis, ‘Surveillance Schemes: The gatt’s New Trade Policy Review Mechanism’, Michigan Journal of International Law, 13, 1992, pp. 374–414 (hereafter Mavroidis, ‘Surveillance’). 44 World Trade Organization, The Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations (Cambridge University Press, Cambridge, 1999) pp. 284, 321. 45 Ibid., pp. 434–437. 46 All quotations in this paragraph are drawn from ibid., p. 380. 47 Ibid., pp. 7–8, vi: 2. 48 Ibid., pp. 6, iv: 4.
wto tprm Reviews of China’s Food Safety Regime
The tprm and Food Safety Regulation in China So far, there have been five Reviews of China’s trade policies and practices. The first occurred on 19 and 21 April 2006,54 the second on 21 and 23 May 2008,55 the third on 31 May–2 June 2010,56 the fourth on 12 and 14 July 2012 and the fifth on 1 and 3 July 2014.57 This section of the paper analyses these Trade Policy Reviews focusing on food safety. Here I interpret ‘food safety’ broadly to include all matters concerning food from farm to table, including import procedures, food safety laws, standards and related matters that have a more or less direct effect
49 Ibid., p. 380, C (ii). 50 Ibid., p. 381, C (v). 51 Craig VanGrassteck, The History and Future of the World Trade Organization (World Trade Organization, Geneva, 2013) pp. 279, 284. 52 World Trade Organization, The Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations (Cambridge University Press, Cambridge, 1999), p. 381, C (vi). 53 Ibid., p. 380, A (i). 54 See World Trade Organization, Trade Policy Review: China, http://www.wto.org/english/ tratop_e/tpr_e/tp262_e.htm (last accessed 28 December 2014). 55 See ibid. 56 See World Trade Organization, Restructuring and further trade liberalization are keys to sustaining growthavailable at http://www.wto.org/english/tratop_e/tpr_e/tp330_e.htm (last accessed 28 December 2014). 57 See China and the wto, World Trade Organization, http://www.wto.org/english/thewto _e/countries_e/china_e.htm (last accessed 28 December 2014).
The 2006 Trade Policy Review The first China tpr was held almost five years after China’s wto accession. The Chinese Government Report58 did not mention food safety directly, although it noted reform of other legislation to comply with wto rules and improvements in government transparency.59 The Ministry of Commerce was the notification authority for sps measures. The sps enquiry point was in the Administration for Quality Supervision and Quarantine (aqsiq). The State Food and Drug Administration (sfda), established in 2003, was responsible for overall supervision of food safety. In addition, the Ministry of Agriculture (moa), the Ministry of Health (moh), aqsiq and the General Bureau of Industrial and Commercial Administration (i.e. The State Administration for Industry and Commerce (saic)) were responsible for supervision of specific food products and processed food products.60 The wto Secretariat report noted a decline in non-tariff measures and a sim- plification of the import licensing regime and other border measures. However, China still had many sps measures, and border examination and approval pro- cedures were not clear.61 More critically, the Secretariat report remarked that:
Members have raised a number of questions concerning China’s tbt and sps measures in the relevant wto Committees. In the tbt Committee,
58 Trade Policy Review Body, Trade Policy Review, Report by the People’s Republic of China, WT/TPR/G/161 (17 March 2006). 59 Trade Policy Review Body, Trade Policy Review, Report by the People’s Republic of China, WT/TPR/G/161 (17 March 2006) p. 12, paragraphs 45, 46. 60 Trade Policy Review Body, Trade Policy Review, People’s Republic of China, Report by the Secretariat, WT/TPR/S/161 (28 February 2006) p. 93, paragraph 101. 61 Ibid., p. 60, paragraph 4.
while commending China’s efforts to bring its tbt measures into confor- mity with the Agreement, Members have raised concerns on a number of issues, including the ccc mark system, the adoption of international standards, and a number of sector-specific issues. China has stated that it recognizes the importance of adopting international standards, which were used as a basis for developing its technical regulations, standards and conformity assessment procedures, and that domestically produced and imported products were treated in the same manner. In the sps Committee, Members have raised concerns, inter alia, about China’s apparent use of sps measures to ban imports of affected products from countries rather than just the affected regions within countries; and an apparent failure to notify a number of its sps regulations issued since 2002. With regard to the latter, China believes that Members had misunderstood the notifications China had made immediately upon accession to the wto. In addition, China has indicated that its sps standards were fully compliant with inter- national standards and were based on risk assessment.62
As of 2005, ‘32% of [Chinese] standards were based on international standards: as a result of a current review, 44% of current standards are to be revised to ensure their conformity with international standards, while 11.6% are to be abolished’.63 According to the Secretariat, the percentage of Chinese standards of all types which were equivalent to international standards had remained static at about 32% since 2000.64 Another issue identified by the wto Secretariat was institutional fragmen- tation. With regard to agriculture, for example, the Secretariat Report noted that
[A]t least 16 institutions, including ministries, banks, and commissions are involved in governing agriculture and its upstream and downstream subsectors: they are divided into four tiers according to legal responsibil- ity [table omitted]. The coordination of policy-making and implementa- tion among these agencies is difficult because their functions are often fragmented and overlap. For instance, eight agencies are responsible for quality and safety management of agricultural products, eight for agri cultural investment, six for processing and allocation of farm products, and five for the provision of inputs. Coordination is also difficult because
62 Ibid., p. 88, paragraph 101. 63 Ibid., p. xi, paragraph 12. 64 Ibid., p. 60, paragraph 4, p. 90, paragraph 90.
of the divergent priorities and interests of the different ministries. Coordination problems also arise because of the gradual decentraliza- tion in government power over the past 20 years. Sub-national govern- ments have become more influential in the policy-making process and have often been free to decide how to implement national government policies, resulting in some variations in the ways national policies have been implemented.65
Institutional fragmentation, together with alignment, would prove to be a major concern of China’s trading partners in later reviews. At the 2006 tpr the Chinese Government received over 1,100 questions, pre- pared advance replies to more than 400 of them and planned to answer the remaining questions within a month.66 The written statement by the Chinese Government’s representative suggests the scope of the endeavour:
In preparation for China’s first Trade Policy Review, almost all of the Central Government bodies had been mobilized. Dozens of government officials had participated in the face to face discussions with the Secretariat in their three visits to Beijing, explaining the rationale for China’s policies, which were aimed at meeting the challenges for its future sustainable development. Officials had also been working in China to respond to Members’ questions.67
The discussant, H.E. Burhan Gafoor from Singapore, noted that, among the record number of questions, ‘contingency measures, standards and intellec- tual property rights’ attracted the most attention.68 He remarked that the Chinese standards system was complex and asked how China planned to align its more national standards on international standards.69 In discussion, all Members noted China’s extraordinary economic growth, but numerous participants identified what they considered to be shortcom- ings of China’s food safety regime. Here, for reasons of space, I give only selected examples about food safety. The United States noted that:
65 Ibid., p. 165, paragraph 15. 66 Trade Policy Review Body Report, Trade Policy Review, People’s Republic of China, Minutes of Meeting, WT/TPR/M/161 (6 June 2006) p. 4, paragraph 5. 67 Ibid., p. 4, paragraph 5. 68 Ibid., p. 9, paragraph 30. 69 Ibid., p. 9, paragraph 31.
China had not fully embraced international sps standards and science- based rulemaking. However, he [the us Representative] was pleased by China’s commitment to make improvements. He also appreciated China’s efforts to notify its food safety standards and requirements to the wto, although he remained concerned that many Chinese regulatory agencies continued to implement and enforce new or revised sps measures with- out prior notification or public comment periods.70
Switzerland expressed a similar concern about alignment.71 New Zealand commented on the scale and complexity of Chinese quaran- tine and other sps measures. According to its representative,
New Zealand had experienced an overly rigid and inefficient approach from some government agencies, which had accorded insufficient prior- ity to the goal of, where possible, allowing less or least trade restrictive measures to meet sps objectives. There remained room for improvement, including in risk assessment, equivalence, streamlining of information requirements, transparency, and removing duplicative testing measures, particularly as these were implemented locally.72
Brazil and Kenya also commented on the complexity of China’s sps mea- sures.73 The European Communities [now European Union] noted that ‘[t]he legitimate expectations of market access at the time of China’s entry to wto had not been fully fulfilled’, and commented that the ccc system and various sps requirements amounted to non-tariff barriers.74 Several countries asked questions concerned directly with their specific prod- ucts exported to China. India remarked that goods from some countries could be imported without any sps protocols, hence the most-favoured-nation (mfn) principle was not being respected. It also noted that ‘it had taken China three years to finalize the protocol on mangoes’ and that ‘China had been processing approval for only one fruit or vegetable at a time’, a very slow working method which it deemed to be a real barrier to trade.75 Canada encouraged China to
70 Ibid., p. 12, paragraph 41. 71 Ibid., p. 13, paragraph 43. 72 Ibid., p. 15, paragraph 58. 73 Ibid., p. 20, paragraph 82, p. 38, paragraph 123. 74 Ibid., p. 24, paragraph 97. 75 Ibid., p. 16, paragraph 62.
76 Ibid., p. 17, paragraph 67. 77 Ibid., p. 19, paragraph 74. 78 Ibid., p. 20, paragraph 80. 79 Ibid., p. 27, paragraphs 116–117. 80 See also Chapter 4 of the book. 81 Trade Policy Review Body Report, Trade Policy Review, People’s Republic of China, Minutes of Meeting, WT/TPR/M/161 (6 June 2006) p. 35, paragraph 155. The China Compulsory Certificate (ccc) mark does not deal with food safety directly: see China Certification, ccc Mandatory Products, available at http://www.china-certification.com/ en/list-of-ccc-mandatory-products, last accessed 16 February 2016; Julian Busch, A Brief Guide to ccc: China Compulsory Certification (Amazon, Marston Gate, 2013). However, it is often invoked in discussions about certification and alignment, and its indirect effect on food imports and exports are of concern to many wto Members. Consequently, it is included in this chapter. Its inclusion does not significantly change findings or statistics about the tprm. 82 Trade Policy Review Body Report, Trade Policy Review, People’s Republic of China, Minutes of Meeting, WT/TPR/M/161 (6 June 2006), p. 36, paragraph 159.
Table 8.1 2006 Trade Policy Review: wto members asking questions about food safety and the subject matter of the questions (in order of page number in the tprb reports)
Country asking tprb report Page number in Subject matter the question tprb report
Australia Add.1 55 Domestic standards Australia Add.1 208 Domestic standards Australia Add.1 208 Domestic standards Australia Add.1 208 Domestic standards Australia Add.1 208 Domestic standards Australia Add.1 208 Relation between domestic standards and international standards alignment Australia Add.1 209 Domestic standards India Add.1 210 Domestic standards of fishery products and sesame seed India Add.1 211 Ban of Indian bovine meat because of foot and mouth disease European Add.1 211 Domestic policy to ensure no Communities discrimination European Add.1 211 Domestic standards within Communities China European Add.1 212 Ban of eu products Communities European Add.1 212 Domestic and international Communities standards alignment European Add.1 213 Domestic standards Communities European Add.1 213 Domestic measures Communities Philippines Add.1 152 Implementation of new sps Thailand Add.1 155 Requirement of original country sanitary health certificates South Africa Add.1 158 Period of validity of import permit South Africa Add.1 158 Domestic standards South Africa Add.1 158 Domestic standards
Table 8.1 2006 Trade Policy Review: wto members asking questions about food safety and the subject matter of the questions (in order of page number in the tprb reports) (cont.)
Country asking tprb report Page number in Subject matter the question tprb report
South Africa Add.1 158 Domestic standards Chinese Taipei Add.1 214 Domestic standards
European Add.2 48 Transparency Communities usa Add.2 49 Labelling Canada Add.2 49 Labelling of gmos Malaysia Add.2 51 ccc mark requirement European Add.2 52 Labelling Communities usa Add.2 92 gis usa Add.2 92 gis usa Add.2 93 gis usa Add.2 93 gis usa Add.2 93 gis usa Add.2 93 gis usa Add.2 94 gis usa Add.2 94 gis Mexico Add.2 94 gis
Source: Calculated by the author from wto Trade Policy Review Body Report.83
Replies to questions submitted in advance of the meeting were published and circulated on 15 June 2006,84 while replies to additional questions together with relies were published and circulated on 11 September 2006, in other words about five months after the meeting.85
83 World Trade Organization, Trade Policy Review Body, Trade Policy Review, People’s Republic of China, Minutes of Meeting, Addendum, WT/TPR/M/161/Add.1, (15 June 2006) and Trade Policy Review Body, Trade Policy Review, People’s Republic of China, Minutes of Meeting, Addendum 2, WT/TPR/M/161/Add.2 (11 September 2006). 84 Trade Policy Review Body, Trade Policy Review, People’s Republic of China, Minutes of Meeting, Addendum, WT/TPR/M/161/Add.1 (15 June 2006). 85 Trade Policy Review Body, Trade Policy Review, People’s Republic of China, Minutes of Meeting, Addendum 2, WT/TPR/M/161/Add.2 (11 September 2006).
Table 8.2 2006 China trade policy review: wto members asking questions about food safety, number of questions and main concerns wto member asking Number of questions Main concerns questions
Australia 7 Domestic standards Canada 1 Labelling [of gmos] Chinese Taipei 1 Domestic standards ec 8 Domestic standards, labelling India 2 Domestic standards, import ban Malaysia 1 ccc mark Mexico 1 gis Philippines 1 Implementation of sps measures South Africa 4 Domestic standards, import permits Thailand 1 Health certificates usa 8 gis TOTAL 11 countries 35
Source: Calculated by the author from wto Trade Policy Review Body Report.86
The 2008 Trade Policy Review Two factors shaped the 2008 review. First, the 2006 Review had already pro- vided other wto Members with the general architecture and main features of China system for regulating food safety, taken in a broad sense, in so far as it affected international trade. Consequently the 2008 Review was in many respects essentially an updating exercise. Second, in 2008, with the beginning of the financial crisis, notably in western countries, the world economy was sliding into recession, resulting in increased protectionism in China’s main trading partners.87 Not surprisingly, given its effect on export markets, China’s Report to the tprb criticised this trend:
86 World Trade Organization, Trade Policy Review Body, Trade Policy Review, People’s Republic of China, Minutes of Meeting, Addendum, WT/TPR/M/161/Add.1, (15 June 2006) and Trade Policy Review Body, Trade Policy Review, People’s Republic of China, Minutes of Meeting, Addendum 2, WT/TPR/M/161/Add.2 (11 September 2006). 87 Trade Policy Review Body Report, Trade Policy Review, Report by China, WT/TPR/G/199 (7 May 2008) p. 5, paragraph 1.
According to a survey by the Ministry of Commerce in 2007 on the influ- ence of foreign standard measures on China’s foreign trade, 15.22% of China’s export enterprises were affected by tbt measures in 2006. Amongst all the 22 major categories of China’s exports, 21 categories suf- fered direct losses from standard measures with a total value of us$75.8 billion, accounting for 7.82% of the total export in 2006. The additional production costs to Chinese enterprises for compliance with the newly proposed technical standards reached us$26.2 billion in 2006. Trade opportunities lost for China’s export enterprises due to foreign techni- cal barriers amounted to us$143.7 billion, accounting for approximately 14.83% of the total export of China in 2006.88
As this statement shows, wto Trade Policy Review is not a one-way street: it also gives an opportunity for the country being reviewed to air its own con- cerns. It also indicated the fact that standards, including sps measures and tbt technical regulations and standards, play an extremely significant role in inter- national trade and global competition. China reported that it had adopted a unified system for conformity assess- ment. It also confirmed its intention to reform its standards setting procedures and to encourage the development of enterprise standards. It planned to facili- tate adoption of international standards and advanced foreign standards,89 as provided in the State Council Regulations for Implementing the Standardization Law.90 With regard specifically to food safety matters, the Chinese Government report made several further points. It had added 88 more commodities to the Inspection and Quarantine List.91 Moreover, it had adopted a unified system for conformity assessment. Finally, it confirmed its intention to reform its standards setting procedures, to encourage the development of enterprise standards and to facilitate adoption of advanced foreign standards and international standards;92
88 Ibid., p. 14, paragraph 61. 89 Ibid., p. 17, paragraph 77. 90 中华人民共和国标准法实施条例 [Regulations for the Implementation of the Stan dardisation Law of the People’s Republic of China] (promulgated by Decree No. 53 of the St. Council, 6 April 1990, effective as of the date of promulgation) Article 4. 91 Trade Policy Review Body Report, Trade Policy Review, Report by China, WT/TPR/G/199 (7 May 2008) p. 17, paragraph 76. 92 Ibid., Trade Policy Review Body Report, Trade Policy Review, Report by China, WT/ TPR/G/199 (7 May 2008) p. 17, paragraph 77.
93 中华人民共和国标准法实施条例 [Regulations for the Implementation of the Stand ardisation Law of the People’s Republic of China] (promulgated by Decree No. 53 of the St. Council, 6 April 1990, effective as of the date of promulgation) Article 4. 94 Trade Policy Review Body, Trade Policy Review, China, Report by the Secretariat, revision, WT/TPR/S/199/Rev.1 (12 August 2008) p. 31, paragraph 30. 95 Ibid., p ix, paragraph 15, p. 43, paragraph 4. 96 Ibid., p. 63, paragraph 67. 97 Trade Policy Review Body, Trade Policy Review, China, Report by the Secretariat, revision, WT/TPR/S/199/Rev.1 (12 August 2008), p. 63, paragraphs 67–68. 98 Ibid., p. 64, Table iii.4. 99 Ibid., p. 65, paragraph 71.
Not surprisingly, the food safety regime remained very complex.100 Admini strative responsibility for food standards was fragmented between the China Standardisation Administration (sac), Ministry of Agriculture, Ministry of Health, State Administration of Industry and Commerce (saic), aqsiq and the State Food and Drug Administration (sfda). Administrative responsibility for labelling was divided among sac, aqsiq and the Ministry of Agriculture, the latter being responsible for agricultural gmos.101 Leaving aside quarantine and the entry/exit system,102 as well as the Law on Agriculture, China’s main sps measures included the Food Hygiene Law, the Law on Animal Disease Prevention, the Law on Import and Export Commodity Inspection, the Law on Frontier Health and Quarantine, the Law on the Entry and Exit of Animals and Plant Quarantine and numerous implementing measures and rules.103 Special rules applied to gmos.104 Starting in 2001, food processing enterprises were required to apply for permits, involving consideration of national standards and inspection of production sites and post-production facilities, including random sampling in food markets.105 The Secretariat noted the connection between food safety and environ- mental policy. It cautioned that ‘[a]s technical regulations [i.e. legally bind- ing measures] are not followed, counterfeit products, linked with inferior quality, could have a significant effect on the health of humans, animals and plants, and the environment’.106 In 2001, China began to implement the Hazard-free Food Action Plan, especially concerning pesticide residues in vegetables and violations of residue standards.107 According to the Chinese Government, special attention was being paid to environmental pollution, which otherwise could have very deleterious effects on food production.108 The Secretariat also noted that as of 2007 China was formulating a food certification and accreditation system, including good agricultural practices (gap), organic products, food quality and Hazard Analysis Critical Con trol Point (haccp), and that China had established ‘a number of food
100 Ibid., p ix, paragraph 15, p. 43, paragraph 4. 101 Ibid., pp. 69–70, paragraphs 94–96. 102 Ibid., pp. 67–68, paragraphs 85–92. 103 Ibid., p. 67, paragraph 85. 104 Ibid., p. 69, paragraph 92. 105 Ibid., p. 65, paragraph 75. 106 Ibid., p. 65, paragraph 73. 107 Ibid., p. 65, paragraph 75. 108 Ibid., p. 65, paragraph 76.
109 Ibid., pp. 66–67, paragraph 76. The Secretariat Report does not list these institutions but instead refers merely to State Council Information Office, The Quality and Safety of Food in China (August 2007, Beijing). 110 Ibid., p. 69, paragraph 93. 111 Ibid., p. 69, paragraph 95. 112 Ibid., p. 69, paragraph 94. 113 Ibid., pp. 69–70, paragraphs 94–96. 114 Trade Policy Review Body Report, Trade Policy Review, China, Minutes of Meeting, WT/ TPR/M/199 (24 July 2008), p. 12, paragraph 55 [Brazil], p. 12, paragraph 62 [Switzerland], p. 23, paragraph 139 [Norway]. 115 Ibid., p. 15, paragraph 80. 116 Ibid., p. 18, paragraph 107. 117 Ibid., p. 21, paragraph 127.
Table 8.3 2008 Review of China’s trade policy: wto members asking questions about food safety and the subject matter of the questions (in order of page number in the tprb report)
Country asking Question number Page number in Subject matter the question or document tprb report
Mexico Add.2 180 Types of standards Mexico Add.2 180 Review of standards Mexico Add.2 181 Types of standards Mexico Add.2 181 Alignment Philippines 3(a), 3(b) 181 Imports of food containing tartrazine Philippines 4(a), 4(b), 4(c), 181 Ban on imports for fresh 4(d) coconuts India 1 133, 182 mou on application of sps India 2 133, 182 Import of fruit and vegetables India 3 133, 182 Import of rice India 4 133, 182 Import of meat and dairy products; Alignment India 6 133, 183 mou on application of sps India 7 133, 183 Quarantine procedure for imports Chinese Taipei 184 Update 2002–2006 list of standards Chinese Taipei 184 Catalogue of Entry-Exit Commodities Subject to Inspection and Quarantine Thailand 7 184 Alignment Thailand 8 185 Alignment Thailand 9 185 Existence of two different product certification systems Thailand 10 185 Labelling requirements usa 22(a), 22(b) 186 Types of standards usa 22(c) 186 Scientific basis of food safety standards; Alignment usa 23 187 Alignment usa 24(a) 187 Certification of animal feed usa 24(b), 24(c), Product registration 24(d)
Country asking Question number Page number in Subject matter the question or document tprb report usa 25 188 Transparency ec [now eu] 36 188 Transparency ec [now eu] 28 190 Participation of foreign enterprises in China’s standardisation activities; wto Code of Good Practice ec [now eu] 29 190 Alignment ec [now eu] 30 190 Types of standards ec[now eu] 31 191 Alignment ec [now eu] 32 191 Alignment ec [now eu] 33 191 Alignment ec [now eu] 34–35 191 Alignment ec [now eu] 37–38 192 Types of standards; Alignment ec [now eu] 192 Standards and ipr enforcement ec [now eu] 39–40 193 ccc [Compulsory Product Certification] system ec [now eu] 54 193 Administrative organisation and sps ec [now eu] 55 193 Import permit ec [now eu] 194 Transparency Canada 27 194 Alignment Canada 28 194 Revision of national standards Canada 30 194 Alignment Canada 34 195 Administrative organisation of standard setting Canada 36 195 Types of standards Canada 37 195 Types of standards; review period Canada 44 196 Food certification and accreditation system Australia 4(a), 4(b) 196 Alignment Australia 7 197 Alignment Australia 5(a), 5(b) 197 Administration organisation of sps regime; nt
Table 8.3 2008 review of China’s trade policy: wto members asking questions about food Safety and the subject matter of the questions (in order of page number in the tprb report) (cont.)
Country asking Question number Page number in Subject matter the question or document tprb report
Australia 6(a), 6(b), 6(c), 197 Transparency 6(d), 6(e), 6(f) usa 55 220 gis and administrative organisation Switzerland gis and administrative organisation Mexico 67 285 Alignment Mexico 71 286 Types of standards; transparency Mexico 73 286 ipr; enforcement of standards Mexico 74, 75, 76 287 Types of standards Mexico 77–82 287 ccc system Mexico 83 287 Enquiry point; transparency Korea 13 290 Types of standards; Alignment Argentina 294 Types of standards usa 27(a), 27(b) 297 Food labelling Philippines 1(a), 1(b), 1(c) 298 fsl Japan 8 299 Types of standards Japan 9 300 Types of standards Japan 10 300 fsl Japan 16 300 Export quotas on livestock Canada 1 299 Alignment Canada 31 Types of standards Canada 32 303 Transparency Canada 33 304 Transparency Canada 35 304 Types of standards ec [now eu] 49 312 ccc ec [now eu] 52 312 ccc; foreign-owned certifica- tion bodies ec [now eu] 53 313 ccc; foreign-based certifica- tion bodies ec [now eu] 56 313 Quarantine system
Country asking Question number Page number in Subject matter the question or document tprb report ec [now eu] 59 314 Labelling Argentina 336 gis and administrative organisation usa 336 gis and administrative organisation Japan 340 gis Japan 340 Protection of foreign gis Canada 342 gis and administrative organisation ec [now eu] 344 gis and administrative organisation ec[now eu] 345 gis Costa Rica 350 Safety of food imports Costa Rica 350 ccc ec [now eu] 13, WT/T/ Types of standards TPR/M/199/ Add.2
Source: Calculated by the author from Trade Policy Review Body Report.118
Table 8.4 shows the wto Members asking questions about food safety, the number of questions and their main concerns. Although no statistics were given on the total number of questions, the questions and the answers together totalled about 366 pages.119 Specific examples illustrate the interaction between the Member asking a question and the Chinese Representative providing an answer. For instance, in
118 Trade Policy Review Body, China, Minutes of Meeting, WT/TPR/M/19 (14 July 2008) Trade Policy Review Body, China, Minutes of the Meeting, Addendum, WT/TPR/M/Add.1 (28 August 2008); Trade Policy Review Body, Trade Policy Review, People’s Republic of China, Minutes of Meeting, Addendum 2, WT/TPR/M/161/Add.2 (11 September 2006). 119 Trade Policy Review Body, Trade Policy Review, China, Minutes Of Meeting Addendum, WT/TPR/M/199/Add.1, (28 August 2008); Trade Policy Review Body, China, Minutes Of Meeting Addendum, WT/TPR/M/199/Add.2 (13 April 2010).
Table 8.4 2008: China trade policy review: wto members asking questions about food safety, the number of questions and the main concerns wto member asking Number of Main concerns questions questions
Argentina 2 Types of standards; gis and administrative organisation Australia 4 Alignment Canada 13 Types of standard; alignment; transparency Chinese Taipei 2 Update list of standards; Catalogue of Entry-Exit Commodities Subject to Inspection and Quarantine Costa Rica 2 Safety of food imports; ccc ec [now eu] 22 Alignment; ccc India 6 Import of food Japan 6 Types of standards Korea 1 Types of standards; alignment Mexico 10 Types of standards Philippines 9 Imports of food Switzerland 1 gis and administrative organisation Thailand 4 Alignment usa 13 gis and administrative organisation; alignment TOTAL 14 countries 95
Source: Calculated by the author from Trade Policy Review Body Report.120 response to the us question about science-based decision-making, the Chinese Representative replied that:
China has taken the following steps to ensure [sic] and demonstrate that food safety standards are based on science and are appropriate:
120 Trade Policy Review Body, Trade Policy Review, China, Minutes of the Meeting, Addendum, WT/TPR/M/Add.2 (13 April 2010); Trade Policy Review Body, Trade Policy Review, China, Minutes of the Meeting, Addendum, WT/TPR/M/Add.1 (28 August 2008).
1. To actively adopt international standards, especially the cac standards. 2. Development of standards has been based on risk assessment. 3. The process of standards development is open, transparent and participatory. 4. Where there is deviation between Chinese technical regulations and international standards, we would notify wto as required. 5. To modify the standards in a timely manner according to the feed- back during implantation [sic] and the new development of inter- national standards.121
On alignment, the Chinese Representative noted that China planned to align 85% of its standards with international standards under the 11th Five-Year Development Plan (2006–2010).122 She also emphasised that China would dis- cuss sps issues with the us bilaterally but that, with regard to gis, ‘China did not see the inconvenience of the regulations’.123 In another instance, the ec asked about the definition of ‘foreign enterprise’, and in effect whether China’s rule that foreign enterprises could participate in sac Technical Committees as an observer was contrary to the wto principle of national treatment. Without answering the specific question about the definition, China confirmed that ‘[f] oreign enterprises are welcome to participate in China’s standardization activi- ties’.124 The Philippines requested further information about the main features of China’s forthcoming Food Safety Law, its compatibility with wto principles, its accessibility to the public and its availability in an official wto language (English, French, Spanish). China’s Representative replied, again in general terms, that ‘this food safety law aims to improve food safety of both domestic and imported food and it complies with China’s obligations under the wto, both on procedure and on substance’.125 As to comments about the complexity of China’s sps regulatory regime, the Chinese Representative replied, correctly in my view, that it was consistent with the sps Agreement. ‘As for administrative
121 Trade Policy Review Body, Trade Policy Review, China, Minutes Of Meeting Addendum, WT/TPR/M/199/Add.1 (28 August 2008) p. 187. 122 Trade Policy Review Body Report, Trade Policy Review, China, Minutes of Meeting, WT/ TPR/M/199 (24 July 2008), p. 26, paragraph 164. 123 Trade Policy Review Body, Trade Policy Review, China, Report by the Secretariat, revision, WT/TPR/S/199/Rev.1 (12 August 2008), p. 29, paragraph 185, p. 31, paragraph 185. 124 Trade Policy Review Body, Trade Policy Review, China, Minutes of the Meeting, Addendum, WT/TPR/M/199/Add.2 (13 April 2010) paragraph 190. 125 Trade Policy Review Body, Trade Policy Review, China, Minutes Of Meeting Addendum, WT/TPR/M/199/Add.1 (28 August 2008), p. 299.
The 2010 Trade Policy Review The 2010 China tpr provided the most extensive wto review thus far. It reflected China’s greater standing in the world economy and its increasing role as a leading trading partner. It also followed the melamine baby formula crisis, which was evoked indirectly in the Review. I consider first the reports by China and the Secretariat and then the discussion. Largely as a result of the melamine crisis, China in 2009 enacted its first Food Safety Law, which replaced the 1995 Food Hygiene Law and entered into force on 1 June 2009. In principle, under the Food Safety Law all food standards were mandatory, though reality was more complex: other national, professional and local standards could be either mandatory or voluntary,127 and enterprise standards applied only to the enterprise. The Secretariat Report noted that China’s trading partners had expressed concerns that the new Law was not notified to the sps Committee before being implemented.128 However, it also noted that China had strengthened its regime for testing of dairy products for domestic and foreign consumption.129 China notified numerous measures related to dairy products to the sps Committee.130 The notifications included China’s acceptance of the tbt Code of Good Practice.131 Altogether, China sub- mitted 7 sps notifications in 2008 and 90 in 2009 together with 184 tbt notifi- cations in 2008 and 199 in 2009;132 all of the sps notifications, but not all of the tbt notifications, concerned food safety. The wto Accession Protocol required China to liberalise the right to trade, so that within three years after accession, all enterprises in China, with some
126 Trade Policy Review Body, Trade Policy Review, China, Minutes Of Meeting Addendum, WT/TPR/M/199/Add.1 (28 August 2008) p. 197. 127 Trade Policy Review Body, Trade Policy Review, China: Report by the Secretariat, Revision, WT/TPR/S/230/Rev.1 (5 July 2010) pp. 35–36, paragraph 43, p viii, paragraph 14. 128 Ibid., p. 37, paragraph 49. Committee on Sanitary and Phytosanitary Measures, Summary of the Meeting of 28–29 October 2009, G/SPS/R/56 (28 January 2010) paragraph 179. 129 Trade Policy Review Body, Trade Policy Review, China: Report by the Secretariat, Revision, WT/TPR/S/230/Rev.1 (5 July 2010), p viii, paragraph 14. 130 Ibid., pp. 35–36, paragraph 43, p. 37, paragraph 50, p. 15, paragraph 22, pp. 116–118, Table aii.2. 131 Ibid., pp. 35–36, paragraph 43, p. 118. 132 Ibid., pp. 35–36, paragraph 43, p. 36, paragraph 44.
China has four types of standards: national, professional, local, and enter- prise standards. Within the national, professional, and local standards categories, there are voluntary and mandatory standards. In 2007 (the lat- est year for which data were available), around 14.5% of national stan- dards, 15% of professional standards [data for 2006, the latest year for which data were provided to the Secretariat], and 19% of local standards were mandatory. Voluntary standards, however, can become mandatory if they are referenced in mandatory conformity assessment procedures. Concerns were raised in the tbt Committee in cases where no advance notice was given regarding such changes.140
133 wto, Working Party Report, supra note 1808, p. 14, paragraphs 80, 82, 83(d), 84, 86, p. 68. See also wto/omc, Compilation of the Legal Instruments on China’s Accession to the World Trade Organization (Law Press China, Beijing, 2001). 134 On imports, see wto, China Accession Protocol, supra note 1809, Annex 2A1. On exports, see ibid., Annex 2A2. 135 Trade Policy Review Body, Trade Policy Review, China: Report by the Secretariat, Revision, WT/TPR/S/230/Rev.1 (5 July 2010), p. 46, paragraph 90. 136 Ibid., p. 46, paragraph 89. 137 Ibid., p. 73, paragraph 21. 138 Ibid., pp. 37–38, paragraphs 52, 53. 139 Ibid., p. 42, paragraph 73. 140 Ibid., pp. 35–36, paragraph 43, p viii, paragraph 14.
Following a January 2009 revision of procedures by sac, foreign-owned com- panies could participate as voting members in technical standards-setting committees as voting members, not merely as observers as was previously the case.141 It appears that this concerned only tbt standards, not sps standards, but the exact scope of the 2009 revision, particularly with regard to food stan- dards, which under the 2009 Food Safety Law are mandatory, is not clear from the report.142 In July 2009, China also revised its compulsory product certification sys- tem.143 Labelling requirements provided that labels must be in Chinese, except for products manufactured in China for export.144 The Patent Law was revised in light of the Convention on Biological Diversity to require patent applicants to disclose the direct and original source of genetic resources if the invention to be patented depended on these resources.145 However, at least as of 2010, the Patent Law did not require Access and Benefit Sharing (abs) or Prior Informed Consent (pic) for a patent application.146 China planned to enact a new law on gis in 2010. As of the date of the Review, however, gis were regulated by the State Trademark Office, aqsiq and the Ministry of Agriculture.147 Table 8.5 shows the registration of gis in China between 1994 and late 2009. Available data does not allow a strict comparison, but it indicates clearly an increase in the number of registered gis. China was a member of the Codex Alimentarius Commission, the leading international food standard-setting body, as well as the World Organisation for Animal Health (oie) and the International Plant Protection Convention
141 Ibid., p. 36, paragraph 46. 142 See ibid., p. 36, n.38 (The report refers to wto Documents: Committee on Technical Barriers to Trade, China’s Transitional Review Mechanism, G/TBT/W/326 (29 October 2009); Committee on Technical Barriers to Trade, Minutes of the Meeting of 5–6 November 2009, G/TBT/M/49 (22 December 2009)). 143 Ibid., p. 38, paragraph 55. See also 强制性产品认证管理规定 [Compulsory Product Certification Management Regulation] (issued by Circular No. 53 of aqsiq, 26 May 2009 and effective on 1 September 2009), available at http://www.gov.cn/flfg/2009-07/21/content _1369826.htm. 144 Trade Policy Review Body, Trade Policy Review, China: Report by the Secretariat, Revision, WT/TPR/S/230/Rev.1 (5 July 2010) p. 39, paragraph 60. 145 Ibid., p. 65, paragraph 160. 146 Trade Policy Review Body, Trade Policy Review, China, Record of the Meeting, Addendum, WT/TPR/M/230/Add.1 (22 February 2011), pp. 28, 29. On this problem, see also Snyder, Legal Pluralism, supra Chapter 2 note 7, pp. 410–413. 147 Trade Policy Review Body, Trade Policy Review, China: Report by the Secretariat, Revision, WT/TPR/S/230/Rev.1 (5 July 2010), p. 67, paragraphs 169–172.
Table 8.5 Registration of geographical indications (gis) in China 1994–2009
Time period State Trademark Office aqsiq Ministry of Agriculture
1994–2007 301 – – 2008–first half of 2009 321 – – 2005–end September – 932 – 2009 February 2008–end – – 185 October 2009
Source: Based on Trade Policy Review Body Report.148
(ippc), which performed similar functions with regard to animals and plants, respectively. In 2007 and 2008, China signed more than 60 bilateral or regional agreements on standards and sps measures with wto Members, including eu, Japan, and the United States.149 Setting an initially congratulatory tone to the meeting, the discussant, H.E. Mrs Marie-Claire Swärd Capra from Sweden, affirmed that China now has ‘a central, leading role to play in the wto’.150 She noted, however, that the stan- dards regime was very complex, especially regarding voluntary standards, and asked whether the Chinese Government intended to align its standards further with international standards.151 The point was echoed by Mexico, which also welcomed aqsiq’s new policy of allowing inspections at destination.152 Norway emphasised the same point and urged greater alignment, stating that ‘[c]ountry- only standards and related mandatory certification schemes seriously hamper
148 Ibid., p. 67, paragraphs 169–172. 149 Ibid., p. 38, paragraph 54. 150 Trade Policy Review Body, Trade Policy Review, China, Record of the Meeting, WT/ TPR/M/230 (29 June 2010), p. 8, paragraph 46. For example, see the Memorandum of Understanding between United States Food and Drug Administration and China’s Center for Food Safety Risk Assessment regarding cooperation to enhance activities of mutual interest, available at http://www.fda.gov/downloads/InternationalPrograms/ Agreements/MemorandaofUnderstanding/UCM384998.pdf, last accessed 16 February 2015. 151 Ibid., p. 10, paragraph 56. 152 Ibid., p. 35, paragraphs 249–250.
Table 8.6 2010 Review of China’s trade policy: wto members asking questions about food safety and subject matter of the questions (in order of page number in the tprb report)
Country asking Question number Page number in Subject matter the question among asker’s minutes of the questions meeting Add. 1
Brazil 11 9–10 Preferential rules of origin Brazil 12 10 Preferential rules of origin Brazil 13 10 Treatment of propolis as healthcare food Brazil 20 14 Parallel import policy Brazil 21 14 gis Brazil 22 14–15 Direct release system and standards Brazil 23 15 Translation of national standards into English Brazil 24 15 Measures on testing of dairy products Korea 1 23 ban on imports of modified milk powder from Korea
153 Ibid., p. 15, paragraph 91. 154 Ibid., p. 19, paragraph 125. 155 Ibid., p. 20, paragraph 126.
Country asking Question number Page number in Subject matter the question among asker’s minutes of the questions meeting Add. 1
Korea 2 28 Chinese Patent Law implementing cbd on obligation to disclose origin of genetic resources Korea Follow up to 1 28–29 Chinese Patent Law on abs and pic Korea Follow up to 2 29 gis and administrative organisation Pakistan 4 31–32 gis and administrative organisation Australia 17 46–47 Import licensing of certain dairy products Switzerland 51 59 Catalogue of Entry-Exit Commodities Subject to Inspection and Quarantine eu 10 69 Transparency and publication eu 11 69–70 Coordination of govern- mental bodies eu 59 86 Alignment eu 60 86 Alignment eu 61 87 Time for comment on proposed Chinese sps measures eu 62 87 Fulfilment of sps transpar- ency requirements eu 63 88 Imports of beef from eu Member States eu 64 88 Alignment eu 65 89 Alignment eu 66 89 Alignment eu 67 89–90 sps protocols and inspection procedures eu 148 120 Patent Law and genetic resources
Table 8.6 2010 Review of China’s trade policy: wto members asking questions about food safety and subject matter of the questions (in order of page number in the tprb report) (cont.)
Country asking Question number Page number in Subject matter the question among asker’s minutes of the questions meeting Add. 1 eu 160 124–125 trips and data protection for agrochemicals eu Follow up to 59, 153 Meaning of ‘advanced 60 overseas standards’ eu Follow up to 61 155–156 Comment on and transpar- ency of sps measures Egypt 163 Institutional framework for implementing sps measures Egypt 164 Meaning of ‘specialised supervision’ under 2009 fsl Egypt 164 Administrative organisation for implementing food safety measures Egypt 165 Role of private sector in ensuring food safety standards Turkey 176 gis and administrative organisation Malaysia 186 Administrative bodies for development of different types of standards Malaysia 187 Administrative authorities for mandatory certification usa 209–210 Ban on meat imports usa 210–211 State trading usa 214 Types of standards usa 215 2009 fsl and administra- tive organisation usa 215–216 Notification of and mea- sures under 2009 fsl usa 231 cbd and origin of genetic resources usa 232 gis
Country asking Question number Page number in Subject matter the question among asker’s minutes of the questions meeting Add. 1 usa 232 gis India 270 2009 fsl, including relation to international standards India 275 Import of fruit and veg- etables from India India 276 Import of buffalo meat from India India 276 Import of rice from India Japan 296 Quotas and licensing for agricultural exports Japan 21 302 gis and administrative organisation Canada 39 344 Alignment Canada 40 344 Meaning of “mandatory standard” Canada 41 344 Meaning of “mandatory standard” Canada 42 344 Meaning of “mandatory standard” Canada 43 345 Types of standards Canada 45 345 Alignment Canada 46 345 Alignment Canada 48 346 Import of beef Canada 49 346 Import of beef and oie recommendations Canada 50 347 Import of swine and international recommendations Canada 51 347 Import of plants and ippc standards Canada 52 347 Import of pork and international standards Canada 53 348 ccc Canada 54 348 ccc Canada 59 349 Accreditation of foreign cabs
Table 8.6 2010 Review of China’s trade policy: wto members asking questions about food safety and subject matter of the questions (in order of page number in the tprb report) (cont.)
Country asking Question number Page number in Subject matter the question among asker’s minutes of the questions meeting Add. 1
Canada 60 349 Accreditation of foreign cabs Canada 61 350 mras and accreditation of foreign cabs Canada 365 Patent Law and disclosure requirements on genetic resources Canada 126 366 Agricultural issues and administrative organisation Joint us/ 386 Catalogue of Exit-Entry Canada/Mexico Commodities Subject to Inspection and Quarantine New Zealand 388 gis and administrative organisation Peru 390 Types of standards Peru 391 Alignment Peru 391 Types of standards Peru 396 Rules of origin Peru 397 Rules of origin Peru 397 Rules of origin Mexico 409 aqsiq reform of exit-entry system Mexico 410 Export restrictions Mexico 411 Export restrictions Mexico 419 gis Mexico 419 gis Mexico 433 Compliance with exit sanitary requirements Mexico 433 Compliance with exit sanitary requirements Mexico 433 Compliance with exit sanitary requirements
Country asking Question number Page number in Subject matter the question among asker’s minutes of the questions meeting Add. 1
Mexico 433 Compliance with exit sanitary requirements Mexico 433 Import of meat products Mexico 434 Import and export licences Mexico 434 Import and export licences Mexico 434 Export licences Mexico 10 434 State trading of agricultural products Mexico 11 435 Export of poultry and administrative organisation Mexico 12 435 Verification of safety of agricultural products Mexico 13 435 Availability of food safety standards Mexico 14 435 Health requirements for exporting poultry Mexico 15 436 Catalogue of Entry-Exit Commodities Subject to Inspection and Quarantine Mexico 16 436 Catalogue of Entry-Exit Commodities Subject to Inspection and Quarantine Mexico 17 436 Catalogue of Entry-Exit Commodities Subject to Inspection and Quarantine Mexico 18 437 Quarantine measures for plants Mexico 19 437 aqsiq requirements for direct release system Mexico 20 437 Catalogue of Entry-Exit Commodities Subject to Inspection and Quarantine Mexico 21 437 Alignment Mexico 22 437 Equivalence
Table 8.6 2010 Review of China’s trade policy: wto members asking questions about food safety and subject matter of the questions (in order of page number in the tprb report) (cont.)
Country asking Question number Page number in Subject matter the question among asker’s minutes of the questions meeting Add. 1
Mexico 23 437 Approval of Chinese laboratories; Catalogue of Entry-Exit Commodities Subject to Inspection and Quarantine Mexico 24 438 Proof of pest-or disease-free status Mexico 25 438 Notification of sps measures Mexico 26 438 Pest prevention and control Mexico 27 439 Publication of new regulations Mexico 28 439 Administrative organisation of phytosanitary system Mexico 29 439 Phytosanitary risks on exports Mexico 30 439 Bilateral cooperation protocols Mexico 440 Import permits Mexico 31 440 Database of phytosanitary requirements for imports Mexico 32 440 Communication between central and local authorities Mexico 33 440 Quarantine treatment enterprises Mexico 34 440 Administrative organisation for quarantine certificates for imports and exports Ecuador 16 447 Transparency: Notification of 2009 fsl; publication of draft technical regulations and caps Argentina 488 Types of standards
Country asking Question number Page number in Subject matter the question among asker’s minutes of the questions meeting Add. 1
Argentina 490 2009 fsl and administra- tive organisation Argentina 491 ccc Costa Rica 508 Certification and accreditation
Source: Calculated by the author based on Trade Policy Review Body Report.156
Table 8.7 shows the wto Members asking questions about food safety, the number of questions and the main concerns in the 2010 China Trade Policy Review.A total of 20 countries asked a total of 123 questions about food safety matters. Complementing this quantitative data, specific examples allow us to appre- ciate the tpr discussions from a qualitative standpoint. The United States emphasised that China’s transition periods as a wto Member had expired. It urged the Chinese Government to accept the responsibility that went with its influence in international trade, and it commented that China’s earlier market liberalisation seemed to have slowed down.157 The us also remarked that China had ‘still not fully embraced international standards, science-based rulemak ing and advance notification, particularly with regard to sanitary and phytosani- tary measures’.158 It noted that the us and China would seek to make prog- ress through bilateral relations, notably the us-China Joint Commission on Commerce and Trade and the us-China Strategic and Economic Dialogue.159 Canada also encouraged China to adopt a more science-based approach to regu lation in the agriculture sector and with regard to product safety160 and to follow the tbt Code of Good Practice.161 However, Brazil considered that China had made progress in simplifying its sps regime and inspection procedures.162 Hong Kong also struck a positive
156 Ibid., p. 8, paragraph 46. 157 Ibid., pp. 26–27, paragraphs 173, 175, 176, 177. 158 Ibid., p. 28, paragraph 186. 159 Ibid., p. 28, paragraph 188. 160 Ibid., p. 33, paragraphs 230, 231. 161 Ibid., p. 33, paragraph 227. 162 Ibid., p. 12, paragraph 67.
Table 8.7 2010 China trade policy review: wto members asking questions and number of questions wto member Number of Main concerns asking questions (in questions alphabetical order) asked
Argentina 3 Types of standards, administrative organisation, certification Australia 1 Import licensing (dairy) Brazil 8 Preferential rules of origin Canada 19 Meaning of ‘mandatory standard’; alignment; import of food Costa Rica 1 Certification and accreditation Ecuador 1 Transparency: Notification of 2009 fsl; publication of draft technical regulations and caps Egypt 4 Implementing food safety measures European Union 15 Alignment India 4 Import of food Japan 2 Quotas and licensing for agricultural exports; gis and administrative organisation Korea 4 Chinese patent law Malaysia 2 Administrative bodies Mexico 40 Compliance with exit sanitary requirements; New Zealand 1 gis and administrative organisation Pakistan 1 gis and administrative organisation Peru 6 Rules of origin Switzerland 1 Catalogue of Entry-Exit Commodities Subject to Inspection and Quarantine Turkey 1 gis and administrative organisation usa 8 gis usa, Canada, 1 Catalogue of Exit-Entry Commodities Mexico jointly Subject to Inspection and Quarantine TOTAL 20 countries 123 questions
Source: Calculated by the author based on Trade Policy Review Body Report.163
163 Trade Policy Review Body, Trade Policy Review, China, Record of the Meeting, Addendum, WT/TPR/M/230/Add.1 (22 February 2011).
…as a general practice, China formulates and revised standards on the basis of relevant international standards, including the international standards at the final stage of formulation. Exceptions would only apply when those international standards are ineffective or inappropriate for China…[citing the justifications in the tbt Agreement, Article 2.4]. When adopting international standards, China gives priority to those fundamental standards and test method standards. By the end of 2009, the rate of adopting international standards and advanced foreign stan- dards in China reached 68%.165
Adoption of international standards remained important in the long term.166 From the Chinese perspective, however, which echoed the terminology of the Chinese Standardization Law Implementing Regulation,167 ‘international stan- dards’ meant both standards adopted by international standard-setting bodies such as the Codex Alimentarious Commission and advanced foreign standards, that is those set by wealthier, more industrialised and usually western countries. A number of specific questions focused on the Chinese Government’s reac- tion to the melamine crisis and on the new 2009 Food Safety Law. First, the eu asked why the Chinese Government did not notify the new Food Safety Law to the wto before implementing it.168 The Chinese Government Representative replied that:
The Food Safety Law is based on the previous Food Hygiene Law and there is no technical requirement that will have a major impact on interna- tional trade, therefore, China had not submitted a notification before the Law was passed. However, after the Food Safety Law entered into force, China timely submitted notifications on the 178 relevant food safety rules and standards based on the Law and provided time for comments by the members.169
164 Ibid., p. 22, paragraph 138. 165 Ibid., p. 56, paragraph 406. 166 Ibid., p. 57, paragaraph 407. 167 Ibid., (follow up to Question 59 and Question 60). 168 Ibid., p. 87 (Questions 61–62). 169 Ibid., p. 87 [italics in original].
The eu was not very satisfied with this reply,170 which was based on a very nar- row and indeed questionable interpretation of wto legal obligations. The us asked the same question and received the same reply.171 Second, Brazil asked which specific measures the Government had taken to strengthen testing of dairy products after the crisis.172 In fact, the State Council promulgated a Regulation on Supervision and Administration of Dairy Product Safety,173 issued a Notice on Strengthening Production Licensing of Dairy Products174 and enacted Rules on Supervision of Dairy Products Producing Enterprises on Their Implementation of Quality Safety Responsibilities.175 The Ministry of Health on 27 April 2010 ‘issued 66 new national standards on the safety of dairy products, which included 15 new standards for dairy products, 2 production rules and 49 standards for inspection methods’. aqsiq strength- ened inspection procedures, and other measures were taken.176 Third, Egypt asked about the meaning of ‘specific supervision’ of food safety and whether it was dealt with in the Food Safety Law.177 The Chinese Repre sentative briefly described ‘specialised supervision’ with regard to food safety regulation.178 The 2004 Decision of the State Council about Strengthening Food Safety had consolidated this system of institutional fragmentation (zhèngchū duōmén, 政出多门), and the 2009 Food Safety Law retained its essential fea- tures. The us asked whether it was correct that food safety regulation under the new Law involved 12 different ministries,179 to which the Chinese Govern ment Representative replied by describing briefly the ‘food safety regulatory
170 Ibid., p. 87 (follow up to Question 61). 171 Ibid., pp. 215–216 (Question 22(a); Answer (a–c)). 172 Ibid., p. 15 (Question 24). 173 乳制品安全监督管理条例 [Regulation on the Supervision and Administration of the Quality and Safety of Dairy Products] (promulgated by State Council Order No. 536, Oct. 9, 2008) CLI.2.109190 Chinalawinfo. 174 国家质量监督检验检疫总局关于加强乳制品生产许可工作的通知 [Notice on Strengthening Production Licensing of Dairy Products] (issued by aqsiq No. 757, Oct. 12, 2008), CLI.4.112933 Chinalawinfo. 175 乳制品生产企业落实质量安全主体责任监督检查规定 [Rules on Supervision of Dairy Products Producing Enterprises on Their Implementation of Quality Safety Responsibilities] (promulgated by aqsiq, Sep. 27, 2009), CLI.4.125957, Chinalawinfo. 176 Trade Policy Review Body, Trade Policy Review, China, Record of the Meeting, Addendum, WT/TPR/M/230/Add.1 (22 February 2011), pp. 15–16. 177 Ibid., pp. 163–164. 178 Ibid., pp. 164–165. 179 Ibid., p. 215 (Question 21).
We got a lot of other questions and we will try to answer all of those ques- tions. But I just want to raise one concern about this job, that is, even though my team is working very hard, we can hardly finish all the answers. It seems that the wto has language discrimination. We do not speak English [or Spanish or French], so normally we have to translate all the questions into Chinese and pass them to various agencies in the Government. They will try to prepare the answers to you and we have to translate them back into English. So it creates a big burden and we hope that you can have your understanding if there is a little bit delay. But we will try to make it.185
In conclusion, the Chairperson noted that the procedure by which Chinese voluntary standards could be made mandatory was not clear to many Members and that the alignment of national standards to international standards was
180 Ibid., p. 215 (Answer (a–b)). 181 Trade Policy Review Body, Trade Policy Review, China, Record of the Meeting, WT/ TPR/M/230 (29 June 2010) p. 38, paragraph 273. 182 Ibid., p. 30, paragraph 197. 183 Ibid., p. 59, paragraph 428. 184 Ibid., p. 61, paragraph 441. 185 Ibid., p. 64, paragraph 461.
‘less than half’.186 However, in reply to a question by the eu, the Chinese Government stated clearly that:
Overseas advanced standards refer to the national standards promulgated by countries with high economic development level, advanced technical level, high living standard and gdp per capita, and high standardization level and that have made great contribution to international standardiza- tion work, or the industrial standards promulgated by national industrial associations of these countries. They also include standards of regional orga- nizations which have relatively great influence on international standards or which have been adopted frequently by Chinese national standards.187
The Implementing Regulation of the Chinese Standardization Law allows the use of either international standards or advanced foreign standards.188
The 2012 Trade Policy Review The fifth China tpr, which took place on 12 and 14 June 2012, opened in an extremely unfavourable global economic climate, with China’s previous prodi- gious growth rate gradually slowing down.189 The Chinese Government report concentrated on the economic and trade environment, macroeconomic policy direction and trade and investment. It did not mention food safety directly. Indirectly, however, it highlighted several structural and institutional condi- tions for successful food safety regulation. First, it affirmed that ‘[t]he multilat- eral trading system is the cornerstone of China’s foreign economic and trade relations’.190 Second, it stated that ‘[r]ule of law is a fundamental principle for China to effectively govern the country’, meaning that ‘China needs to bring into being a comprehensive system of laws with Chinese characteristics so as to ensure that there are laws to abide by for the carrying on of state affairs and social life’.191 It noted that the State Council issued in October 2010 the Opinions
186 Ibid., p. 65, paragraph 472. 187 Trade Policy Review Body, Trade Policy Review, China, Record of the Meeting, Addendum, WT/TPR/M/230/Add.1 (22 February 2011), p. 153 (Follow up to Question 59 and Question 60). 188 中华人民共和国标准法实施条例 [Regulations for the Implementation of the Stan dardisation Law of the People’s Republic of China] (promulgated by Decree No. 53 of the St. Council, 6 April 1990, effective as of the date of promulgation) Article 4. 189 Trade Policy Review Body, Trade Policy Review, Report by China, WT/TPR/G/264 (8 May 2012), p. 5, paragraph 4, p. 6, paragraph 9. 190 Ibid., p. 5, paragraph 3. 191 Ibid., p. 13, paragraph 41.
192 Ibid., p. 14, paragraph 44. 193 Ibid., p. 29, paragraph 127. 194 Trade Policy Review Body, Trade Policy Review, China, Report by the Secretariat, revision, WT/TPR/S/264/Rev.1 (20 July 2012), p. 11, paragraphs 4, 5. 195 oecd, oecd Economic Surveys: China (Organisation for Economic Cooperation and Development, Paris, 2010), p. 220. 196 Trade Policy Review Body, Trade Policy Review, China, Report by the Secretariat, revision, WT/TPR/S/264/Rev.1 (20 July 2012), p. 13, paragraph 14. 197 oecd, oecd Territorial Reviews: Guangdong China (Organisation for Economic Cooperation and Development, Paris, 2010), p. 222. 198 Trade Policy Review Body, Trade Policy Review, China, Report by the Secretariat, revision, WT/TPR/S/264/Rev.1 (20 July 2012), p. 14, paragraph 17. 199 Trade Policy Review Body, Trade Policy Review, China, Report by the Secretariat, revision, WT/TPR/S/264/Rev.1 (20 July 2012), p. 14, paragraph 19.
Table 8.8 Evolution of Chinese standards, 2006–2010
Type of Standard 2006 2007 2008 2009 2010
National 1,889 1,385 5,911 3,121 2,796 of which: mandatory 276 157 594 283 493 of which: voluntary 1,613 1,228 5,317 2,838 2,303 Professional standards 2,178 3,029 3,087 1,428 3,015 of which: mandatory 335 245 216 255 183 of which: voluntary 1,843 2,784 2,871 1,173 2,832 Local standards 2,377 2,805 2,809 3,110 n/a of which: mandatory 220 277 300 252 n/a of which: voluntary 2,157 2,528 2,509 2,858 n/a
Source: Trade Policy Review Body Report,208 which is based on data provided by the Chinese authorities.
200 Trade Policy Review Body, Trade Policy Review, China, Report by the Secretariat, revision, WT/TPR/S/264/Rev.1 (20 July 2012), pp. 24–42, paragraphs 1, 44, 45. 201 Ibid., pp. 57–63, paragraphs 134, 148, 149, 152, 153. 202 Ibid., pp. 45–53, paragraphs 80–98. 203 Ibid., pp. 49–52, paragraphs 99–108. 204 Ibid., pp. 52–53, paragraphs 109–110. 205 Ibid., p. 93, paragraphs 308–311. 206 2009 Food Safety Law, supra note 384, Article 9 provides that ‘[t]he food safety standards are standards for mandatory execution. Except for food safety standards, no other manda- tory food standards shall be set down’. At least in English translation, this provision is not without ambiguity. 207 Trade Policy Review Body, Trade Policy Review, China, Report by the Secretariat, revision, WT/TPR/S/264/Rev.1 (20 July 2012), pp. 49–50, paragraph 99. 208 Ibid., p. 49, paragraph 91.
209 Ibid., pp. 50–51, paragraph 100. 210 Ibid., p. 51, paragraph 102. 211 Trade Policy Review Body, Trade Policy Review, China, Record of the Meeting, WT/ TPR/M/264 (17 July 2012), p. 3, paragraph 7. 212 Ibid., p. 10, paragraph 56. 213 Ibid., p. 60, paragraph 428. 214 Trade Policy Review Body, Trade Policy Review, China, Record of the Meeting. Addendum, WT/TPR/M/264/Add.1 (22 August 2012) p. 40. See also Trade Policy Review Body, Trade Policy Review, China, Report by the Secretariat, revision, WT/TPR/S/264/Rev.1 (20 July 2012), p. 51, paragraph 102 (According to the tpr procedure, the Secretariat prepares a report [original report] which is circulated for comments to the Member being reviewed, and after comments are received, the Secretariat prepares a revised report. Most refer- ences in the text are to the revised report.)
Table 8.9 2012 China trade policy review: wto members asking questions and subject matter of questions (in order of page number in the record of the meeting)
Country asking Question Page number Subject matter the question number among in tprb report asker’s questions
Argentina Add.1 23 11 Import/Certification Australia Add.1 8 21 Imports/Licensing Australia Add.1 12 22 Administrative organisation Australia Add.1 13 22 Alignment Australia Add.1 14 23 Alignment Australia Add.1 15 23 Imports Australia Add.1 17 23 Imports Australia Add.1 24 25 gis Australia Add.1 25 26 gis Brazil Add.1 39 Types of standards Brazil Add.1 39 Alignment Brazil Add.1 39 Transparency Brazil Add.1 1&2 48 Alignment Brazil Add.1 49 Certification Canada Add.1 32 69 Imports Canada Add.1 33 69 Imports Chile Add.1 4 106 gis Colombia Add.1 16 119 Imports Costa Rica Add.1 19 127 Imports Dominican Add.1 1&2 135 Imports Republic ec [now eu] Add.1 35 157 Certification (ccc [Compulsory Product Certification] system) ec [now eu] Add.1 36 157 Certification (ccc system) ec [now eu] Add.1 38 158 Certification (ccc system) ec [now eu] Add.1 39 159 Certification (ccc system) ec [now eu] Add.1 61 164 Imports ec [now eu] Add.1 62 165 Imports ec [now eu] Add.1 63 165 Alignment
Country asking Question Page number Subject matter the question number among in tprb report asker’s questions ec [now eu] Add.1 64 165 Alignment ec [now eu] Add.1 65 165 Imports ec [now eu] Add.1 66&67 167 Labelling Indonesia Add.1 8 215 Alignment Indonesia Add.1 9 219 Imports Indonesia Add.1 10 219 Imports Indonesia Add.1 11 219 Imports Indonesia Add.1 13 219 Imports Indonesia Add.1 14 219 Transparency Mexico Add.1 21–25 285 Imports Mexico Add.1 49 290 Types of standards New Zealand Add.1 4 296 Imports New Zealand Add.1 9 301 Imports New Zealand Add.1 10 302 Imports Peru Add.1 308 Alignment Peru Add.1 308 Imports Peru Add.1 309 Certification Singapore Add.1 312 Imports South Africa Add.1 8 317 Imports (soes) South Africa Add.1 9 318 Imports South Africa Add.1 10 318 Imports Switzerland Add.1 333 soes Switzerland Add.1 335 Exports Thailand Add.1 7 340 Subsidies Turkey Add.1 351 Imports United States Add.1 29 379 Administrative organisation United States Add.1 30 379 Additives United States Add.1 31 380 Transparency United States Add.1 32 381 Imports United States Add.1 33 381 Imports
Source: Calculated by the author based on Trade Policy Review Body Report.215
215 Ibid., p. 60, paragraph 428. Trade Policy Review Body, Trade Policy Review, China, Record of the Meeting, Addendum, WT/TPR/M/264/Add.1 (22 August 2012).
Table 8.10 2012 China trade policy review: wto members asking questions, number of questions and main concerns wto member asking Number of Main concerns questions questions
Argentina 1 Import/Certification Australia 8 Alignment; import; gis Brazil 5 Alignment Canada 2 Imports Chile 1 gis Colombia 1 Imports Costa Rica 1 Imports Dominican Republic 1 Imports eu 11 ccc Indonesia 6 Imports Mexico 2 Imports; Types of standards New Zealand 3 Imports Peru 3 Alignment; Imports; Certification Singapore 1 Imports South Africa 3 Imports Switzerland 2 soes; Exports Thailand 1 Subsidies Turkey 1 Imports usa 5 Imports TOTAL 19 Members 57 questions
Source: Calculated by the author based on Trade Policy Review Body Report.216
is mainly a campaign aimed at cracking down on illegal behaviours of producing food packaging and containers using poisonous and harmful materials, particularly waste materials. It is not legislation. If we intend
216 Trade Policy Review Body, Trade Policy Review, China, Record of the Meeting, WT/ TPR/M/264 (17 July 2012) p. 3, paragraph 7. Trade Policy Review Body, Trade Policy Review, China, Record of the Meeting, Addendum, WT/TPR/M/264/Add.1 (22 August 2012).
to modify the safety standards of food containers, packaging material or additives, we will notify the wto in accordance with relevant procedures.217
Hence the Circular did not fall within the scope of the Government’s notifica- tion obligation, as narrowly interpreted. Mexico asked a question concerning participation of consumer organisa- tions in the development of standards under the Food Safety Law.218 In reply, the Chinese Representative pointed out that the China Consumers Association had been invited to participate in drafting and to comment on the 12th Five Year Plan for National Standards on Food Safety.219 Turkey enquired about quarantine measures and assessment procedures for dairy products and poul- try.220 Both are sensitive products in international trade, especially dairy prod- ucts after the melamine scandal. The Chinese Representative provided a very detailed answer regarding relevant institutions, applicable administrative measures and procedures.221 Concerning standards, Australia asked what proportion of Chinese stan- dards were more restrictive than Codex standards and, if there is no domestic standard, whether China ‘could…consider’ adopting a Codex standard until a domestic standard was developed.222 The Chinese Representative, without really answering the question, replied that Chinese standards were ‘basically consistent’ with Codex standards, they were ‘not totally the same as cac [Codex Alimentarius Commission] but we have the scientific basis’ and ‘the Ministry of Health stipulates the Chinese national food safety standards based on the results of food safety risk evaluations, the residents’ different food consumption and diet structure and the actual production and operation conditions and with reference to the international standards’.223 Similarly, Brazil asked why China had not accepted proposed maximum residue limits (mrls) for ractopa- mine, which had been evaluated three times and recommended for approval by
217 Trade Policy Review Body, Trade Policy Review, China, Record of the Meeting. Addendum, WT/TPR/M/264/Add.1 (22 August 2012), p. 40. 218 Ibid., p. 290 (Question 49). 219 Ibid., p. 290. 220 Ibid., p. 351. 221 Ibid., pp. 351, 352. 222 Ibid., p. 22 (Question 13). See also Trade Policy Review Body, Trade Policy Review, China, Report by the Secretariat, revision, WT/TPR/S/264/Rev.1 (20 July 2012), p. 51, para- graph 101. 223 Trade Policy Review Body, Trade Policy Review, China, Record of the Meeting. Addendum, WT/TPR/M/264/Add.1 (22 August 2012) pp. 22, 23.
224 Ibid., p. 48 (Question 1). See also Trade Policy Review Body, Trade Policy Review, China, Report by the Secretariat, revision, WT/TPR/S/264/Rev.1 (20 July 2012), p. 46, paragraph 84. 225 Trade Policy Review Body, Trade Policy Review, China, Record of the Meeting. Addendum, WT/TPR/M/264/Add.1 (22 August 2012) p. 48 (Answer to Question 1 & 2). 226 Ibid., p. 48, paragraph vii. 227 Ibid., p. 48, paragraph vii. See also United States–Certain Measures Affecting Imports of Poultry from China, Panel Report, WT/DS/392R (29 September 2010) (adopted 25 October 2010). 228 Trade Policy Review Body, Trade Policy Review, China, Record of the Meeting. Addendum, WT/TPR/M/264/Add.1 (22 August 2012), p. 40, paragraph vii. 229 国家质量监督检验检疫总局关于公布《进口食品境外生产企业注册实施目录》 的公告 [Notice concerning Publish the ‘Implementation Catalogue for Registration of Overseas Manufacturers of Imported Food’] (promulgated by the aqsiq, 7 May 2012), available at http://www.aqsiq.gov.cn/xxgk_13386/jlgg_12538/zjgg/2012/201207/t20120713_238975.htm, last accessed 22 August 2012. 230 进口食品境外生产企业注册管理规定 [Administrative Measures for Registration of Overseas Manufacturers of Imported Food] (promulgated by the State Administration of Quality Supervision, Inspection and Quarantine, June 21, 2011, effective 1 May 2012), available
Currently, saic, aqsiq and moa are jointly studying how to establish the joint Geographical Indications certification system. The three agencies have different focuses in gi protection. The saic protects geographical indications by applying collective trademark and certification trademark registration pursuant to the Trademark Law. Corresponding remedies for geographical indication infringement include administrative, civil and criminal ones. The Ministry of Agriculture has registration administration for geographical indications of agricultural products based on administrative rules formulated in accordance with the Law on Quality Security of Agricultural Products. The focus of the protec- tion is on geographical indication resources of agricultural products, prod- uct quality and traditional farming culture. aqsiq’s protection of geographical indication focuses on processing, which is based on adminis- trative rules formulated in accordance with the Product Quality Law.235
With regard to the trademark register, the Chinese Representative noted:
Trademark Office shall compile the Trademark Gazette, and release to the public, on a regular basis, all the relevant information about trademark reg- istration, transfer, change and others, including geographical indications. The…[aqsiq] shall publish on its official website www.aqsiq.gov.cn the
at http://www.aqsiq.gov.cn/xxgk_13386/zvfg/flfg/201307/t20130705_365373.htm, last accessed 22 August 2012. 231 Trade Policy Review Body, Trade Policy Review, China, Record of the Meeting. Addendum, WT/TPR/M/264/Add.1 (22 August 2012) p. 40, paragraph vii. 232 Ibid., p. 40, paragraph3 35–60. 233 Ibid., p. 40, paragraph 39. 234 Ibid., p. 40, paragraph vii. See also Trade Policy Review Body, Report by the Secretariat, WT/TPR/S/300 (27 May 2014) paragraphs 308–11. 235 Trade Policy Review Body, Trade Policy Review, China, Record of the Meeting. Addendum, WT/TPR/M/264/Add.1 (22 August 2012), p. 40, paragraph 24.
Protection Provisions for Geographical Indication Products and other laws and regulations, and shall regularly publish the admissibility announce- ment and ratification announcement of geographical indication product protection, and the announcement of approving enterprises to use the geo- graphical indication product names and special marks. The above informa- tion is available for reference by foreign individuals or companies.236
As the China Representative explained, the legal basis for protecting gis was complex, including the ‘Trademark Law, Implementing Regulations of Trademark Law, Registration and Management Measures of Collective Marks and Certification Marks, Administrative Measures of Geographical Indications of Agricultural Products, Protection Regulations for Geographical Indication Products and other laws and regulations’. He considered that all were totally consistent with the wto trips Agreement.237 These answers indicated once again, however, the administrative and normative fragmentation of China’s food safety regime as it stood in 2012. Many Members reiterated specific previous concerns. The United States noted that China still had not completely adopted science-based decision mak- ing238 or international standards and needed to improve its notification of pro- posed sps measures.239 Brazil noted that some progress had been made regarding sps inspection and approval procedures.240 Canada remarked that China’s regulatory process was overly complex and that ccc system should be reformed consistently with international practice to accredit foreign conformity assessment bodies.241 Costa Rica raised questions about the ccc certificates and inspection and quarantine protocols.242 The eu was concerned about lack of transparency of legislation, divergence from international standards and overly complex conformity assessment and approval procedures.243 Australia urged China to adopt Codex standards for food safety and to provide sufficient resources for auditing overseas export establishments where required.244 Argentina announced that it had reached agreement with China regarding agri- culture, livestock, sps measures, agricultural biotechnology and bio-security.245
236 Ibid., p. 40, paragraph 26. 237 Ibid., p. 40, paragraph 26. 238 Ibid., p. 3, paragraph 69. 239 Ibid., p. 3, paragraph 70. 240 Ibid., p. 3, paragraph 108. 241 Ibid., p. 3, paragraph 181. 242 Ibid., p. 3, paragraph 193. 243 Ibid., p. 3, paragraphs 293–42. 244 Ibid., p. 3, paragraph 337. 245 Ibid., p. 3, paragraph 380.
A number of other Members also raised specific market access concerns of their own, most or all invoking regulatory measures concerning foodstuffs. Japan commented that certain technical standards were more trade-restrictive than necessary and requested that China relax import restrictions on Japanese food and agricultural products introduced after the Fukushima disaster.246 Norway complained about testing and quarantine measures on fresh chilled salmon.247 Mexico sought greater market access for tequila and pork,248 as did Uruguay for soybeans, bovine animals, premium beef cuts, dairy products and wines.249 China’s Representative affirmed that China was continuing to align its stan- dards, so that 68% of national standards had adopted international or advanced foreign standards by end 2011, ‘far above our wto commitment which is 50%’.250 He also remarked that ‘we believe it is unfair to say that China is developing its own standards and violates the tbt Agreement just because it does not follow the standards of some other Members in a few areas’.251 He emphasised China’s openness to further discussions and its support for more wto dialogues on international standards.252 With regard to notifications, he commented that China made the most sps and tbt notifications in the wto. Concerning criticisms of late notification, he remarked that
I looked into this and found that the main reason is our staff had different opinions on whether the technical regulations should be notified under the tbt Agreement. For instance, some general laws and regulations are considered to have no direct impact on trade, while some have adopted recommended standards or international standards. I think these are technical issues.253
Nonetheless, the eu voiced its surprise that China seemed to have no recent statistics on alignment.254
The 2014 Trade Policy Review The 5th wto review of China’s trade policy was held on 1 and 3 July 2014. The Chinese Government Report emphasised China’s continuing opening up and
246 Ibid., p. 3, paragraph 132. 247 Ibid., p. 3, paragraph 149. 248 Ibid., p. 3, paragraphs 275, 276, 470. 249 Ibid., p. 3, paragraph 304. 250 Ibid., p. 3, paragraph 402. 251 Ibid., p. 3, paragraph 403. 252 Ibid., p. 3, paragraph 405. 253 Ibid., p. 3, paragraph 407. 254 Ibid., p. 3, paragraph 435.
255 Trade Policy Review Body, Report by the Secretariat, WT/TPR/S/300 (27 May 2014) para- graphs 1.1, 1.2. 256 Ibid., paragraph 2.35. 257 Ibid., paragraph 1.3. 258 Ibid., paragraph 2.36. 259 See u.s. Foreign Agricultural Service, Global Agricultural Information Network (gain), People’s Republic of China, Food Safety Law Draft for Comment (Compared with the 2009 Food Safety Law), Global Agricultural Information Network Report No. 13064 (2013), http:// gain.fas.usda.gov/Recent%20GAIN%20Publications/Food%20Safety%20Law%20 Draft%20for%20Comment%20_Beijing_China%20-%20Peoples%20Republic%20of_11- 8-2013.pdf, last accessed 28 December 2014. 260 Ibid., 261 Trade Policy Review Body, Report by the Secretariat, WT/TPR/S/300 (27 May 2014) paragraph 6. 262 Ibid., paragraph 3.79. 263 Ibid., paragraph 3.79. 264 Ibid., paragraph 3.
Table 8.11 Laws and regulations related to China’s sps regime
Laws Promulgated / Amended
Law on the Entry and Exit Animal and Plant 30.10.1991/27.08.2009 Quarantine Regulations on Implementation of the Law on the 02.12.1996 Entry and Exit Animal and Plant Quarantine Law on Quality and Safety of Agricultural Products 29.04.2006 Animal Disease Prevention Law 03.07.1997/30.08.2007 Regulations on Plant Quarantine 03.01.1983/13.05.1992 Regulations on Control of Pesticides 08.05.1997/29.11.2001 Regulations on Control of Veterinary Drugs 21.05.1987/29.11.2001 and 09.04.2004 Regulations on the Administration of Feed and 29.05.1999/29.11.2001 and Feed Additives 03.11.2011 Law on Frontier Health and Quarantine. [no information] Law on Import and Export Commodity Inspection [no information] Food Safety Law 28.02.2009 Rules and Administrative Measures Source Measures for the Supervision and aqsiq Decree No.135 of 2011 Administration of Inspection and Quarantine of Import and Export Aquatic Products Measures for the Supervision and Administration aqsiq Decree No. 136 of 2011 of Inspection and Quarantine of Import and Export Meat Products Measures for the Prevention and Treatment of aqsiq Decree No. 139 of 2011 aids at Frontier Measures for the Supervision and Administration aqsiq Decree No. 143 of 2011 of Inspection and Quarantine of Import and Export Cosmetic Products Administrative Measures on the Safety of Import aqsiq Decree No. 144 of 2011 and Export Food Administrative Measures for Registration of aqsiq Decree No. 145 of 2012 Overseas Manufacturers of Imported Food Measures for the Supervision and Administration aqsiq Decree No. 152 of 2013 of Inspection and Quarantine of Import and Export Dairy Products
Source: Trade Policy Review Body, Report by the Secretariat, WT/TPR/S/300 (27 May 2014), p. 76, paragraph 3.77. Based on information provided by the Chinese authorities.
The Secretariat commented, however, that ‘some of these laws are outdated and repetitive’.265 The Report noted that Central Government trade-related laws and regula- tions were published on the website of the China Legislative Information System [Legislative Affairs Office of the State Council] (www.chinalaw.gov.cn), which since 2008 has also published all draft administrative regulations for public comment.266 In the ensuing discussion, however, several Members reit- erated the wto Secretariat’s remark about the difficulty of obtaining adequate information for the review.267 Many questions focused on transparency in standard-setting and implementation.268 For example, the eu noted that there was ‘much room for improvement’ with regard to transparency (lack of avail- ability or lack of translations), notifications and consistent implementation of legislation.269 Canada commented on ‘challenges’ posed by China’s regulatory process.270 Peru noted the need to improve frequency of notifications to the wto.271 Russia also requested clarification regarding sps measures.272 The us stated that ‘it has been our experience that many aspects of China’s trade and investment policies and practices seem to remain hidden away in unpublished measures, internal instructions, oral directives and confidential documents – or for some other reasons are simply unavailable’.273 It identified specific prob- lems as being China’s implementation of its wto commitments regarding translation, public comments on draft measures and publication in China’s offi- cial journal.274 The Secretariat also summarised China’s institutions for dealing with sps matters (see Table 8.12). In its view, the fragmentation of administrative responsibility might lead to lack of clear responsibility and lack of accountability.275 Only much later in the Report did the Secretariat note the major recent reform of China’s sps regulatory
265 Ibid., p. 76, paragraph 3.77. 266 Ibid., p. 76, paragraph 2.12. 267 Trade Policy Review Body, Trade Policy Review, China, Minutes of the Meeting, WT/ TPR/M/300 (26 August 2014) p. 23, paragraph 4.101, p. 24, paragraph 110, p. 33, paragraph 4.179. 268 Ibid., paragraph 3.12. 269 Ibid., paragraphs 4.101, 5.56–7. 270 Ibid., paragraph 4.177. 271 Ibid., paragraph 4.185. 272 Ibid., paragraph 5.49. 273 Ibid., paragraph 4.110. 274 Ibid., paragraph 5.78. 275 Ibid., paragraph 3.78, Table 3.8.
Table 8.12 Institutions in charge of the sps system in China
Institutions Responsibilities
Ministry of Health (moh) Responsible for food safety risk assess- ment and the formulation of food safety standards Ministry of Agriculture (moa) In charge of implementing entry and exist animal and plant quarantine General Administration of Quality In charge of national quality, entry-exit Supervision Inspection and Quarantine commodity inspection, entry-exit animal (aqsiq) and plant quarantine, import-export food safety, certification and accreditation State Administration for Industry and In charge of regulating product quality Commerce (saic) and safety in the market State Food and Drug Administration In charge of drafting laws, regulations and (sfda) rules to supervise food safety (including food additives), drugs (including tradi- tional Chinese medicines), medical devices and cosmetics
Source: Trade Policy Review Body, Trade Policy Review, China, Record of the Meeting, WT/TPR/M/264 (17 July 2012) p. 77, paragraph 3.78, Table 3.8. Based on information provided by the Chinese authorities.276 institutions, namely the creation of the China Food and Drug Administration (cfda),277 which is part of a gradual process of institutional consolidation and clarification of rules with regard to food safety. Strangely, however, the table did not reflect important institutional reforms already accomplished at the time, and mentioned below. Apparently unaware of major 2013 institutional reforms or of the draft new Food Safety Law then in circulation, several Members evoked China’s frag- mented regulatory system. Colombia referred to ‘[d]ifferent layers of regula- tion, making it difficult to unravel which sectoral policies are being applied’ and to ‘conflicting guidelines for policy implementation, reflecting different
276 Trade Policy Review Body, Trade Policy Review, China, Record of the Meeting, WT/TPR/M/264 (17 July 2012), p. 77, paragraph 3.78, Table 3.8. 277 Ibid., p. 77, paragraph 4.6, Table 4.2.
278 Trade Policy Review Body, Trade Policy Review, China, Minutes of the Meeting, WT/TPR/M/300 (26 August 2014), paragraph 4.162. 279 Ibid., p. 52, paragraph 4.381. 280 Ibid., p. 52, paragraph 4.382. 281 Ibid., p. 25, paragraph 4.117. 282 Ibid., p. 26, paragraph 4.118. 283 Ibid., p. 14, paragraph 4.28. 284 Ibid., p. 28, paragraph 4.138. 285 Ibid., p. 29, paragraph 4.154. 286 Ibid., p. 34, paragraph 4.194. 287 Ibid., p. 37, paragraph 4.224. 288 Ibid., pp. 57–58, paragraph 5.15.
[I]n practice, a few local customs may have different understandings of the regulations due to different levels of economic development and geo- graphical conditions…. Enforcement in pilot regions and non-pilot regions for the matter of customs clearance reform may also have tempo- rary differences.289
He undertook to improve the official Gazette and translation of measures according to China’s Accession Protocol.290 The Accession Protocol provides in Article 2(2) that ‘China shall establish or designate an official journal dedicated to the publication of all laws, regula- tions and other measures pertaining to or affecting trade in goods, services, trips or the control of foreign exchange…. China shall publish this journal on a regular basis and make copies of all issues of this journal readily available to individuals and enterprises’.291 China also committed itself to ‘make available to wto Members translations into one or more of the official languages of the wto all laws, regulations and other measures pertaining to or affecting trade in goods, services, trips or the control of forex, and to the maximum extent pos- sible would make these laws, regulations and other measures available before they were implemented or enforced, but in no case later than 90 days after they were implemented or enforced’.292 However, these obligations, which are part of ‘wto plus’, are virtually unworkable and unenforceable, except perhaps in the long term.293 Following the meeting, the Chinese Government provided replies to the written questions submitted before the meeting and to additional questions by wto Members; containing more than 1700 questions, the document was 456 single-spaced pages in length.294 Compared to the 2012 Trade Policy Review, more wto Members asked more questions about food safety. Table 8.13 shows the wto Members asking questions about food safety and the subject matter of the questions.
289 Ibid., p. 58, paragraph 5.22. 290 Ibid., p. 58, paragraph 5.16. 291 wto, China Accession Protocol, supra note 1809. 292 wto/omc, Compilation of the Legal Instruments on China’s Accession to the World Trade Organization, paragraph 334 (Law Press China, Beijing, 2001) See also World Trade Organization, Protocol on the Accession of China (Cambridge University Press, Cambridge, 2003), paragraph 342. See also wto, Protocol on the Accession of China art. 1(2) (Cambridge University Press,Cambridge, 2003). 293 Zhang Xin, Implementation, supra note 1. 294 Trade Policy Review Body, Trade Policy Review, China, Minutes of the Meeting, WT/TPR/M/300 (26 August 2014), p. 23, paragraph 4.101, p. 24, paragraph 110, p. 33, paragraph 4.179.
Table 8.13 2014 Review of China’s trade policy: wto members asking questions about food safety and subject matter of the questions (in order of page number in the tprb report)
Country asking Question number Page number in Subject matter the question among asker’s minutes of the questions meeting Add.1
Pakistan 3 Import licensing and restrictions Singapore 9 10 Domestic standards Singapore 10 10 ccc Argentina 12 23 tbt notification Argentina 13 23 ccc Argentina 14 24 sps regulation agencies New Zealand 7 34 National standards New Zealand 8 34 Fragmentation/ overlapping of regulators Iceland 38 Fish liver oil products Colombia 26 56 tbt measures Colombia 27 56 tbt measures Colombia 32 58, 59 Prices of corn, rice, bean and wheat Colombia 37 60 Test of plant variety Colombia 42 62 gis and trademarks Colombia 49 65 Test method of food additives Korea 79 Overseas inspection report & China Food Safety Act Chile 1 82 Approval system for inspection and quarantine of China Chinese Taipei 23 89 Voluntary standards & mandatory standards Chinese Taipei 24 89 Alignment Chinese Taipei 25 89, 90 Mandatory sectoral standards & mandatory local standards
Country asking Question number Page number in Subject matter the question among asker’s minutes of the questions meeting Add.1
Chinese Taipei 26 90 Format for technical regulation Chinese Taipei 27 90 Certification Japan 16 107 Domestic standards Japan 17 107 Fragmentation/ overlapping of regulators Japan 18 108 Marketing Authorisation Holder (mah) system & technical requirements Japan 19 109 tbt agreement Japan 22 110 tbt notifications Japan 25 111 Notification of manda- tory standards Mexico 135 Voluntary and manda- tory standards Turkey 144 sps requirements Turkey 145 sps requirements (product safety & commercial quality) Turkey 145 Commercial quality requirements Turkey 145 Alignment Turkey 145 Commercial quality control Turkey 145 Commercial quality control Turkey 145 Commercial quality control Turkey 145 Commercial quality control Norway 4 153 sps agreement (salmon) Norway 4 (additional) 154 Import licensing
Table 8.13 2014 Review of China’s trade policy: wto members asking questions about food safety and subject matter of the questions (in order of page number in the tprb report) (cont.)
Country asking Question number Page number in Subject matter the question among asker’s minutes of the questions meeting Add.1 eu 13 159 Standardisation system eu 15 160 Foreign testing agencies & ccc eu 16 160 tbt eu 17 161 Temporary prohibitions eu 18 161 sps agreement eu 20 162 Fragmentation of regulatory authorities eu 21 162 Fragmentation of regulatory authorities eu 22 162 Process of removing from black list eu 23 163 Prohibition on imports of animals and plants eu 24 163, 164 Notification of sps measures eu 40 169 gi protection systems United States 14(a) 195 Notification of sps United States 14(b) 195 Notification of sps United States 31 204, 205 Voluntary standards & mandatory standards United States 32 205 Fragmentation of regulatory authorities United States 61(a) 218 gis United States 61(b) 218 gis United States 70 222 Biotechnology products United States 71(a) 222, 223 Food recall system United States 71(b) 223 Food recall system United States 71(c) 223 Food recall system United States 71(d) 223 Food recall system United States Part ii 4(b) 234 Publicising cases United States Part ii 4(c) 234 Publicising cases
Country asking Question number Page number in Subject matter the question among asker’s minutes of the questions meeting Add.1
Canada 251 Technical committee (standards) Canada 251 Technical committee Canada 252 Information on new standards Canada 252, 253 National standard Canada 253 National standard Canada 253 National standard Canada 253 Compulsory standards Canada 253 Compulsory standards Canada 253 Compulsory standards Canada 253, 254 Local and industry standards Canada 254 Period of notification Canada 254 Mandatory certification bodies Canada 254 ccc Canada 255 Foreign conformity assessment bodies Canada 257 Regulatory agencies Canada 257 Food additives testing Costa Rica 12 285 gis Costa Rica 13 285 gis Indonesia 17 294 Institutions in the development of standards Indonesia 18 294 Standardisation institution and certification institution Indonesia 19 294 cqc certification Indonesia 20 294 ccc certification Indonesia 21 295 Licensing & ccc Indonesia 23 295 Testing results from foreign labs Indonesia 39 300 Requirement to register
Table 8.13 2014 Review of China’s trade policy: wto members asking questions about food safety and subject matter of the questions (in order of page number in the tprb report) (cont.)
Country asking Question number Page number in Subject matter the question among asker’s minutes of the questions meeting Add.1
Indonesia 40 300 Process of registration Indonesia 41 300 Process of registration Indonesia 13 305, 306 Quality certification Indonesia 14(additional) 306 Quality certification Indonesia 19(additional) 308 Testing results from foreign labs Indonesia 27(additional) 309 Percentage of cadmium permitted on mangosteen Indonesia 29 310 Import of bird nest Peru 6 313, 314 Technical regulations & mechanism for publica- tion of answers Peru 7 314 ccc Peru 8 314 Voluntary product certification Peru 9 314, 315 ccc India 6 320, 321 Private standards India 7 321 Private standards & tbt/sps India 8 321 Private standards India 9 321 Private standards India 10 321 Private standards & tbt/sps India 11 321, 322 Private standards & tbt/sps India 13 322 Industry/sectoral, local and enterprise standards India 14 322, 323 Enterprise standards India 15 323 Enterprise standards
Country asking Question number Page number in Subject matter the question among asker’s minutes of the questions meeting Add.1
India 16 323 Harmonisation of standards India 17 323 Standards & sps/tbt India 18 323 Mandatory & voluntary standards India 19 323 Standards on food India 20 324 Fragmentation of regulatory authorities India 21 325 tbt notifications Australia 338 Harmonisation of customs procedures Australia 341 Alignment of standards Australia 341 National standards Australia 341, 342 National, sectoral and local standards Australia 342 Development of standards Australia 342 Development of standards Australia 342 Local/provincial standards Australia 342, 343 ccc Australia 343 Conformity assessment Australia 343 Conformity assessment Australia 343 Conformity assessment Australia 343, 344 sps measures Australia 344 Reporting of sps measures Australia 348 gis Malaysia 71 376 Imports of beef Malaysia 96 382 gis Malaysia 97 382 gis Ecuador 1 399 Import/export Ecuador 6 400 Food safety standards
Table 8.13 2014 Review of China’s trade policy: wto members asking questions about food safety and subject matter of the questions (in order of page number in the tprb report) (cont.)
Country asking Question number Page number in Subject matter the question among asker’s minutes of the questions meeting Add.1
Myanmar 2 406 Fragmentation of regulatory authorities Myanmar 3 407 sps requirements & notification Trinidad and 409 Quality assurance Tobago standards eu 9 (Follow-up 15) 415 Foreign testing labs eu 10 (Follow-up 17) 416 Temporary prohibitions eu 11 (Follow-up 18) 417, 418 sps agreement eu 12 (Follow-up 13) 419 Standardisation system eu 14 (Follow-up 22) 420 Process of removing from black list eu 15 (Follow-up 23) 421 Imports of spirits eu 16 421 Imports of wines eu 27 (Follow-up 40) 427 gi protection systems Canada 449 ccc Canada 450 Foreign conformity assessment bodies
Source: Calculated by the author from World Trade Organization, Trade Policy Review Body Report.295
A total of 25 wto Members asked a total of 146 questions about food safety, accounting for about 8.5% of all questions (146/1700). Table 8.14 shows the wto Members asking questions about food safety, the number of questions asked by each of these Members and their main concerns. The most questions were asked by the eu (19), Canada (18), India (15), Australia (14), Indonesia (14) and the United States (13), the larger wto
295 Trade Policy Review Body, Minutes of the Meeting, Addendum, WT/TPR/M/300/Add.1 (9 September 2014).
Table 8.14 wto members asking questions about food safety, number of questions and main concerns in 2014 China trade policy review296 wto member asking Number of Main concerns questions questions
Argentina 3 sps/tbt Australia 14 Standards and Conformity assessment Canada 18 National standard Chile 1 Approval system for inspection and quarantine of China Chinese Taipei 5 Standards Costa Rica 2 gis Ecuador 2 Import restrictions and Food safety standards eu 19 Fragmentation of regulatory authorities Gobierno de Colombia 6 tbt measures Iceland 1 Fish liver oil products India 15 Private standards Indonesia 14 Standards and certifications Japan 6 Notifications Korea 1 Overseas inspection report & China Food Safety Act Malaysia 3 gis Mexico 1 Voluntary and mandatory standards Myanmar 2 sps and Fragmentation of regulatory authorities New Zealand 2 National standards, Fragment/overlapping of regulators Norway 2 sps agreement, Import licensing Pakistan 1 Import licensing and restrictions Peru 4 ccc Singapore 2 Domestic standards, ccc Trinidad and Tobago 1 Quality assurance standards Turkey 8 Commercial quality control United States 13 Notification of sps, Food recall system TOTAL 25 members TOTAL 146 questions
Source: Calculated by the author from World Trade Organization, Trade Policy Review Body Report.297
296 Ibid. 297 Ibid.
Members, who are among China’s most important trading partners. One should note that this group included two developing countries, India and Indonesia, as well as wto Members with a much higher per capita income. Fragmentation of regulatory authorities, standards and notifications contin- ued to be major concerns; a new theme was China’s food recall system, with reform now in progress; and several countries used the tpr to ask specific questions bearing on their exports.298 Administrative fragmentation of the food safety regime remained a con- stant theme, despite major Chinese institutional reforms undertaken so far. The Chinese Government has energetically and knowledgeably defended its system. For example, in response to a question by New Zealand, it pointed out correctly that
wto did not stipulate how many departments a member country should have to be responsible for measures on phytosanitation, many member countries, including the u.s., have multiple departments to be responsi- ble for sps measures, and measures of each department involve interna- tional trade…. So there is no problem of fragment / overlapping of regulators….299
Exactly the same reply was given to questions by Japan,300 the eu301 and the United States.302 Alignment also was a recurrent theme. China noted that 73.52% of its national standards were equivalent to international standards as of the end of 2013.303 Numerous questions concerned the Chinese system of standards. In a par- ticularly interesting but confusing exchange, Turkey asked whether China’s sps measures included both product safety and product quality.304 The Chinese Government indicated that China’s sps measures are ‘generally…compelling [legally binding] technical regulations and standard[s]. […A]ccording to the
298 Ibid., p. 38 (Iceland: fish liver oil products), pp. 153–154 (Norway: salmon), 309 (Indonesia: mangosteen), p. 310 (Indonesia: bird nest), p. 376 (Brazil: beef), p. 417 (eu: beef), p. 418 (eu: pork), p. 421 (eu: wine). 299 Ibid., p. 34 (Q&A 8). 300 Ibid., p. 107 (Q&A 17). 301 Ibid., p. 162 (Q&A 21). 302 Ibid., p. 205 (Q&A 32). 303 Ibid., p. 89 (Q&A 24), 341 (Q&A 3.68). 304 Ibid., p. 144 (Q&A 3.1.9).
Food Safety Act, Article 20, food safety standard[s] should also cover the qual- ity requirements related to food safety’.305 The 2009 Act ‘stipulate[s] that qual- ity requirements related to food safety [are] included in the food safety standard and are mandatory standards[, while] quality requirements with less connection to the food safety such as the product specification, uniformity, taste have appeared in the form of recommended standards’.306 Apparently taking both mandatory and recommended measures together, the Chinese Government replied that ‘[m]ost of them are based on international standards, some of them are national, and some of them are local’.307 This exchange reveals a certain lack of communication, due partly to the rigid written ques- tion format of the tpr, and partly to the lack of a shared terminology, despite the apparent umbrella of agreed terminology in the wto Agreements. India, noting the growing influence of the private sector, asked about the existence of private standards, how they were disciplined, and in which sectors they were used.308 The Chinese Government reply identified the four types of standards and simply requested India to ‘give the definition of private stan- dard’.309 The increasing role of private standards in China, the relation to enterprise standards (for example made by State-Owned Enterprises (soes)) and the application of wto obligations to enterprise standards and private standards clearly deserves further enquiry. Another issue regarding China’s standards system concerns diversity among local standards. Australia asked about possible inconsistency and suggested that it would be ‘[p]erhaps worthwhile to establish a whole-of-government approach to transparency and stakeholder input that would be applicable to all Ministries involved in standards/regulatory development’.310 The Chinese Government noted that
China has a vast territory and great differences exist among different prov- inces in geographic environment, culture and custom, but the mandatory local standards developed by different provinces comply with wto rules…. In practice the mandatory local standards may vary in certain cri- teria but local standards shall not be in conflict with related laws, admin- istrative regulations, and standards of a higher level [where they exist: fs]
305 Ibid., p. 145. 306 Ibid., p. 145. 307 Ibid., p. 145. 308 Ibid., pp. 320–321 (Q&As 6, 8, 9). 309 Ibid., p. 321 (Q&As 6, 9). 310 Ibid., p. 342 (Q&A 3.68).
and should not adversely affect trade. Meanwhile, the Administrative Regulation on Local Standards stipulates that in case a filed local standard breaches relevant laws and regulations, the standardization authority of the State Council together with related administrative authorities will require the local government to take corrective actions with a limited time or stop implementation of the standard.311
This candid and revealing reply highlights clearly the effect of geography, culture and demography on standards within China, indicates the complexity of the Chinese standards system, and invites further research to understand better the elaboration, implementation and effects of different types of standards in China. With regard to notification, in reply to a question by Japan, the Chinese Government pointed out that a draft national standard, regardless of its effect on trade, did not need to be notified to the wto if it was equivalent to an inter- national standard.312 The discussion concerned ‘mandatory national stan- dards’, which in wto terminology are technical regulations. However, the tbt Agreement provides that, if international standards exist, wto Members ‘shall use them…as a basis’ for their technical regulations, with specified exceptions, if the domestic law or regulation has ‘a significant effect on trade’.313 Whether ‘equivalent’ is the same as ‘based on’ is a nice question of legal interpreta- tion.314 The United States also raised questions about notification of food stan- dards, pesticide maximum residue tolerances and other measures.315 In reply, the Chinese Government provided a detailed list of measures, while offering its interpretation of the wto notification requirements by stating that
China has notified relevant measures in strict accordance with tbt/sps agreements. As of June 2014, China already notified to the wto 1,200 tbt measures and 832 sps measures. Some of [sic] measures that were not timely notified by China are in line with international standards, some slightly influence trade and others are attributed to translations of differ- ent versions or name changes to laws and regulations.316
311 Ibid., p. 342 (Q&A 3.68). 312 Ibid., p. 111 (Q&A 25). 313 Agreement on Technical Barriers to Trade, 12 April 1979, 1186 u.n.t.s. 276, gatt, b.i.s.d., 26th Supp. 8 (1980), Articles. 2.4, 2.5, 2.9. 314 See generally ec – Hormones, ab Report, supra Chapter 4 note 14, paragraphs 160–166. 315 Trade Policy Review Body, Minutes of the Meeting, Addendum, WT/TPR/M/300/Add.1 (9 September 2014). 316 Ibid., p. 195 (Q&A 14).
A related question, also by the United States, concerned China’s apparently fre- quent practice of ‘citing voluntary standards in technical regulations, thereby in effect turning these voluntary standards into mandatory standards’, but generally not notifying these voluntary standards to the wto for review and comment.317 The Chinese Government replied that China had ‘been actively performing its obligation of transparent notification and will further do a good job in tbt/sps notification’.318 This exchange raises specific legal issues with broader economic implications, both of which have undoubtedly been addressed already in the domestic law of China’s trading partners, and which merit further attention.
Discussion
tprm as an Institution The tprm deals with the institutional and normative parameters of food safety which are related directly or indirectly to trade. Following the wto mandate, it does not deal directly with unintentional (e.g. microbial) or intentional threats to food safety, unless they are evoked in conjunction with domestic legislation, international standards or risk assessment in the context of international trade. Nevertheless, its mandate is extremely wide and concerns many aspects of domestic food safety regimes, as indicated by the titles of the wto press releases for the China reviews.319 The tprm is not a negotiating forum. Nor is the tprb a mediator, an arbitra- tor or a court. The tprm combines power and interests in a heady mixture of diplomacy, power politics and more diplomacy, in which carefully phrased questions and equally carefully phrased answers convey much information and part of reality, often using legal code words or subtle legal interpretations. Nevertheless, the scope, depth, continuity and sometimes intensity of the questions indicate the importance given to the tprm by all participating wto Members. It furnishes a way of periodically seeking information, airing griev- ances, advancing criticisms, putting pressure on the country being reviewed and revisiting familiar themes, which usually, if not always, are of considerable economic interest to the Member asking the question.
317 Ibid., p. 204 (Q&A 31). 318 Ibid., p. 205 (Q&A 31). 319 Economic reform has produced impressive results but important challenges remain, World Trade Organization, Trade Policy Review: China, http://www.wto.org/english/tratop_e/ tpr_e/tp262_e.htm (last accessed 28 December 2014). See also World Trade Organization, Restructuring and further trade liberalization are keys to sustaining growth, available at http://www.wto.org/english/tratop_e/tpr_e/tp330_e.htm (last accessed 28 December 2014).
Questions and Questioners Questioners and questions in reviews of China’s trade policy, including food safety, evolved over time. However, they also demonstrated considerable con- tinuity (see Table 8.15), which is not surprising if we consider that a small num- ber of countries, including China, dominate world trade. Numbers for questions asked are based on the tprb listing of questions; a single question may occa- sionally contain several more specific questions, so the numbers are best understood as indicators of magnitude.
Table 8.15 Evolution of questions about food safety in reviews of China’s trade policy, 2006–2014
Year of Total Number of Number of Members asking Main concerns tprm questions members questions the most questions asking about food questions safety about food safety
2006 >1,100 11 35 us 8, eu 8, Australia 7, Domestic standards, South Africa 4 labelling 2008 >900 14 95 eu 22, us 13, Canada Domestic standards, 13, Mexico 10 alignment, imports 2010 1,508 20 123 Mexico 40, Canada 19, Alignment, administra- eu 15, us 8, Brazil 8 tive organization, imports, gis 2012 >1,700 19 57 eu 11, Australia 8, Imports, alignment Indonesia 6, us 5, Brazil 5 2014 1,700 25 146 eu 19, Canada 18, Standards, administra- India 15, Australia 14, tive organization, Indonesia 14, us 13 notification
Source: Calculated by the author from wto Reports.320
320 Trade Policy Review Body, Trade Policy Review, China, Report by the Secretariat, revision, WT/TPR/S/264/Rev.1 (20 July 2012); Trade Policy Review Body, Trade Policy Review, People’s Republic of China, Report by the Secretariat, WT/TPR/S/161 (28 February 2006); Trade Policy Review Body, Trade Policy Review, People’s Republic of China, Minutes of Meeting, Addendum 2, WT/TPR/M/161/Add.2 (11 September 2006); Trade Policy Review Body, Trade Policy Review, China, Report by the Secretariat, revision, WT/TPR/S/199/Rev.1
The total number of questions, including but not limited to food safety, began with approximately 1,100 questions in 2006 and rose to about 1,700 questions in 2014. Questions concerning food safety fluctuated, with a high point in 2010 following the melamine scandal and the enactment of China’s first Food Safety Law in 2009. In 2006, 11 countries asked a total of 35 ques- tions (see Table 2). Food safety in the broad sense accounted for about 3% of total questions (35 of 1100). China’s major trading partners among developed countries asked almost 60% of the questions: usa 8, eu 8, Australia 7, fol- lowed by South Africa 4. The main concerns were China’s domestic standards and gis. In principle, wto law provided a foundation for the questions. For example, the wto Agreement on Trade-Related Aspects of Intellectual Property Rights (trips) provides for the protection of gis, which it defines as ‘indications which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, repu- tation or other characteristic of the good is essentially attributable to its geo- graphical origin’.321 wto Members, including China, are required to provide legal means to allow interested parties to prevent misleading use of or unfair competition involving gis.322 Registration of a trademark could be refused on these grounds.323
(12 August 2008) Trade Policy Review Body Report, Trade Policy Review, China, Minutes of Meeting, WT/TPR/M/199 (24 July 2008); Trade Policy Review Body, Trade Policy Review, China: Report by the Secretariat, Revision, WT/TPR/S/230/Rev.1 (5 July 2010); Trade Policy Review Body, Trade Policy Review, China: Report by the Secretariat, Revision, WT/ TPR/S/230/Rev.1 (5 July 2010); Trade Policy Review Body, Trade Policy Review, China, Record of the Meeting, Addendum, WT/TPR/M/230/Add.1 (22 February 2011), Trade Policy Review Body, Trade Policy Review, China, Record of the Meeting, WT/TPR/M/264 (17 July 2012); Trade Policy Review Body, Trade Policy Review, China, Record of the Meeting. Addendum, WT/TPR/M/264/Add.1 (22 August 2012); Trade Policy Review Body, Report by the Secretariat, WT/TPR/S/300 (27 May 2014); Trade Policy Review Body, Trade Policy Review, People’s Republic of China, Minutes of Meeting, WT/TPR/M/161 (19 and 21 April 2006); Trade Policy Body, Trade Policy Review, Report by China, WT/ TPR/G/230 (26 April 2010), except the figure of >900 for Total Questions in 2008 is from Rongzhen Yang, ‘Research of China’s Participation in the wto Trade Policy Review Process’, Indiana University. rccpb, Working Paper No. 8, 2011. 321 wto Agreement on Trade-Related Aspects of Intellectual Property Rights (trips Agreement), Article 22(1), in World Trade Organization The Legal Texts: The Results of The Uruguay Round of Multilateral Trade Negotiations (Cambridge University Press, Cambridge, 1999) p. 329. 322 Ibid., Article 22(2). 323 Ibid., Article 22(3).
In 2008, questioners increased slightly and questions about food safety mat- ters almost tripled as 14 countries asked a total of 95 questions With one important exception, most questions were asked by China’s major trading partners among developed countries: ec [now eu] 22, usa 13 and Canada 13 asked more than 50% of questions. However, Mexico, for whom China is the most important market outside nafta, asked more than 10% of questions (10); this was the first time that a developing country joined the ranks of major questioners. Note that the ec in 2008 comprised 27 countries, each of which is separately a wto Member. In voting, ec votes are equal to the number of ec Member States. However the ec usually replaces the ec Member States in wto meetings; in the table the ec is counted as one unit. In 2010, compared to 2006, the number of questions about food safety tri- pled from 35 to 123. Those who asked questions were again among China’s main trading partners, with the addition of Mexico. Mexico asked the most questions (40) and indeed almost one-third of the questions (40 of 123), mainly about market access. It also joined with the other nafta countries, the us and Canada, in asking a joint question. Among major developed countries, Canada led with 19, followed closely by the eu with 15, whereas the usa tied with Brazil with 8 questions. Their main preoccupations were the types of technical regu- lations and standards used in China, alignment, transparency of China’s sps measures, the multiplicity or fragmentation of administrative authorities deal- ing with food safety regulation, the 2009 Food Safety Law, geographical indica- tions, and import measures and export measures. In 2012, compared to 2010, there was a decline in the use of the Review to gather information from the Chinese Government. Approximately the same number of wto Members asked questions as in 2010 (2010: 20, 2012: 19), though there was a slight change in the identity of the specific Members asking ques- tions. However, it is striking that there was a considerable decrease in the num- ber of questions (2010: 123, 2012: 57). The decline in the number of questions is mainly due to the fact that two members of nafta, Canada and particularly Mexico, asked far fewer questions in 2012 than in 2010 (Canada 2 in 2012 as compared to 19 in 2010, Mexico 2 in 2012 as compared to 40 in 2010). Three years after the enactment of the 2009 Food Safety Law, the Chinese regulatory sys- tem and the Chinese Government’s position were well-known to most, if not all, wto Members, notably regarding import and export, administrative organization, types of standards, alignment and gis. Larger Members contin- ued to persuade China to make reforms. Some Members, such as the eu, con- tinued to seek more details about Chinese policies. Others, such as the us, were more involved in seeking solutions to outstanding issues by means of its bilateral relations with China. Members such as Mexico and others were
Subject Matter Table 8.16 indicates the evolution of main subjects of questions in the reviews from 2006 to 2012. Questions came principally from China’s main trading partners, whether developed country trading partners (us, eu, Canada, Australia) or the leading brics (South Africa, Mexico, Brazil). In the early years, wto Members sought basic facts about how the Chinese food safety system functioned, though some, for example the us or the eu, asked precise questions based their companies’ specific experiences of access to the Chinese market. Later, the questions fre- quently became more wide-ranging. From 2006 to 2012, the most frequent topics of questions have been alignment (39 questions), types of standards (24), admin- istrative organisation (25), transparency (16), ccc (14), imports (59), gis (31) and dairy products (5). In 2014 the types, diversity and application of standards assumed great importance, and questions regarding alignment declined, prob- ably because the Chinese Government had clearly defined its policy and legal position. Transparency and certification remained important, while the recall system, now in reform, attracted special interest for the first time. The main factors leading to these changes would appear to be an increase in knowledge due to changes in questioners, for example, increased participation by develop- ing countries led to more questions about import, increased knowledge due to
324 Trade Policy Review Body, Trade Policy Review, China, Minutes of the Meeting, WT/ TPR/M/300 (26 August 2014), pp. 59–60, paragraphs 5.32–5.36. 325 Ibid., p. 59, paragraph 5.30. 326 Ibid., p. 56, paragraph 5.2, p. 2, paragraph 1.3. 327 Ibid., p. 59, paragraph 5.30.
Table 8.16 Main subjects of questions in reviews of China’s trade policy, 2006–2014
Subject Matter 2006 2008 2010 2012 2014 Total
Types of standards 0 16 6 2 50 74 Alignment 2 19 10 8 3 42 Administrative 0 9 14 2 8 33 organisation Transparency 1 8 4 3 10 26 ccc 1 6 3 4 17 31 Imports 2 8 21 28 13 72 gis 9 9 10 3 10 41
Source: Calculated by the author from wto Reports.328 previous reviews, and food crisis and law reform, for example, the melamine crisis and enactment of the 2009 Food Law. Throughout the period, each Member asked questions from its own perspective and interests. Reflecting the rapid development of China’s role in world trade, the Secretariat Reports, Chinese Government Reports
328 Trade Policy Review Body, Trade Policy Review, China, Report by the Secretariat, revision, WT/TPR/S/264/Rev.1 (20 July 2012); Trade Policy Review Body, Trade Policy Review, People’s Republic of China, Report by the Secretariat, WT/TPR/S/161 (28 February 2006); Trade Policy Review Body, Trade Policy Review, People’s Republic of China, Minutes of Meeting, Addendum 2, WT/TPR/M/161/Add.2 (11 September 2006); Trade Policy Review Body, Trade Policy Review, China, Report by the Secretariat, revision, WT/TPR/S/199/Rev.1 (12 August 2008) Trade Policy Review Body Report, Trade Policy Review, China, Minutes of Meeting, WT/TPR/M/199 (24 July 2008); Trade Policy Review Body, Trade Policy Review, China: Report by the Secretariat, Revision, WT/TPR/S/230/Rev.1 (5 July 2010); Trade Policy Review Body, Trade Policy Review, China: Report by the Secretariat, Revision, WT/ TPR/S/230/Rev.1 (5 July 2010); Trade Policy Review Body, Trade Policy Review, China, Record of the Meeting, Addendum, WT/TPR/M/230/Add.1 (22 February 2011), Trade Policy Review Body, Trade Policy Review, China, Record of the Meeting, WT/TPR/M/264 (17 July 2012); Trade Policy Review Body, Trade Policy Review, China, Record of the Meeting. Addendum, WT/TPR/M/264/Add.1 (22 August 2012); Trade Policy Review Body, Report by the Secretariat, WT/TPR/S/300 (27 May 2014); Trade Policy Review Body, Trade Policy Review, People’s Republic of China, Minutes of Meeting, WT/TPR/M/161 (19 and 21 April 2006) Trade Policy Body, Trade Policy Review, Report by China, WT/TPR/G/230 (26 April 2010) except the figure of >900 for Total Questions in 2008 is from Rongzhen Yang, ‘Research of China’s Participation in the WTO Trade Policy Review Process’, Ind. Univ. rccpb, Working Paper No. 8, 2011 (hereafter Yang, ‘Participation’).
329 Marc Galanter, ‘Why the “Haves” Come out Ahead: Speculations on the Limits of Legal Change’, Law & Society Review, 9 1974, pp. 95, 123. 330 Yang, ‘Participation’, supra note 328, p. 15.
Conclusion
China has made tremendous strides since the 1995 Food Hygiene Law in improving its system of food safety regulation, including the revised Food Law recently adopted by the National People’s Congress. Institutional reforms are still continuing. For example, in 2013 the China Food and Drug Administration (cfda) replaced the sfda; and the National Health and Family Planning Commission (nhfpc) became responsible for evaluation food safety, through the National Centre for Food Safety Risk Assessment (ncfsra) and for formu- lating food safety standars. For wto Members, including China, the tprm represents an invaluable process of mutual learning. It enables wto Members to garner much more information about other Members’ trade policy and practices than it might obtain in other ways, even though the Member whose trade policy is being reviewed may couch its replies in terms of standardised responses, give very short answers, simply refer to already published legislation, other documents or websites, or otherwise avoid answering a question directly. The tprm can spread best practices, contribute to alignment on the basis of international norms, put pressure on Members to address specific problems in national sys- tems of food safety regulation and create the preconditions for regulating food safety in a more coherent, more effective way. It does not create legal rights or obligations. A reply to a question in the tpr cannot in itself be the subject of wto dispute settlement procedures, even though the tprb, exercising a ‘cre- ative function’, may make ‘implicit judgments, however weak, that the country has or has not complied with [wto] rules’,331 and even though an empirical study of the trade policy reviews of Canada, the us and Mexico found that ‘the tprm is a good predictor of member sentiment, in the sense that issues that dominate tprs tend also to be challenged at the dsm [wto Dispute Settlement Mechanism]’.332 Within the wto framework, the tprm is therefore a relatively risk-free forum, despite the assumed interest of Members in controlling the type and amount of information which they provide. It can, should and does serve as a
331 Mavroidis, ‘Surveillance’, supra note 43. 332 Marc D. Froese, ‘Trade Policy Review and Dispute Settlement at the wto’, in Handbook of the International Political Economy of Trade (David A. Deese ed., 2014), p. 369. See also Julien Chaisse & Debashis Chakraborty, ‘Implementing wto Rules through Negotiations and Sanctions: The Role of Trade Policy Review Mechanism and Dispute Settlement System’, University of Pennsylvania Journal of International Economic Law, 28, 2007, 153.
333 Francis Snyder, ‘The Effectiveness of European Community Law: Institutions, Processes, Tools and Techniques’, Modern Law Review, 56, 1993, 19–56 at, 26. 334 Ibid., at 36. 335 Compare with Jonathan Spence, To Change China: Western Advisor in China (Penguin Books, London, 1980) (giving numerous examples in which Chinese did not consent to, did not cooperate in or resisted changes suggested, encouraged or enforced by outsiders). 336 Michael Daly, ‘Evolution of Asia’s Outward-Looking Economic Policies: Some Lessons from Trade Policy Reviews’, wto, Economic Research and Statistics Division, Working Paper ersc-2011-12, 2011, p. 50 http://www.wto.org/english/res_e/reser_e/ersd201112_e.pdf. 337 Raymond Valdés, ‘Lessons from the First Two Decades of Trade Policy Reviews in the Americas’, wto, Economic Research and Statistics Division, Working Paper ersc-2010-15, 2010, http://www.wto.org/english/res_e/reser_e/ersd201015_e.pdf.
China and its trading partners within the wto are changing China together, again with limits, perhaps because of China’s increasing openness, perhaps because the utility of international, transnational or even foreign law, stan- dards and best practice in the context of food safety regulation in China, and perhaps most of all because China is committed to the wto and the multilat- eral forum of the tprm.
This book analysed the making of transnational food safety law in China. Drawing on several disciplines, it aimed to make three principal arguments. First, modern food safety law in China, as in many other countries, was born from a food safety crisis. Second, the crisis resulted in partial transnationalisa- tion of Chinese rules and institutions concerned with food safety regulation. Third, the process of transnationalisation involved an increasing engagement with multilateral sites of governance, in particular international standards- setting bodies and the World Trade Organisation (wto) and their transna- tional normative repertoire; further research is required to consider China’s growing links regarding food safety with its main trading partners, notably the European Union and the United States.1 The account ranged from the early 2000s infant formula scandal, to subse- quent reform of law, administrative regulations and similar norms and the development and evolution of food safety standards and the politics and set- ting of new dairy standards; though the structures and relations of transna- tional sites of food safety regulation, wto consultations involving food safety
1 The basic us food law is fda Food Safety Modernization Act, Public Law 111-353-Jan. 4, 2011, 124 Stat. 3885, http://www.gpo.gov/fdsys/pkg/PLAW-111publ353/pdf/PLAW-111publ353.pdf, last accessed 6 February 2015. For commentary see Ron Knutson and Luis Ribeira, ‘Provisions and Economic Implications of fda’s Food Safety Modernization Act’, Agriculture and Food Policy Center, Department of Agricultural Economics, Texas AgriLife Research, Texas AgriLife Extension Service, Texas A&M University, January 2011, available at https://www.afpc.tamu .edu/pubs/1/554/IP%2011-01.pdf, last accessed 6 February 2016. A useful introduction to us food safety law is Neil D. Fortin, Food Regulation: Law, Science, Policy and Practice (John Wiley & Sons Inc., Hoboken, nj, 2009).The basic eu food law is Regulation (ec) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general princi- ples and requirements of food law, establishing the European Food Safety Authorityand lay- ing down procedures in matters of food safety, ojec, 1 February 2002, L31/1. See also Regulation (ec) No 882/2004 of the European Parliament and the Council of 29 April 2004 on official controls performed to ensure the verification of compliance with feed and food law, animal health and animal welfare rules, ojeu, 30 April 2004, L165/1. For commentary, see Caoimhin Macmaiolin, eu Food Law: Protecting Consumers and Health in a Common Market (Hart Publishing, Oxford, 2007); Alberto Alemanno and Simone Gabbi (eds), Foundations of eu Food Law and Policy: Ten Years of the European Food Safety Authority (Ashgate, Farnham, Surrey, new edition 2014); Bernd van der Meulen, eu Food Law Handbook (Wageningen Academic Publishers, Wageningen, 2014). On eu-China relations concerning food safety, see relevant documents in Snyder, Basic Documents, supra Chapter 2 note 23.
© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004306929_010
17 September 2008 set down four main priorities: to ensure the quality of dairy products and reassure the public, to restructure the dairy sector, to repair dam- age if possible and sanction offenders, and to unify to a greater extent than previously the regulation of food safety. In each area, the Party and the govern- ment gave special importance to law, including administrative and legal insti- tutions, norms and dispute resolution processes. A major result of Party and government policies was the enactment in 2009 of China’s first Food Safety Law. The chapter analysed the 2009 Food Safety Law from three interrelated yet distinct perspectives: first, as shaped by the meta- policy of preserving social stability, second as part of a set of more specific poli- cies, norms (including laws, administrative regulations and other rules) and legal and administrative processes and third from a classic legal perspective which focused on the text of the legislation and the implementing regulation. From the normative standpoint, the 2009 Food Safety Law represented a sig- nificant conceptual break with the 1995 Food Hygiene Law. From the institu- tional standpoint, it was shaped significantly by the State Council’s meta-policy and more specific policies and yet it demonstrated considerable continuity with the Food Hygiene Law in its pattern of institutional fragmentation, largely remaining to the segmented pattern of institutional responsibilities mandated by the 2004 State Council Decision about Further Strengthening Food Safety. The chapter argued that the text and the context of the Food Safety Law should both be taken seriously, that the 2009 Food Safety Law was shaped by the Chinese party-state’s meta-policy and that the text is best understood as part of a policy package, rather than on its own. Debates about consolidation and the treatment of small workshops exemplified the argument. The melamine crisis created a dramatic loss of public trust in food safety regulation. It provoked increasing interest within China in drawing on foreign experience and practice, particularly in the context of the gradual impact of Chinese accession to the wto. Accession began in 2001, and adaptation to membership was still underway when the melamine scandal occurred. wto membership altered the international legal context in which national food safety regulation took place. The melamine crisis served as a powerful stimu- lant for the transnationalisation of the Chinese regulatory regime for food safety, including legislation, administrative regulations and standards. The loss of public trust in food safety regulation contributed to the opening up of the Chinese market for dairy products, an increase of dairy imports including par- allel imports, and an increase in foreign investment. These factors augmented the market share of foreign and foreign-invested producers and processors, which in turn reinforced the turn to foreign products and tended to reinforce the government-led restructuring of the dairy sector.
Building on the analysis of the melamine crisis, Chapter 4 examined how the crisis stimulated a rapid but partial transnationalisation of Chinese dairy standards. It emphasized the types of domestic standards, the changing rela- tionship between domestic standards and international standards, and the participation of private actors in setting governmental standards. The legal framework for food safety standards in China was established long before the melamine crisis, but the crisis provided a decisive stimulus to reform of stan- dards for many dairy products, raw milk and melamine. Previously, there were no standards directly concerning melamine in infant formula; other possibly relevant standards were not enforced. Adequate testing procedures did not seem to exist, or if they existed, they were not used. The 2009 Food Safety Law brought crucial institutional and normative changes, in particular increased centralization of responsibility, greater supervision of the application of rules and a new legislative framework for the revision of standards. In discussing the role of business in setting standards,, the chapter demon- strated the extent to which food safety standards, as any standards, are a double-edged sword: on the one hand, they are intended to ensure product quality and safety; on the other hand, they serve as barriers to entry into the market. Close relations between government and business raised potential dilemmas of market access and regulatory capture. Debates focused on very technical issues such as protein level, bacteria count, determination of melamine content and maximum level for melamine in raw milk. However, they also mobilised factions running from individual companies to trade asso- ciations, to governmental organisations and specific ministries in different xitong, and even an international trade association. In China, the debate about dairy standards for small workshops symbolised a turning point in the transnationalisation of food safety regulation. This and other debates about the Food Safety Law and reform of the standards system were also imbricated in a tension between two levels of central government policy; on the one hand, a more concrete level, encompassing the more spe- cific, more short-term objectives of reassuring the public, ensuring product quality and restructuring the dairy sector, and, on the other hand, a more abstract meta-level, referring to the continuing, overriding objective of the Chinese party-state of preserving social stability. These debates focused on domestic policies, rules and politics, and they were expressed in the language of food safety regulation. However they also involved, expressly or implicitly, many competing views of the objectives, pace and even the role and legitimacy of transnationalisation. High-level compromise served to manage controver- sial changes in rules, to preserve market access for small as well as large pro- ducers, at least in the short run, and to steer the process of transationalisation.
The transnationalisation of Chinese food safety law and dairy standards remained firmly embedded in the Chinese context, while at the same time it provoked vigorous debate about the relationship between domestic and inter- national standards, known as alignment. Almost inevitably, the making of transnational food safety law involves increasing relations between a specific wto Member, such as China, and mul- tilateral sites of governance. Chapter 5 therefore shifted focus to examine the principal multilateral sites of food safety regulation. It concentrated on the fao, the who, infosan, the wto and four major international standards- setting bodies: the Codex Alimentarius Commission, the World Organisation for Animal Health (oie), the International Plant Protection Convention (ippc) and the International Organisation for Standardisation (iso). The chapter sketched the history, structure, functions, and normative roles of each institu- tion, its relations with other international, inter-governmental or other organi- zations and its relations if any with China before and after the melamine crisis. It also noted the existence of numerous other, regional and national sites of governance concerned with food safety. The chapter argued that the melamine crisis was a watershed in China’s links with international food safety institutions. It is important to avoid over- emphasis on any single event, and it is essential to recognise that the seeds of the transnationalisation of food safety regulation already existed in China. At the same time, however, it is necessary to understand the profound effects, both short-term and long-term, of the melamine crisis on future institutional and normative reforms, of the social setting in which these reforms occurred and of the paradigm change in the way of thinking about food safety regula- tion in China. The crisis resulted in a dramatic increase in relations between China and other sites involved in food safety regulation. These relations in turn supported and reinforced the transnationalisation of Chinese food safety regime, thus demonstrating that the structural dimension and the relational dimension of a site of governance mutually influence and condition each other. The chapter laid a foundation for the subsequent discussion of the role of the wto in the globalisation of national food safety standards, the use of international standards in wto dispute settlement and relations between the wto tprm and China with regard to food safety. Chapter 6 began by noting that globalisation has irrevocably altered the world of food safety. Globalisation has also altered irrevocably the world of food safety regulation, as earlier chapters demonstrated. Today, food safety standards are a subject of worldwide concern, regardless of whether the stan- dards are national or international in origin. With this in mind, Chapter 6 ana- lysed the effects of wto dispute settlement on the globalisation of national
2006, 2008, 2010, 2012 and 2014. It focused in particular on food safety law and types of standards, alignment of domestic standards with international stan- dards, the role of different domestic institutions, transparency and notification of food safety measures under the sps and tbt Agreements, import and export, and geographical indications (gis). For wto Members, including China, the tprm represents an invaluable process of mutual learning. It provides a means of encouraging and stimulat- ing the reviewed Member to provide information, engage in discussion of common issues and attempt to channel desired reforms in a wto-compatible direction. The tpr may appear to be heated at times, but its effectiveness relies on discussion and peer pressure, not on legal challenges or on third-party dis- pute settlement institutions. Hence the tpr is a relatively risk-free forum, despite the assumed interest of Members in controlling the type and amount of information which they seek or provide. It can, should and does serve as a vehicle of social change toward improved regulation of food safety and public health in the interest of all citizens. In this respect, the wto tprm can contrib- ute to improvement of food safety regulation in China. The tprm reviews of China’s trade policy exemplify relations between the two sites of governance, the basic elements of global legal pluralism, in two different respects. The first is really internal to a site. The structural features (institutions, norms and dispute settlement processes) of a site of governance, for example the tprm or China, shape its relations with other sites, for exam- ple China or the tprm, respectively. This type of relationship, which is internal to site A, may be abbreviated as [structures of A→relations of A] when A denotes a site of governance and→is taken to mean ‘conditions, shapes or determines’. The melamine crisis demonstrated that this interconnection between the structural dimension and the relational dimension of a site of governance, such as the Chinese party-state, is mutually conditioning and dynamic. This first interconnection, which is internal to a site of governance, con- trasts with a second type of relationship, which cuts across the boundaries of sites. The relations of one site, for example tprm or China, with other sites, for example China or the tprm, help to shape the structural features, namely institutions, norms and dispute settlement processes, of the latter site. This is really a connection between two distinct but increasingly intertwined sites of governance. It may be abbreviated as [relations between A (or B) and B (or A)→structures of B (or A)], if A and B denote different sites of governance and→is taken to mean ‘conditions, shapes or determines’. This scenario is a rep- resentation of a form of transnationalisation of law. The representation is not limited of course to relations between the wto and China. Nor does it signify
2 See Chenhao Jia and David Jukes, ‘The National Food Safety Control System of China: A Systematic Review’, Food Control, 32, 2013, pp. 236–245 at 242, who mention the 2011 State Council Food Safety Committee published a ‘Food Safety Promotion Education Works Programme (2011–2015)’. The website they indicate as a source seems no longer to be avail- able. They also note (at 242) the creation in 2009 of a unified food safety information release system but remark that the update of information ‘is not timely and complete’. 3 See usda Foreign Agricultural Service, Global Agricultural Information Network (gain), ‘People’s Republic of China, 12th Five Year Plan for National Food Safety Standard – Final’, prepared by Melinda Meador and Ma Jie, gain Report No. 12041, 28 June 2012, available at http://gain.fas.usda.gov/Recent%20GAIN%20Publications/12th%20Five%20Year%20 Plan%20for%20National%20Food%20Safety%20Standard-final_Beijing_China%20-%20 Peoples%20Republic%20of_6-28-2012.pdf, last accessed 17 February 2015.
4 People’s Republic of China. 12th Five Year Plan for National Food Safety Standard – final, United States Foreign Agricultural Service, Global Agricultural Information Network, Gain Report Number 12041, 28 June 2012 (informal translation), available at http://gain.fas .usda.gov/Recent%20GAIN%20Publications/12th%20Five%20Year%20Plan%20for%20 National%20Food%20Safety%20Standard-final_Beijing_China%20-%20Peoples%20 Republic%20of_6-28-2012.pdf, last accessed 17 February 2015. 5 Notice of the General Office on Issuing National Food Safety Supervision System Plan for 2012–2017: 国务院办公厅关于印发国家食品安全监管体系‘十二五’规划的通知 Guówùyuàn Bàngōngtīng Guānyú Yìnfā Guójiā Shípǐn ānquán Jiānguǎn Tǐxì ‘Shí’èrwǔ’ Guīhuà Dē Tōngzhī, Notice of the General Office of the State Council on Issuing National Food Safety Supervision System Plan for 2012–2017, 28 June 2012, available at pkulaw.cn, CLI.2.1796731, last accessed 6 February 2015. The specific document is 国家食品安全监管 体系‘十二五’规划 National Food Safety Supervision System Plan for 2012–2017, Guójiā Shípǐn ānquán Jiānguǎn Tǐxì ‘Shí’èrwǔ’ Guīhuà. See also Mark Astley, ‘China unveils latest five year food safety plan’, FoodQualityNews.com, 19 June 2012, available at http://www.food qualitynews.com/Regulation-and-safety/China-unveils-latest-five-year-food-safety-plan, last accessed 11 February 2015. 6 Notice of the General Office on Issuing National Food Safety Supervision System Plan for 2012–2017, Parts 2 and 3: 国务院办公厅关于印发国家食品安全监管体系‘十二五’ 规划的通知 Guówùyuàn Bàngōngtīng Guānyú Yìnfā Guójiā Shípǐn ānquán Jiānguǎn Tǐxì ‘Shí’èrwǔ’ Guīhuà Dē Tōngzhī, Notice of the General Office of the State Council on Issuing National Food Safety Supervision System Plan for 2012–2017, 28 June 2012, available at pku- law.cn, CLI.2.1796731, last accessed 6 February 2015. See also Xinhuanet News, ‘China’s National Food Safety Supervision System for 2012–2017 Came into Force’ [Zhongguo Guojia Shipin Anquan Jianguan Tixi Shierwu Guihua Shishi] (only available in Chinese), available at http://news.xinhuanet.com/politics/2012-07/12/c_112424329.htm, last accessed 23 February 2015. See also Melinda Meador and Ma Jie, ‘The Food Safety Management System of China’, usda Foreign Agricultural Services, Global Agricultural Information Network (gain), gaiin Report Number CH13020, 26 April 2013, available at http://gain.fas.usda.gov/Recent%20 GAIN%20Publications/The%20Food%20Safety%20Management%20System%20in%20 _Beijing_China%20-%20Peoples%20Republic%20of_4-26-2013.pdf, last accessed 6 February 2015.
Institutional reforms have gradually established a more centralized, coher- ent system of food safety regulation. A Food Safety Risk Assessment Expert Commission was established in 2009.7 The Food Safety Committee (fsc) was established in 2010,8 bringing together the Ministry of Agriculture, Ministry of Health, aqsiq, Ministry of Commerce, saic and the State Food and Drug Administration (sfda). Planning for a new standards body and a new risk assessment body began before May 2009.9 The Food Safety Standards Examination Commission was established in 2010.10 The National Center for Food Safety Risk Assessment (ncfsra) was established in 2011.11
7 Food Safety Risk Assessment Expert Commission: 国家食品安全风险评估专家委员 会, Guójiā Shípǐn Ānquán Fēngxiǎn Pínggū Zhuānjiā Wěiyuánhuì. See http://www .chinanews.com/gn/news/2009/1208/2007116.shtml [in Chinese, not available in English], last accessed 11 February 2015. It was based on the 2009 Food Safety Law, Article 13, para- graphs 1, 2. For its Chapter, see Notice of the General Office of the Ministry of Health on Distributing the Charter of Food Safety Risk Assessment Expert Commission (in Chinese, no English version available), available at Chinalawinfo, CLI4, 155382. 8 Food Safety Committee: 国务院食品安全委员会, Guówùyuàn Shípǐn Ānquán Wěiyuánhuì. Notice of the State Council on Establishing the Food Safety Committee of the State Council, No. 6 (2010) of the State Council, 国务院关于设立国务院食品安全 委员会的通知 [现行有效], 【法宝引证码】CLI.2.127010(en), 2 June 2010. The legal basis of the Notice was the 2009 Food Safety Law, Article 4. ‘Weiyuanhui’ is translated sometimes as committee, sometimes as commission. 9 Ministry of Health, ‘National food safety standards and risk assessment committee are in the pipeline’ [in Chinese, with Google translation], HC360.com, 31 May 2009, available at http://info.food.hc360.com/2009/05/311347140673.shtml, last accessed 11 February 2015. 10 Food Safety Standards Examination Commission: 食品安全国家标准审评委员会, Shípǐn Ānquán Guójiā Biāozhǔn Píngshěn Wěiyuánhuì: Notice of the Ministry of Health on Establishing the First Food Safety Standards Examination Commission [Shipin Anquan Guojia Biaozhun Pingshen Weiyuanhui]; Notice of the Ministry of Health on Issuing the Charter of the Food Safety Law of the People’s Republic of China. Both were based on the 2009 Food Safety Law, Article 23. 11 Centre for Food Safety Risk Assessment: 国家食品安全风险评估中心, Guójiā Shípǐn Ānquán Fēngxiǎn Pínggū Zhōngxīn. Letter of Confirming and Recording the Charter of the Centre for Food Safety Risk Assessment (Bian Zong Han Zi [2011] No. 451). This document may be an internal document and not available to public, either in Chinese or in English.. It appears in another document: ‘Notice of the General Office of the Ministry of Health on the Issue Concerning Delegating the Centre for Food Safety Risk Assessment to undertake certain obligations including the Secretariat of the Food Safety Standards Examination Commission’, (promulgated and came into force on 20 January 2012) CLI.4.166302, Chinalawinfo. The legal basis was the 2009 Food Safety Law, Articles 11 and 13. The NCFSRSA website is http://www.cfsa.net.cn/, last accessed 11 February 2015.
2013 was a year of great institutional change. The State Council Notice of the General Office on Issuing the Provisions on the Main Functions, Internal Bodies and Staffing of China National Food and Drug Administration12 set out basic reforms. In January, central government established a new monitoring system to monitor throughout the country about twenty kinds of food prod- ucts, including baby formula.13 The National People’s Congress created the new China Food and Drug Administration (cfda) in March 2013.14 The cfda integrated the functions and duties of the State Council Food Safety Committee
12 Notice of the General Office of the State Council on Issuing the Provisions on the Main Functions, Internal Bodies and Staffing of China National Food and Drug Administration. (in Chinese, no English version) (Only Chinese Version) (国务院办公厅关于印发国家 食品药品监督管理总局主要职责内设机构和人员编制规定的通知, Guówùyuàn Bàngōngtīng Guānyú Yìnfā Guójiā Shípǐn Yàopǐn Jiāndū Guǎnlǐ Zǒngjú Zhǔyào Zhízé Nèishè Jīgòu Hé Rényuán Biānzhī Guīdìng Dē Tōngzhī), promulgated by Order No. 109 of the General Office of the State Council and came into effect on 26 March 2013, CLI.2.201182, Chinalawinfo. The name of the document has also been translated as Key Responsibilities, Internal Structure and Staffing of the China Food and Drug Administration: Linhai Wu and Dian Zhu, Food Safety in China: A Comprehensive Review (crc Press, Boca Raton, fl, 2015), p. 206. 13 Notice on Issuing the 2013 Plan of China Food Safety Risk Monitoring 关于印发2013年 国家食品安全风险监测计划的通知, Guānyú Yìnfā 2013nián Guójiā Shípǐn Ānquán Fēngxiǎn Jiāncè Jìhuà Dē Tōngzhī: Order No. 131 of the General Office of the Ministry of Health on 29 October 2012, available at http://www.byswsj.com.cn/gwfb/ShowArticle .asp?ArticleID=963, last accessed on 12 February 2015. See also Zhang Jinran, ‘High hopes for new food safety monitoring’, China Daily, 15 March 2013, available at http://usa.chinadaily.com.cn/epaper/2013-03/15/content _16311463.htm, last accessed 11 February 2015. 14 China National Food and Drug Administration (国家食品药品监督管理总局, Guójiā Shípǐn Yàopǐn Jiāndū Guǎnlǐ Zǒngjú) , Notice of the General Office of the State Council on Issuing the Provisions on the Main Functions, Internal Bodies and Staffing of the China National Food and Drug Administration [in Chinese; no English version available]; Notice of the State Council on the Setup of Institutions (2013) [cfda is a sub-branch under the direct control of the State Council, hence it follows rules of the State Council for estab- lishing institutions]; National People’s Congress, Decision of the First Session of the Twelfth National People’s Congress on the Plan for Restructuring the State Council and Transforming Functions [Effective], 第十二届全国人民代表大会第一次会议关于 国务院机构改革和职能转变方案的决定 [现行有效], issued 14 March 2013 [estab- lishment of cfda is part of the institutional restructuring of the State Council]. See also Dan Stanton, ‘China’s fda: New Name, New Ministerial Level’, in-PharmaTechnologist. com, 28 March 2013, available at http://www.in-pharmatechnologist.com/Regulatory -Safety/China-s-FDA-New-Name-New-Ministerial-Level, last accessed 11 February 2015.
15 On the sfda, see Dali L. Yang, ‘Regulatory Learning and Its Discontents in China: Promise and Tragedy at the State Food and Drug Administration’, revised version of paper pre- pared for the conference on Pushing Back on Globalization: Local Asian Perspectives on Regulation, 28–30 November 2007, Melbourne, available at https://daliyang.files.word- press.com/2013/09/sfda.pdf, last accessed 11 February 2015. The paper was published later as Dali Yang, ‘Regulatory Learning and Its Discontents in China: Promise and Tragedy at the State Food and Drug Administration’, in John Gillespie and Randall Peeren boom (eds), Regulation in Asia: Pushing Back Globalization (Routledge, London, 2009), pp. 139–162. 16 I am grateful to Lu Yi for this summary. 17 National People’s Congress, Decision of the First Session of the Twelfth National People’s Congress on the Plan for Restructuring the State Council and Transforming Functions [Effective], 第十二届全国人民代表大会第一次会议关于国务院机构改革和职能 转变方案的决定 [现行有效], issued 14 March 2013, Article 3, available at http://www .lawinfochina.com/display.aspx?id=13772&lib=law&SearchKeyword=&SearchCKeyw ord=, last accessed 23 February 2015. 18 Linhai Wu and Dian Zhu, Food Safety in China: A Comprehensive Review crc Press, Bica Raton, fl, 2015, pp. 206–214. For comments, see Melinda Meador and Ma Jie, ‘The Food Safety Management System of China’, usda Foreign Agricultural Services, Global Agricultural Information Network (gain), gaiin Report Numbr CH13020, 26 April 2013, available at http://gain.fas.usda.gov/Recent%20GAIN%20Publications/The%20Food%20 Safety%20Management%20System%20in%20_Beijing_China%20-%20Peoples%20 Republic%20of_4-26 -2013.pdf, last accessed 6 February 2015; Brunswick Group, ‘China’s 12th National People’s Congress: A Review of the First Plenary Session of the 12th National People’s Congress and the leadership team who will govern China for the next ten years’, 17 March 2013, pp. 12, 15, available at http://www.brunswickgroup.com/media/28900/ china-review-npc-meeting-2013.pdf, last accessed 6 February 2015.
People’s Court issued a judicial interpretation setting forth new guidelines for handling criminal cases involving food safety incidents.19 On 29 October 2013, cfda released a revised draft of a new Food Safety Law,20 and subsequently the National People’s Congress on 1 July 2014 pub- lished the Food Safety Law draft for public comments.21 A second draft of the proposed new Food Safety Law was released to public comment in January 2015.22 On 24 April 2015, the Standing Committee of the National People’s Congress at its 14th Session adopted the new Food Safety Law, amending
19 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 of Jeopardizing Food Safety [Effective] (Interpretation No. 12 [2013] of the Supreme People’s Court ) (Adopted at the 1,576th session of the Judicial Committee of the Supreme People’s Court on 28 April 2013, and the 5th session of the Twelfth Procuratorial Committee of the Supreme People’s Procuratorate on 28 April 2013) (Issued and came into force on 4 May 2013), CLI.3.200527(EN), Chinalawinfo. See Bai Yang (editor), ‘China gives judicial inter- pretation for food safety cases’, CCTV.com.English, 3 May 2013, available at http://english .cntv.cn/program/china24/20130503/106489.shtml, last accessed 6 February 2015;[no author listed] ‘New Punishment Guidelines Issued for Food Safety Violators’, The Associated Press, Friday, 3 May 2013, available at http://www.ctvnews.ca/health/health -headlines/new-punishment-guidelines-issued-for-chinese-food-safety-law-violators -1.1265190, last accessed 6 February 2015. 20 u.s. – China Health Products Association, ‘China’s New Food Safety Law Draft’, translated by Alice Yang, 29 October 2013, available at http://uschinahpa.org/wp-content/ uploads/2012/01/2013-10-29-China-Food-Safety-Draft.pdf, last accessed 6 February 2015. 21 People’s Republic of China, Food Safety Law (Draft for Public Comments) (unofficial translation prepared by Andrew Anderson-Sprecher and Ma Jie), usda Foreign Agricultural Service, Global Agricultural Information Network (gain), People’s Republic of China, gain Report Number CH14036, 21 July 2014, available at http://gain.fas.usda .gov/Recent%20GAIN%20Publications/Food%20Safety%20Law%20%28Draft%20 for%20Public%20Comments%29_Beijing_China%20-%20Peoples%20Republic%20 of_7-21-2014.pdf, last accessed 6 February 2015; People’s Republic of China, Food Safety Law Draft for Comment (Compared with the 2009 Food Safety Law), prepared by M. Meador and Ma Jie, usda Foreign Agricultural Service, Global Agricultural Information Network (gain), People’s Republic of China, gain Report Number 13064, 8 November 2013, available at http://gain.fas.usda.gov/Recent%20GAIN%20Publications/Food%20 Safety%20Law%20Draft%20for%20Comment%20_Beijing_China%20-%20Peoples%20 Republic%20of_11-8-2013.pdf, last accessed 6 February 2015. 22 Covington and Burling, ‘China Releases Second Draft Food Safety Law for Public Comment’, 6 January 2015-, available at www.cov.com. I am grateful to José Carlos Matias dos Santos for bringing this document to my attention.
23 See ‘The amended Food Safety Law adopted’, at http://www.lawinfochina.com/search/ SearchNews.aspx. For comment, see Keller and Heckman, ‘China Passes Sweeping Amendment to Food Safety Law: The Most Stringent to Date’, 28 April 2015, available at https://www.khlaw.com/China-Passes-Sweeping-Amendment-to-Food-Safety -Law-The-Most-Stringent–To–Date, last accessed 7 May 2015; Huang Jianwen, ‘Selected Highlights of the Amended prc Food Safety Law’, King and Wood, 29 April 2015, available at http://www.chinalawinsight.com/2015/04/articles/healthcare/selected-highlights-of- the-amended-prc-food-safety-law, last accessed 7 May 2015. For a comparative analysis of the 2009 Food Safety Law and the new Law, see Echo Cao, ‘China Food Safety Law: Comparative Analysis on the New and Old Versions’, available at https://food.chemlinked .com/expert-article/china-food-safety-law-comparative-analysis-new-and-old-versions, last accessed 12 May 2015. 24 usda Foreign Agricultural Services, Global Agricultural Information Network (gain), People’s Republic of China, Food Safety Law Draft for Comment (Compared with the 2009 Food Safety Law), Article 1(5), prepared by M. Meador and Ma Jie, gain Report Number 13064, 8 November 2013, available at http://gain.fas.usda.gov/Recent%20GAIN%20 Publications/Food%20Safety%20Law%20Draft%20for%20Comment%20_Beijing _China%20-%20Peoples%20Republic%20of_11-8-2013.pdf, last accessed 6 February 2015. 25 ‘卫生部办公厅关于印发2011年国家食品安全风险监测督查工作方案的通知 (卫 办监督函 [2011]813号) [Notice of the General Office of the Ministry of Health on Issuing the 2011 Monitoring and Surveillance Working Plan of National Food Safety Risk (Wei Ban Jian Du Han, No. 813 of 2011)] (Promulgated and came into force on 5 September 2011) (only available in Chinese), CLI.4.159114, Chinalawinfo’. 26 usda Foreign Agricultural Services, Global Agricultural Information Network (gain), People’s Republic of China, Food Safety Law Draft for Comment (Compared with the 2009 Food Safety Law), Article 12, prepared by M. Meador and Ma Jie, gain Report Number 13064, 8 November 2013, available at http://gain.fas.usda.gov/Recent%20GAIN%20 Publications/Food%20Safety%20Law%20Draft%20for%20Comment%20_Beijing _China%20-%20Peoples%20Republic%20of_11-8-2013.pdf, last accessed 6 February 2015.
The Ministry of Health remains responsible for organizing food safety risk assessment,27 issuing any necessary food safety alerts28 and developing and publicizing national food safety standards.29 The Ministry of Health together with the Ministry of Agriculture are responsible for developing testing proce- dures for slaughtering livestock and poultry.30 The Ministry of Agriculture remains responsible for quality and safety management of primary agricul- tural products for consumption; unless otherwise provided in the new Food Safety Law, such products remain governed by the Law on the Quality and Safety of Agricultural Products.31 The amended Food Safety Law prohibits the use of highly toxic pesticides, establishes requirements for e-commerce food
27 usda Foreign Agricultural Services, Global Agricultural Information Network (gain), People’s Republic of China, Food Safety Law Draft for Comment (Compared with the 2009 Food Safety Law), Article 14, paragraph 2, Article 15, prepared by M. Meador and Ma Jie, gain Report Number 13064, 8 November 2013, available at http://gain.fas.usda.gov/ Recent%20GAIN%20Publications/Food%20Safety%20Law%20Draft%20for%20 Comment%20_Beijing_China%20-%20Peoples%20Republic%20of_11-8-2013.pdf, last accessed 6 February 2015. 28 usda Foreign Agricultural Services, Global Agricultural Information Network (gain), People’s Republic of China, Food Safety Law Draft for Comment (Compared with the 2009 Food Safety Law), Article 18, prepared by M. Meador and Ma Jie, gain Report Number 13064, 8 November 2013, available at http://gain.fas.usda.gov/Recent%20GAIN%20 Publications/Food%20Safety%20Law%20Draft%20for%20Comment%20_Beijing _China%20-%20Peoples%20Republic%20of_11-8-2013.pdf, last accessed 6 February 2015. 29 usda Foreign Agricultural Services, Global Agricultural Information Network (gain), People’s Republic of China, Food Safety Law Draft for Comment (Compared with the 2009 Food Safety Law), Article 23, paragraph 1, prepared by M. Meador and Ma Jie, gain Report Number 13064, 8 November 2013, available at http://gain.fas.usda.gov/Recent%20 GAIN%20Publications/Food%20Safety%20Law%20Draft%20for%20Comment%20 _Beijing_China%20-%20Peoples%20Republic%20of_11-8-2013.pdf, last accessed 6 February 2015. 30 usda Foreign Agricultural Services, Global Agricultural Information Network (gain), People’s Republic of China, Food Safety Law Draft for Comment (Compared with the 2009 Food Safety Law), Article 23, paragraph 2, prepared by M. Meador and Ma Jie, gain Report Number 13064, 8 November 2013, available at http://gain.fas.usda.gov/Recent%20 GAIN%20Publications/Food%20Safety%20Law%20Draft%20for%20Comment%20 _Beijing_China%20-%20Peoples%20Republic%20of_11-8-2013.pdf, last accessed 6 February 2015. 31 usda Foreign Agricultural Services, Global Agricultural Information Network (gain), People’s Republic of China, Food Safety Law Draft for Comment (Compared with the 2009 Food Safety Law), Article 2, paragraph 2, prepared by M. Meador and Ma Jie, gain Report Number 13064, 8 November 2013, available at http://gain.fas.usda.gov/Recent%20 GAIN%20Publications/Food%20Safety%20Law%20Draft%20for%20Comment%20
_Beijing_China%20-%20Peoples%20Republic%20of_11-8-2013.pdf, last accessed 6 February 2015. 32 See for example Wenran Jiang, ‘ The Impact of the Chinese Development Model on Food Safety’, in Wayne Ellefson, Lorna Zach and Darryl Sulliver (eds), Improving Import Food Safety (Wiley-Blackwell, Oxford, 2013), pp. 45–64 at 57–60; Yuanyuan Shen, ‘The Development of and Challenges Facing Food Safety Law in the People’s Republic of China’, in Wayne Ellefson, Lorna Zach and Darryl Sulliver (eds), Improving Import Food Safety (Wiley-Blackwell, Oxford, 2013), pp. 151–194 at 181–187; Forum on Health, Environment and Development (FORHEAD), Working Group on Food Safety, ‘Food Safety in China: A Mapping of Problems, Governance and Research’, FORHEAD and ssrc, February 2014, available at http://www.sainonline.org/SAIN-Website%28English%29/ pages/News/FOOD%20SAFETY%20IN%20CHINA%20A%20MAPPING%20OF%20 PROBLEMS,%20GOVERNANCE%20AND%20RESEARCH.pdf, last accessed 11 February 2015. 33 See for example Arthur P.J. Mol, ‘Governing China’s Food Quality through Transparency: A Review’, Food Control, 43, 2014, pp. 49–56. 34 The scale of this challenge is suggested by He Guangwei, ‘In China’s Heartland, A Toxic Trail Leads from Factories to Fields to Food’, E360 Special Report ii, Environment 360, Yale University School of Forestry and Environmental Studies, available at http://e360.yale. edu/feature/chinas_toxic_trail_leads_from_factories_to_fo od/2784/, last accessed 6 February 2015; and Tony Zhang, Ivan Han and Jinling Wu, ‘Soil pollution remediation: Guangdong digs into soil remediation; opportunities for monitoring, chemical and envi- ronmental firms’, XportReporter in partnership with International Labmate Ltd,
16 January 2014, available at file:///C:/Users/PO STE1/Downloads/soil_pollution_remedia- tion%20(2).pdf, last accessed 6 February 2015. See also McBeath and McBeath, Environment, supra note 569. 35 On gmos, see for example United States Library of Congress, Research & Reports, Legal Topics, ‘Restrictions on Genetically Modified Organisms: China’, available at http://www. loc.gov/law/help/restrictions-on-gmos/china.php, last accessed 17 February 2015; Jennifer H. Zhao and Peter Ho, ‘A Developmental Risk Society? The Politics of Genetically Modified Organisms (gmos) in China’, International Journal of the Environment and Sustainable Development, 4, 4, 2005, pp. 370–394; David Talbot, ‘China’s gmo Stockpile’, mit Technology Review, 21 October 2014, available at http://www.technologyreview.com/featured- story/531721 /chinas-gmo-stockpile/, last accessed 17 February 2015. On nanotechnology, see for example World Health Organization, ‘fao/who Expert Meeting on the Application of Nanotechnologies in the Food and Agricultural Sectors: Potential Food Safety Implications’, (Food and Agriculture Organization of the United Nations and World Health Organization, Rome, 201), available at http://whqlibdoc.who.int/publications/ 2010/978924156393 2_eng.pdf, last accessed 17 February 2015; Darryl S.L. Jarvis and Noah Berger, ‘Regulation and Governance of Nanotechnology in China: Regulatory Challenges and Effectiveness’, European Journal of Law and Technology, 2, 3, 2011, pp. 1–11; Michael Berger ‘Nanotechnology in Agriculture’, Nanowerk, posted 25 August 2014, available at http://www.nanowerk.com/spotlight/spotid=37064.php, last accessed 17 February 2015; Joachim Weiss, Paul Takhistov and Julien McClements, ‘Functional Materials in Food Nanotechnology’, Journal of Food Science, 71, 9, 2006, pp R107-R116; Chi-Fai Chau, Shiuan-Huai Wu and Gow-Chin Yen, ‘The Development of Regulations for Food Nanotechnology’, Trends in Food Science and Technology, 18,2007, pp. 269–280; See gen- erally Vladimir Murashov and John Howard (eds), Nanotechnology Standards (Springer, New York, 2011).
(5–9 years) and long term (10 years or more). Eventually, a national Food Law, embracing hygiene, food safety and food quality, should be adopted to replace the current Food Safety Law. Taking a broad view to embrace the challenges of 7+3, the strategy would provide a solid basis for ensuring safe and healthy food for present and future generations. China can both learn from and teach other countries.
Non-WTO Multilateral Treaties North American Free Trade Agreement between the Government of Canada, the Government of the United Mexican States and the Government of the United States of America, Article 713(1) 276 Treaty on the Functioning of the European Union (tfeu) Article 105 329 Article 258 329 Article 259 329 United Nations Charter, Article 57 248 United Nations General Assembly, Resolution 39/348 263 Vienna Convention on the Law of Treaties (vclt) vclt, Article 31 335, 337, 368, 393
gatt and wto Agreements Agreement on Safeguards Agreement on Subsidies and Countervailing Measures Articles 1 22 Articles 2 22 Articles 3 22 Agreement on the Application of Sanitary and Phytosanitary Measures (sps) sps, Preamble 183, 260, 338, 339 sps, Preamble, 1th, 4th, 5th, 6th and 7th recitals 183 sps, Annex A 181m 182, 259, 260, 261, 267, 269, 338, 339, 345, 347, 348, 351, 352, 362, 363, 366, 369, 370, 371, 372, 373, 376 sps, Annex A(2) 267 sps, Annex A: Definitions 260, 261, 269 sps, Annex A, paragraph 4 347, 366 sps, Annex A, paragraph 5 351, 373 sps, Annex A (1), paragraph 1 338 sps, Annex A (1), paragraph 2 338 sps, Annex B 185, 186, 210, 297, 303, 362 sps, Annex B (1) 297 sps, Annex B (3) 186 sps, Annex B (6) 185
© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004306929_11
sps, Annex B (7) 185 sps, Article 1 182 sps, Article 1.1 260 sps, Article 1.4 259 sps, Article 2.1 259 sps, Article 2.2 259, 261 sps, Article 2.3 261, 299 sps, Article 2.4 261 sps, Article 3.1 194, 261, 264, 351, 353, 354, 387 sps, Article 3.2 259, 396 sps, Article 3.3 184, 261, 351, 353, 354, 387 sps, Article 3.4 259 sps, Article 4.1 261 sps, Article 5 184, 210, 294, 310, 351, 352, 354 sps, Article 5.1 298, 345, 346, 347, 348, 349, 352, 354, 355, 363, 364, 365, 366, 375, 376, 377 sps, Article 5.7 261, 262, 265, 304, 357, 358, 363, 371 sps, Article 7 185, 297 sps, Article 10 262 sps, Article 14 262 Agreement on Technical Barriers to Trade (tbt) tbt, Preamble 183, 341 tbt, Article 1 182 tbt, Article 1.1 341 tbt, Article 1.2 259 tbt, Article 1.5 182, 259 tbt, Article 2.2 194, 264 tbt, Article 2.3 342 tbt, Article 2.4 194 tbt, Article 2.5 185, 260 tbt, Article 2.6 260, 342 tbt, Article 2.9 343 tbt, Article 2.10 196 tbt, Article 2.12 196, 383 tbt, Article 3.2 343 tbt, Article 4.1 194, 196, 343, 344 tbt, Article 4.2 344 tbt, Article 10 196 tbt, Annex 1 259, 341, 342, 361
tbt, Annex 1.1 342 tbt, Annex 1.2 267, 359, 361 tbt, Annex 1.2 Explanatory Note 266 tbt, Annex 3 194 Agreement on Trade-Related Aspects of Intellectual Property Rights (trips) trips, Article 22(1) 259, 469 trips, Article 22(2) 259, 469 trips, Article 23 259, 469 General Agreement on Tariffs and Trade (gatt) (1947, 1994) gatt, Article i 258, 299 gatt, Article ii 258 gatt, Article iii 258 gatt, Article x:1 297 gatt, Article xi 258 gatt, Article xi:2(a) 258 gatt, Article xi:2(b) 258 gatt, Article xi:2(c) 258 gatt, Article xx(b) 258 gatt, Article xxii 290, 311 gatt, Article xxiv 258 General Agreement on Trade in Services (gats) gats, Article xiv (b) 258 wto Protocol on the Accession of China 397, 398, 399, 400, 401 paragraph 1(2) 423 paragraph 2A1 423 paragraph 2A2 423 Understanding on Rules and Procedures Governing the Settlement of Disputes (dsu) dsu, Article 3.5 297, 320, 329 dsu, Article 3.6 296 dsu, Article 3.7 286, 288, 329 dsu, Article 4.11 290, 320 dsu, Article 4.2 295 dsu, Article 4.5 329 dsu, Article 4.7 312 dsu, Article 6.1 305 dsu, Article 10 330, 344 dsu, Article 12 110 Decision on the Implementation of Article 4 of the Agreement on Sanitary and Phytosanitary Measures, 23 July 2004, revised version 298
Bilateral Treaties 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 39, 178 Agreement between the United States of America and the People’s Republic of China on China’s wto Accession 196, 401 Memorandum of Understanding between United States Food and Drug Administration and China’s Center for Food Safety Risk Assessment regarding coop- eration to enhance activities of mutual interest 425, 488, 490 Memorandum of Understanding on Administrative Co-operation Arrangements between the European Commission’s Directorate General for Health and Consumer Protection (dg-sanco) and the Administration for Quality Supervision, Inspection and Quarantine of the People’s Republic of China 178 Sino-eu Agreement on China’s Accession to the wto: Results of the Bilateral Negotiations 196, 401
Other Agreements and Documents Agreement between the Food and Agriculture Organisation of the United Nations and the World Health Organisation 248 Agreement between the World Health Organisation and the Office International des Epizooties 247 International Code of Marketing of Breast-Milk Substitutes, Article 10.2 249
Statutes of the Codex Alimentarius Commission Article 5 269 Article 6 269 Article 7 269
World Health Organisation Constitution 245 Article 1 246 Article 2 246 Article 2(b) 246 Article 3 245 Article 8 245 Article 9 246 Article 18(h) 247 Article 19 246 Article 20 247 Article 21(d) 247 Article 22 247 Article 23 247 Article 24 247 Article 38 246 Article 69 248 Article 70 248 Article 71 248 Article 72 248
Legislation of the European Union [previously European Economic Community (eec) or European Community (ec)]
Commission Regulation (eu) No 1035/2010 34 Council Regulation (eu) No. 457/2011 35 Council Regulation (eec) No. 2136/89 266, 358 Regulation (ec) No 178/2002 176, 302, 380, 477 Regulation (ec) No 882/2004 242, 477 Regulation (ec) No 1907/2006 39
Legislation and Administrative Regulations of the People’s Republic of China
Legislation Agriculture Law of the People’s Republic of China (Adopted at the Second Meeting of the Standing Committee of the Eighth National People’s Congress on July 2, 1993, pro- mulgated by Order No.6 of the President of the People’s Republic of China on July 2, 1993, and effective as of July 2, 1993), Article 34 194, 502 Civil Procedure Law of the People’s Republic of China, (Adopted at the 4th Session of the Seventh National People’s Congress on 9 April 1991; amended for the first time in accordance with the Decision on Amending the Civil Procedure Law of the prc as adopted at the 30th 140, 149 Civil Procedure Law of the People’s Republic of China (Session of the Standing Com mittee of the Tenth National People’s Congress on 28 October 2007; and amended for the second time in accordance with the Decision on Amending the Civil Procedure Law of the prc as adopted at the 28th Session of the Standing Committee of the Eleventh National People’s Congress on 31 August 2012) (Promulgated by the Order No. 59 of the President of the prc and came into effect on 31 August 2012), CLI.1.183386(en), Chinalawinfo (cp) cp, Article 18 140 cp, Article 123 153 Decision of the First Session of the Twelfth National People’s Congress on the Plan for Restructuring the State Council and Transforming Functions [Effective], National People’s Congress, 第十二届全国人民代表大会第一次会议关于国务院机构改革和职 能转变方案的决定 [现行有效], issued 14 March 2013
Article 3 490 Equity Joint Venture Law (1979, 1990 revision) 43 Food Hygiene Law of the People’s Republic of China, promulgated by Standing Committee of the National People’s Congress on 19 November 1982, effect on 1 July 1983 Food Hygiene Law of the People’s Republic of China (1995), Adopted at the 16th Meeting of the Standing Committee of the Eighth National People’s Congress on October 30, 1995, promulgated by Order No. 59 of the President of the People’s Republic of China on October 30, 1995, and effective as of the date of promulgation)(Repealed by the 2009 Food Safety Law on June 1, 2009) Article 1 157 Article 3 86, 158 Article 4 158 Article 6 158 Article 7 159 Article 9 158 Article 11 159 Article 32 159 Article 33 159 Article 39 159, 160 Article 43 160 Article 49 159 Article 54 158, 159 Food Safety Law (Adopted at the 7th Session of the Standing Committee of the 11th National People’s Congress of the prc on 28 February 2009)(promulgated by Order No. 9 of the President of the People’s Republic of China on 28 February 2009 and effective as of 1 June 2009)), CLI.1.113981(en), Chinalawinfo. (2009 Food Safety Law) 2009 Food Safety Law, Article 2 164 2009 Food Safety Law, Article 4 488 2009 Food Safety Law, Article 5 164 2009 Food Safety Law, Article 11 167, 488 2009 Food Safety Law, Article 12 168 2009 Food Safety Law, Article 13 168, 488 2009 Food Safety Law, Article 18 204 2009 Food Safety Law, Article 19 204, 207 2009 Food Safety Law, Article 20 204, 205 2009 Food Safety Law, Article 21 205 2009 Food Safety Law, Article 22 205 2009 Food Safety Law, Article 23 205, 488 2009 Food Safety Law, Article 24 206
2009 Food Safety Law, Article 25 207 2009 Food Safety Law, Article 27 168, 207 2009 Food Safety Law, Article 28 168 2009 Food Safety Law, Article 29 165, 166 2009 Food Safety Law, Article 30 167 2009 Food Safety Law, Article 31 167 2009 Food Safety Law, Article 32 167 2009 Food Safety Law, Article 33 167 2009 Food Safety Law, Article 36 168 2009 Food Safety Law, Article 37 168 2009 Food Safety Law, Article 39 168 2009 Food Safety Law, Article 41 168 2009 Food Safety Law, Article 42 169 2009 Food Safety Law, Article 43 169 2009 Food Safety Law, Article 45 169 2009 Food Safety Law, Article 46 170 2009 Food Safety Law, Article 47 170 2009 Food Safety Law, Article 52 172 2009 Food Safety Law, Article 53 170 2009 Food Safety Law, Article 56 167 2009 Food Safety Law, Article 60 168 2009 Food Safety Law, Article 62 170, 207 2009 Food Safety Law, Article 63 170, 207 2009 Food Safety Law, Article 64 170 2009 Food Safety Law, Article 68 170 2009 Food Safety Law, Article 70 170 2009 Food Safety Law, Article 71 170, 171 2009 Food Safety Law, Article 72 171 2009 Food Safety Law, Article 73 171 2009 Food Safety Law, Article 74 171 2009 Food Safety Law, Article 75 171 2009 Food Safety Law, Article 77 171 2009 Food Safety Law, Article 81 171 2009 Food Safety Law, Article 82 171 2009 Food Safety Law, Article 84 171 2009 Food Safety Law, Article 85 171, 172, 207 2009 Food Safety Law, Article 87 169, 172 2009 Food Safety Law, Article 89 172 2009 Food Safety Law, Article 95 172 2009 Food Safety Law, Article 96 172, 173
2009 Food Safety Law, Article 97 173 2009 Food Safety Law, Article 98 173 Frontier Health and Quarantine Law of the People’s Republic of China, (Adopted at the 18th Meeting of the Standing Committee of the Sixth National People’s Congress on December 2,1986; and amended in accordance with the Decision on Amending the Frontier Health and Quarantine Law of the People’s Republic of China adopted at the 31st Meeting of the Standing Committee of the Tenth National People’s Congress on December 29, 2007) 38 Law of the People’s Republic of China on Agricultural Product Quality Safety (amended and adopted at the 21st Meeting of the Standing Committee of the Tenth National People’s Congress of the People’s Republic of China on 29 April 2004, in effect as of 1 November 2006), Article 1 157 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, and takes effect as of 1 January 1994 160 Law on Civil Servants, (Adopted at the 15th Session of the Standing Committee of the Tenth National People’s Congress on 27 April 2005, promulgated and came into force as of 1 January 2006) 85 Organic Law of the People’s Courts of the People’s Republic of China, adopted at the Second Session of the Fifth National People’s Congress on 1 July 1979, promulgated by Order No.3 of the Chairman of the Standing Committee of the National People’s Congress on July 5, 1979 and effective as of January 1, 1980; amended according to the Decision Concerning the Revision of the Organic Law of the People’s Courts of the People’s Republic of China adopted at the Second Meeting of the Sixth National People’s Congress on September 2, 1983 (olpc) olpc, Article 33 118 Organic Law of the People’s Courts of the People’s Republic of China (olpc) (Adopted at the Second Session of the Fifth National People’s Congress on 1 July 1979 and 3rd revised as adopted at the 24th meeting of the Standing Committee of the 10th National People’s Congress of the prc on 31 October 2006) (promulgated by the Order No. 59 of the President of the prc and came into effect on 31 October 2006), CLI.1.81825(en), Chinalawinfo, Article 24 140 Product Quality Law of the People’s Republic of China, Adopted at the 30th Meeting of the Standing Committee of the Seventh National People’s Congress on 22 February 1993 160 Provisional Regulations on the Resignation of Leading Cadres of the Party and Government, (No.13 [2004] of the General Office of the cccpc, promulgated and came into force on 8 April 2004) and incorporated into the Law on Civil Servants (Adopted at the 15th Session of the Standing Committee of the Tenth National
People’s Congress on 27 April 2005, promulgated and came into force as of 1 January 2006) 85 全国人民代表大会常务委员会关于加强法律解释工作的决议 [Resolution of the Standing Committee of the National People’s Congress Providing an Improved Interpretation of the Law] [Quánguó Rénmín Dàibiǎo Dàhuì Chángwù Wěiyuánhuì Guānyú Jiāqiáng Fǎlǜ Jiěshì Gōngzuò Dē Juéyì], Article 3, adopted at the 19th Meeting of the Standing Committee of the Fifth National People’s Congress on 10 June 1981, reprinted in The Laws of the People’s Republic of China 1979–1982 (compiled by the Legislative Affairs Commission of the Standing Committee of the National People’s Congress of the People’s Republic of China) (Foreign Languages Press, Beijing 1987) (scnpc 1981 Resolution) scnpc 1981 Resolution, Article 1 118 scnpc 1981 Resolution, Article 2 118 scnpc 1981 Resolution, Article 3 118, 119 scnpc 1981 Resolution, Article 4 119 Standardization Law of the People’s Republic of China (adopted at the Fifth Meeting of the Standing Committee of the Seventh National People’s Congress on December 29, 1988, promulgated by Order No. 11 of the President of the People’s Republic of China on December 29, 1988, and effective as of April 1, 1989 (Standardization Law) Standardization Law, Article 1 188 Standardization Law, Article 4 191 Standardization Law, Article 5 189 Standardization Law, Article 6 189 Standardization Law, Article 7 191, 204 Standardization Law, Article 11 191 Standardization Law, Article 13 191 Standardization Law, Article 14 191 Standardization Law, Article 20 191 Standardization Law, Article 24 192
Administrative Regulations
By the State Council Administration Statute for National Standardization中华人民共和国国际标准化管理 条例 187 Administration Statute of Technical Standards for Product of Industry, Agriculture, and for Project Reconstruction (gongnongye chanpin he gongcheng jianshe jishubi- aozhun guanlibanfa), Nov. 1962, article 14 187
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), CLI.1.17010(en), Chinalawinfo, Article 143 117 Article 144 117, 138 Decision of the State Council about Further Strengthening Food Safety, issued on 9 January 2004, effective date 9 January 2004, (No. 23 [2004] of the State Council) CLI. 2.55522(en),Chinalawinfo 111, 115 Equity Joint Venture Law Implementing Regulations (Promulgated by the State Council on Sep. 20, 1983 Amended by the State Council on Jan.15 1986, Dec.21, 1987 Amended by the State Council according to the Decision of the State Council on Amending the Regulations for the Implementation of the Law of the People’s Republic of China on Joint Ventures Using Chinese and Foreign Investment on July 22, 2001, Amended by the State Council on February 19, 2014 according to the Decision of the State Council on Repealing and Amending Some Administrative Regulations) 43 Import and Export (General)(Amendment) Regulation 2013 (with effect from 1 March 2013) – Quantity of Powdered Formula for Persons Departing from Hong Kong 133 Notice of the General Office of the State Council on Issuing the Provisions on the Main Functions, Internal Bodies and Staffing of China National Food and Drug Administration. (国务院办公厅关于印发国家食品药品监督管理总局主要职责内设 机构和人员编制规定的通知, Guówùyuàn Bàngōngtīng Guānyú Yìnfā Guójiā Shípǐn Yàopǐn Jiāndū Guǎnlǐ Zǒngjú Zhǔyào Zhízé Nèishè Jīgòu Hé Rényuán Biānzhī Guīdìng Dē Tōngzhī), promulgated by Order No. 109 of the General Office of the State Council and came into effect on 26 March 2013, CLI.2.201182, Chinalawinfo 489 Notice of the General Office on Issuing National Food Safety Supervision System Plan for 2012–2017: 国务院办公厅关于印发国家食品安全监管体系‘十二五’规划的 通Guówùyuàn Bàngōngtīng Guānyú Yìnfā Guójiā Shípǐn ānquán Jiānguǎn Tǐxì ‘Shí’èrwǔ’ Guīhuà Dē Tōngzhī, Notice of the General Office of the State Council on Issuing National Food Safety Supervision System Plan for 2012–2017, 28 June 2012 487 Notice of the State Council on Establishing the Food Safety Committee of the State Council, No. 6 (2010) of the State Council 国务院关于设立国务院食品安全委员会的通 知 [现行有效], 【法宝引证码】CLI.2.127010(en), 2 June 2010 488 Regulations for the Implementation of the Standardization Law of the People’s Republic of China (promulgated by Decree No. 53 of the State Council of the People’s Republic of China on April 6, 1990 and effective as of the date of promulgation) (Standardization Law Implementing Regulations) Standardization Law Implementing Regulations, Article 3 192 Standardization Law Implementing Regulations, Article 4 192
Standardization Law Implementing Regulations, Article 6 193 Standardization Law Implementing Regulations, Article 7 193 Standardization Law Implementing Regulations, Article 8 193 Standardization Law Implementing Regulations, Article 9 193 Standardization Law Implementing Regulations, Article 11 193 Standardization Law Implementing Regulations, Article 12 193 Standardization Law Implementing Regulations, Article 13 193 Standardization Law Implementing Regulations, Article 14 193 Standardization Law Implementing Regulations, Article 15 193 Standardization Law Implementing Regulations, Article 17 193 Standardization Law Implementing Regulations, Article 18 193 Standardization Law Implementing Regulations, Article 25 194 Standardization Law Implementing Regulations, Article 28 194 Standardization Law Implementing Regulations, Article 29 194 Standardization Law Implementing Regulations, Article 32 194 Standardization Law Implementing Regulations, Article 33 195 Standardization Law Implementing Regulations, Article 34 195 Regulation on Food Hygiene Administration, promulgated by State Council on 27 August 1979 156 Regulation on the Implementation of the Food Safety Law of the People’s Republic of China (Decree of the State Council of the People’s Republic of China, No. 557, adopted at the 73rd State Council executive meeting on July 8, 2009, promulgated on 20 July 2009, effective as of 20 July 2009) (2009 Food Safety Law Implementing Regulation) 2009 Food Safety Law Implementing Regulation, Article 2 173, 208 2009 Food Safety Law Implementing Regulation, Article 5 173, 209 2009 Food Safety Law Implementing Regulation, Article 12 173, 208 2009 Food Safety Law Implementing Regulation, Article 15 173, 209 2009 Food Safety Law Implementing Regulation, Article 17 173, 209 2009 Food Safety Law Implementing Regulation, Article 18 174, 208 2009 Food Safety Law Implementing Regulation, Article 19 174, 208 2009 Food Safety Law Implementing Regulation, Article 33 174 2009 Food Safety Law Implementing Regulation, Article 39 174 2009 Food Safety Law Implementing Regulation, Article 40 175, 209 2009 Food Safety Law Implementing Regulation, Article 44 175 2009 Food Safety Law Implementing Regulation, Article 49 175 2009 Food Safety Law Implementing Regulation, Article 53 175 2009 Food Safety Law Implementing Regulation, Article 57 175 2009 Food Safety Law Implementing Regulation, Article 63 173, 209 Regulation on the Supervision and Administration of the Quality and Safety of Dairy Products tba. (Order No.536 of the State Council of the prc) (Adopted at the
28th executive meeting the State Council on 6 October 2008) (Promulgated and came into force on 9 October 2008), CLI.2.109190(en), Chinalawinfo. (qsdp Regulation) qsdp Regulation, Article 1 115 qsdp Regulation, Article 3 115 qsdp Regulation, Article 4 115 qsdp Regulation, Article 6 116, 226 qsdp Regulation, Article 7 116 qsdp Regulation, Article 9 116 qsdp Regulation, Article 12 122 qsdp Regulation, Article 20 122 qsdp Regulation, Article 24 116, 226 qsdp Regulation, Article 28 122 qsdp Regulation, Article 30 116 qsdp Regulation, Article 31 117 qsdp Regulation, Article 34 122 qsdp Regulation, Article 40 117 qsdp Regulation, Article 44 117 qsdp Regulation, Article 45 226 qsdp Regulation, Article 54 226 qsdp Regulation, Article 55 226 qsdp Regulation, Article 56 118, 226 中华人民共和国标准法实施条例 [Regulations for the Implementation of the Standardisation Law of the People’s Republic of China] (promulgated by Decree No. 53 of the St. Council, 6 April 1990, effective as of the date of promulgation) Article 4 412, 413, 438 乳制品安全监督管理条例 [Regulation on the Supervision and Administration of the Quality and Safety of Dairy Products] [Rǔpǐn Zhìliàng Ānquán Jiāndū Guǎnlǐ Tiáolì] (adopted at the 28th executive meeting the State Council on 6 October 2008 and promulgated and came into force by State Council Order No. 536 on 9 October 2008) CLI.2.109190(en) Chinalawinfo. 115, 436
By Departments of the State Council Administrative Measures for National Food Safety Standards (adopted at the executive meeting of the Ministry of Health on 20 September 2010, promulgated on 20 October 2010, effective as of 1 December 2010 (2010 Measures for National Food Safety Standards) 2010 Measures for National Food Safety Standards, Article 1 209 2010 Measures for National Food Safety Standards, Article 2 209 2010 Measures for National Food Safety Standards, Article 3 209 2010 Measures for National Food Safety Standards, Article 4 210 2010 Measures for National Food Safety Standards, Article 6–37 210 2010 Measures for National Food Safety Standards, Article 41 210
进口食品境外生产企业注册管理规定 [Administrative Measures for Registration of Overseas Manufacturers of Imported Food] (promulgated by the State Administration of Quality Supervision, Inspection and Quarantine, June 21, 2011, effective 1 May 2012). 446 Administrative Measures for the Packaging and Marking of Agricultural Products (deliberated and adopted at the 25th executive meeting of the Ministry of Agriculture on 30 September 2006, promulgated on 17 October 2006, in effect as of 1 November 2006), Articles 9, 10, 11. 157 Administrative Measures for the Production and Purchase of Fresh Milk (adopted at the 8th Standing Meeting of the Ministry of Agriculture on 4 November 2008, and promulgated by Order No. 15 of the Ministry of Agriculture and came into effect on 7 November 2008), CLI.4.110498(en), Chinalawinfo. (ppfm Measures) ppfm Measures, Article 4 120 ppfm Measures, Article 5 120 ppfm Measures, Article 6 120 ppfm Measures, Article 16 125 ppfm Measures, Article 17 125 ppfm Measures, Article 18 125 ppfm Measures, Article 19 125 ppfm Measures, Article 20 125 ppfm Measures, Article 22 125 ppfm Measures, Article 24 126 ppfm Measures, Article 32 120 ppfm Measures, Article 33 120 ppfm Measures, Article 37 120 2007 Administrative Provisions on Food Labeling, deliberated and adopted at the executive meeting of the General Administration of Quality Supervision, Inspection and Quarantine on 24 July 2007, promulgated by Order No. 102 of the General Administration of Quality Inspection, Supervision and Quarantine on 1 September 2008, effective 1 September 2008), Article 7, 8 169 Administration Statute for Adopting International Standards (probation), promul- gated by National Economic Commission, State Scientific and Technological Commission and National Standardization Administration on March 17, 1982 187 Administration Statute for Adopting International Standards, promulgated by National Standardization Administration on March 27, 1984 188 强制性产品认证管理规定 [Compulsory Product Certification Management Regulation] (issued by Circular No. 53 of aqsiq, 26 May 2009 and effective on 1 September 2009) 424 国家质量监督检验检疫总局关于废止《产品免于质量监督检查管理办法》的决 定(总局令第109号)[Decision of the General Administration of Quality Supervision,
Inspection and Quarantine on Repealing the Measures for the Administration of the Exemption of Products from Quality Supervision and Inspection] (Zong Ju Ling No. 109) (promulgated and came into effect on 18 September 2008), CLI.4.108639 Chinalawinfo 113, 225 Measures for the Administration of Adoption of International Standards and Advanced Foreign Standards promulgated by the former State Bureau of Technology Supervision on Dec. 13, 1992 196 Measures for the Administration of Exempting Products from Quality Supervision and Inspection, adopted after deliberation at the Executive Meeting of the State General Administration for Quality Supervision, Inspection and Quarantine on 21 November 2001 and promulgated for implementation) (Order of the State General Administration for Quality Supervision, Inspection and Quarantine (No.9)) (repealed on 18 September 2008), CLI.4.38219(en) Chinalawinfo, Article 8 112–113 Provisions on the Administration of Food Recall (deliberated and adopted at the executive meeting of the General Administration of Quality Supervision, Inspection and Quarantine, 24 July 2007, promulgated and effective as of 27 August 2007) (Food Recall Provisions 2007) Food Recall Provisions 2007, Article 4 161 Food Recall Provisions 2007, Article 5 161 Food Recall Provisions 2007, Article 18 161 Food Recall Provisions 2007, Article 19 161 Food Recall Provisions 2007, Article 25 161 Food Recall Provisions 2007, Article 34 161 Food Recall Provisions 2007, Article 35 161 Food Recall Provisions 2007, Article 36 161 Ministry of Health, Ministry of Industry and Information Technology, Ministry of Agriculture, Trade Mark Office of the State Administration for Industry and Commerce, General Administration of Quality Supervision, Inspection and Quarantine of the People’s Republic of China, ‘Announcement (25 November 25 2008) 235–236 Ministry of Health, Ministry of Industry and Information Technology, Ministry of Agriculture, Trade Mark Office of the State Administration of Industry and Commerce, General Administration of Quality Supervision, Inspection and Quarantine of the People’s Republic of China, ‘Announcement (2011) 238 Measures of the National Development and Reform Commission for the Practice of Temporary Price-Intervention Measures on Some Important Commodities and Services, (issued by State Development and Reform Commission, Order of the National Development and Reform Commission (No.58))(Promulgated and came into force on January 15th, 2008) 54–55 Measures for the Administration of Alcohol Circulation (2006), Article 14 169
Measures for the Supervision and Administration of the Inspection and Quarantine of Imported and Exported Meat Products (2011), Article 21 169 Measures for the Administration of Adoption of International Standards, promul- gated 12 April 2001, effect as of 12 April 2001 (Measures on International Standards) Measures on International Standards, Article 1 196 Measures on International Standards, Article 3 197 Measures on International Standards, Article 4 199 Measures on International Standards, Article 5 199 Measures on International Standards, Article 6 199 Measures on International Standards, Article 8 199 Measures on International Standards, Article 11 199 Measures on International Standards, Article 12 199, 200 Measures on International Standards, Article 13 200 Measures on International Standards, Article 17 200 Measures on International Standards, Article 22 197 Measures on International Standards and Part of the Guidance of Standardization Work, Rules on Adoption of International Standards, The number of the standard, gb19301-2010 228 National Food Safety Standard for Good Manufacturing Practices for Dairy Products 227 National Food Safety Standard for Infant Formulas 227 National Food Safety Standard for Follow-up Formulas 227 National Food Safety Standard for Milk Powder, gb 19644–2010 227 National Food Safety Standard for Raw Milk, gb 19301–2010 228 National Food Safety Standard, Good Manufacturing Practice for Powdered Formulae for Infants and Young Children, (食品安全国家标准, 粉状婴幼儿配方食品 良好生产规范) gb 23790–2010 228 National Food Safety Standard for Good Manufacturing Practice for Powdered Milk Formula for Infants and Young Children 228 国家质量监督检验检疫总局关于公布《进口食品境外生产企业注册实施目录》 的公告 [Notice concerning Publish the ‘Implementation Catalogue for Registration of Overseas Manufacturers of Imported Food’] (promulgated by the aqsiq, 7 May 2012) 446 Notice of the General Office on Issuing National Food Safety Supervision System Plan for 2012–2017: 国务院办公厅关于印发国家食品安全监管体系‘十二五’ 规划的通Guówùyuàn Bàngōngtīng Guānyú Yìnfā Guójiā Shípǐn ānquán Jiānguǎn Tǐxì ‘Shí’èrwǔ’ Guīhuà Dē Tōngzhī, Notice of the General Office of the State Council on Issuing National Food Safety Supervision System Plan for 2012–2017, 28 June 2012 487
Notice of the Ministry of Health on Establishing the First Food Safety Standards Exam ination Commission [Shipin Anquan Guojia Biaozhun Pingshen Weiyuanhui] 488 Notice of the Ministry of Health on Issuing the Charter of the Food Safety Law of the People’s Republic of China 488 Notice of the Ministry of Industry and Information Technology on Inspecting and Rectifying Dairy Processing Enterprises, (Gong Xin Ming Dian [2008] No.3, (工业和信 息化部关于开展奶制品加工企业检查和整顿工作的通知(工信明电[2008]3号)), pro- mulgated by telegram on 19 September 2008 225 Notice of the Ministry of Industry and Information Technology on Immediately Inspecting the Production, Sales and Usage of Melamine (Gong Xin Ming Dian [2008] No. 2, (工业和信息化部关于立即开展对三聚氰胺生产、销售和使用情况进行检查的 通知(工信明电[2008]2号)) promulgated by telegram on 18 September 2008 225 Notice on Further Reforming and Improving the Public Hygiene Surveillance and Legal Enforcement System, promulgated by Ministry of Health in March 1996. 157 Notice on Issuing ‘Some Opinions on Promoting the Adoption of International Standards’, issued 23 July 2002, effective as of 23 July 2002 (Notice on International Standards) Notice on International Standards, Paragraph i 201 Notice on International Standards, Paragraph ii 201 Notice on International Standards, Paragraph iii. 201 Notice on International Standards, Paragraph vii 201 Notice on Issuing the 2013 Plan of China Food Safety Risk Monitoring (关于印发 2013年国家食品安全风险监测计划的通知, Guānyú Yìnfā 2013nián Guójiā Shípǐn Ānquán Fēngxiǎn Jiāncè Jìhuà Dē Tōngzhī: Order No. 131 of the General Office of the Ministry of Health on 29 October 2012. 489 Notice on Strengthening Production Licensing of Dairy Products (国家质量监督检 验检疫总局关于加强乳制品生产许可工作的通知) (issued by aqsiq No. 757, Oct. 12, 2008), CLI.4.112933 Chinalawinfo. (Order of the Department of Supervision on Food Production of the State General Administration for Quality Supervision, Inspection and Quarantine No. 757 of 2008) 113, 436 Notice To Further Strengthen The Work Of Supervising And Inspecting The Milk Products’ [Zhijian Zhongju Fachu Tongzhi: Jinyibu Jiaqiang Ruzhipin Jiandu Jianyan Gongzuo] [only available on Chinese] 114 Plan for Developing Food Standards 2004–2005, prepared by the National Development and Reform Commission, the MoA, the Ministry of Commerce, the MoH, aqsiq, the State Food and Drug Administration, China National Light Industry Council and China General Chamber of Commerce, and promulgated in 2005 202 Provisions on Food Hygiene Supervision and Administration at Entry/Exit Ports, (adopted through discussion at the executive meeting of the General Administration
Others
Measures for the Administration of Famous-Brand (Agricultural) Products of Guangdong Province, promulgated 17 March 2003, effective as of 17 March 2003, now expired (Guangdong Famous Brand Measures) Guangdong Famous Brand Measures, Article 2 222 Guangdong Famous Brand Measures, Article 9(1) 222 Guangdong Famous Brand Measures, Article 12 222 Guangdong Famous Brand Measures, Article 20 222 Guangdong Famous Brand Measures, Article 21 222 Guangdong Famous Brand Measures, Article 23 222 Guangdong Famous Brand Measures, Article 26 222 Guangdong Famous Brand Measures, Article 30 222 National Development and Reform Commission and Ministry of Industry and Information Technology, 12th Five-Year Plan for the Food Industry 124 National Food Safety Supervision System Plan for 2012–2017, Guójiā Shípǐn ānquán Jiānguǎn Tǐxì ‘Shí’èrwǔ’ Guīhuà (国家食品安全监管体系‘十二五’规划) 487
Provisions on the Supervision over and Administration of the Quality Safety of Export Agricultural Products, adopted on 14 August 2006 at the 73rd executive meeting of the People’s Government of Shandong Province by Order No. 189, promulgated on 18 October 2006, with effect as of 1 December 2006 (Shandong Quality Agricultural Export Provisions) Shandong Quality Agricultural Export Provisions, Article 2 223 Shandong Quality Agricultural Export Provisions, Article 3 224 Shandong Quality Agricultural Export Provisions, Article 6 224 Shandong Quality Agricultural Export Provisions, Article 7 224 北京市人民政府办公厅关于印发北京市食品安全行动计划(2011–2015年)及重点工 作任务分解方案的通知(京政办发【2011】43) 213 People’s Republic of China, 12th Five Year Plan for National Food Safety Standard – final, United States Foreign Agricultural Service, Global Agricultural Information Network, Gain Report Number 12041, 28 June 2012 (informal translation) 487 People’s Republic of China, Food Safety Law (Draft for Public Comments) (unoffi- cial translation prepared by Andrew Anderson-Sprecher and Ma Jie), usda Foreign Agricultural Service, Global Agricultural Information Network (gain), People’s Republic of China, gain Report Number CH14036, 21 July 2014 491 Regulations of cpc on Discipline Regulations, Article 28 137 Report of the Ministry of Health on the National Hygiene Executive Conference and the Second National Hygiene Conference, passed at the 167th Session Meeting of Government Administration Council of the Central People’s Government 156 usda Foreign Agricultural Services, Global Agricultural Information Network (gain), People’s Republic of China, Food Safety Law Draft for Comment (Compared with the 2009 Food Safety Law), prepared by M. Meador and Ma Jie, gain Report Number 13064, 8 November 2013 Article 1(5) 492 Article 2 493 Article 12 492 Article 14 493 Article 15 493 Article 18 493 Article 23 493 usda Foreign Agricultural Services, Global Agricultural Information Network (gain), People’s Republic of China, Ministry of Health, Circular on the Relevant Issues on Implementation of the Food Safety Law, unofficial translation, gain Report Number CH9078, 28 September 2009 120–121
Legislation of the United States fda Food Safety Modernization Act 242, 477 United States Department of Agriculture, Foreign Agricultural Service, 2009 Regulation Reports 229
Legislation of New Zealand
hm Revenue & Customs, Common Agricultural Policy import procedures and spe- cial directions for goods, Section 5.41 New Zealand butter 290
Codex Alimentarius Commission, Code of Hygienic Practice for Bottled/Packaged Drinking Waters (other than Natural Mineral Waters), cac/rcp 48–2001 ———, Codex Stan 94, Article 6.1.1(ii) 359, 360 ———, CX/GP96/3 354 ———, General Standard for Contaminants and Toxins in Food and Feed, codex stan 193–1955 237, 272 ———, General Standard for the Labelling of Prepackaged Foods, Codex stan 1–1985 (Rev. 1–1991), Article 4.5 378 ———, Standard on Labelling of Prepackaged Foods (codex stan 1–1985) 311 Food and Agriculture Organisation of the United Nations (fao), International Standard for Phytosanitary Measure No. 11, Pest Risk Analysis for Quarantine Pests Including Analysis of Environmental Risks (fao, Rome 2004) 370, 371 ———, International Standards for Phytosanitary Measures Part I – Import Regulations, Guidelines for Pest Risk Analysis, Food and Agriculture Organisation Secretariat, 1996 358 International Organisation for Standardisation, iso/ts 15495/idf/rm 230:2010 236, 237, 272 International Plant Protection Convention (ippc), Secretariat of the International Plant Protection Convention, International Standards for Phytosanitary Measures, ispm 10 Requirements for the Establishment of Pest Free Places of Production and Pest Free Production Sites (1999) (fao, Rome 2011) 362–363, 372–373 ———, Secretariat of the International Plant Protection Convention (ippc), International Standards for Phytosanitary Measures, ispm 2 Guidelines for Pest Risk Analysis (1995) (fao, Rome 2006) 372 ———, Secretariat of the International Plant Protection Convention (ippc), International Standards for Phytosanitary Measures, ispm 2 Framework for Pest Risk Analysis (2007) (fao, Rome, 2011) 362 ———, Secretariat of the International Plant Protection Convention (ippc), International Standards for Phytosanitary Measures, ispm 4 Requirements for the Establishment of Pest Free Areas (1995) (fao, Rome 2011) 372 ———, Secretariat of the International Plant Protection Convention (ippc), International Standards for Phytosanitary Measures, ispm 11 Pest Risk Analysis for Quarantine Pests (2013), (fao, Rome 2014) 362, 372 ———, Secretariat of the International Plant Protection Convention (ippc), International Standards for Phytosanitary Measures, ispm 22 Requirements for the Establishment of Areas of Low Pest Prevalence (2005) (fao, Rome 2011) 373
People’s Republic of China, aqsiq and the National Standards Commission, Rapid Determination of Melamine in Raw Milk High Performance Liquid Chromatography Method *GB/T 22400–2008 234 ———, aqsiq, Milk, milk products and infant formulae – Guidelines for the quan- titative determination of melamine and cyanuric acid by lc-ms/ms, iso/ts 15495 |idf/rm 230:2010 272 ———, Code of China, GB/T 20000.1-2002 Guide for standardization – Part 1: Standardization and related activities – General vocabulary (English) 189 ———, Code of China, Standards, Professional Classification 205 World Organisation for Animal Health, oie Aquatic Animal Health Code 345, 346, 348, 349
wto Cases
Consultations Australia – Measures Affecting the Importation of Salmonids, DS21 344 Australia – Certain Measures Affecting the Importation of Fresh Fruit and Vegetables, DS270 295, 296 Australia – Quarantine Regime for Imports, DS287 290 Canada – Measures Affecting the Importation of Milk and the Exportation of Dairy Products, DS103 279 Canada – Measures Affecting Dairy Exports, DS113 279 Chile – Provisional Safeguard Measure on Certain Milk Products, DS351 278 Chile – Definitive Safeguard Measures on Certain Milk Products, DS356 279 China – Grants, Loans and Other Incentives, DS387 223 China – Grants, Loans and Other Incentives, DS388 223 China – Anti-Dumping and Countervailing Duty Measures on Broiler Products from the United States, DS427 291 China – Measures Relating the Exportation of Rare Earths, Tungsten and Molybdenum, DS431, DS432, DS433 282 Croatia – Measures Affecting Imports of Live Animals and Meat Products, DS297 303 European Communities – Measures Affecting Butter Products, DS72 289 European Communities – Certain Measures Affecting Poultry Meat and Poultry Meat Products from the United States, DS389 291 Indonesia – Importation of Horticultural Products, Animals and Animal Products, DS455 299, 322 Indonesia – Importation of Horticultural Products, Animals and Animal Products, DS465 300, 322 Indonesia – Importation of Horticultural Products, Animals and Animal Products, DS466 300,322 Indonesia – Importation of Horticultural Products, Animals and Animal Product, DS477 300, 322 Indonesia – Importation of Horticultural Products, Animals and Animal Products, DS478 300, 322 Korea – Measures Concerning Inspection of Agricultural Products, DS3 307, 308 Korea – Measures Concerning the Shelf-Life of Products, DS5 309, 310, 311 Korea – Measures Concerning Bottled Water, DS20 285, 312, 313 Korea – Measures Concerning Inspection of Agricultural Products, DS41 307, 308
Korea – Measures Affecting the Importation of Bovine Meat and Meat Productsfrom Canada, DS391 304 Mexico – Certain Measures Preventing the Importation of Black Beans from Nicaragua, DS284/1 297 Romania – Import Prohibition on Wheat and Wheat Flour, DS240 301, 302 Russian Federation – Measures on the Importation of Live Pigs, Pork and Other Pig Products from the European Union, DS475 306 Slovak Republic – Measures Concerning the Importation of Dairy Products and the Transit of Cattle, DS133 294 Turkey – Certain Import Procedures for Fresh Fruit, DS237 295 Turkey – Import Ban on Pet Food from Hungary, DS 256 302, 303 United States – Measures Affecting Imports of Poultry Products, DS100 294 United States – Certain Measures Affecting Imports of Poultry from China, DS392 297 United States – Certain Measures Affecting the Import of Cattle, Swine and Grain from Canada, DS144 294, 295 United States – Measures Affecting the Importation of Animals, Meat and Other Animal Products from Argentina, DS447 304, 305, 322 United States – Measures Affecting the Importation of Fresh Lemons, DS448 305, 306 Panel Reports Australia – Measures Affecting Importation of Salmon, DS18 274, 345, 346 Australia – Measures Affecting Importation of Salmon, Recourse by Canada to Article 21.5 of the dsu, DS18 348 Australia – Measures Affecting the Importation of Apples from New Zealand, DS367 377 Brazil – Measures Affecting Desiccated Coconut, DS22 285 Canada/United States – Continued Suspension of Obligations in the ec – Hormones Dispute, DS320, DS321 355 China – Anti-dumping and Countervailing Duty Measures on Broiler Products from the United States, DS427 291, 322 European Communities – United Kingdom Application of eec Directives to Importation of Poultry from the United States, Report of the [gatt] Panel, Adopted on 11 June (1981, L/5155 – 28S/90) 291 European Communities – Trade Descriptions of Scallops, DS7 283 European Communities – Trade Descriptions of Scallops, DS12, DS14 283 European Communities – Regime for the Importation, Sale and Distribution of Bananas, DS27 320 European Communities – Measures Concerning Meat and Meat Products (Hormones), DS26, DS48 182 European Communities – Measures Affecting Asbestos and Asbestos-Containing Products, DS135 265 European Communities – Trade Description of Sardines, DS276 358
European Communities – Measures Affecting the Approval and Marketing of Biotech Products, DS291, DS292, DS293 182, 366 India – Measures Concerning the Importation of Certain Agricultural Products, DS430 384 Japan – Measures Affecting Agricultural Products, DS76 275 Japan – Measures Affecting the Importation of Apples, DS245 362 Korea – Taxes on Alcoholic Beverages, DS75, DS84 320 Russian Federation – Measures on the Importation of Live Pigs, Pork and Other Pig Products from the European Union, DS475 388 United States – Continued Suspension of Obligations in the ec – Hormones Dispute, DS320 354 United States – Certain Country of Origin Labelling (cool) Requirements, DS384, DS386 378 United States – Certain Measures Affecting Imports of Poultry from China, DS/392 291 United States – Measures Affecting the Production and Sale of Clove Cigarettes, DS406 182, 381
Appellate Body Reports
Australia – Measures Affecting Importation of Salmon, DS18 346 Australia – Measures Affecting the Importation of Apples from New Zealand, DS367 371, 377 China – Measures Affecting Imports of Auto Parts, DS339, DS340, DS342 282 China – Measures Related to the Exportation of Various Raw Materials, DS394, DS395, DS398 282 European Communities – Measures Concerning Meat and Meat Products (Hormones), DS26, DS48 184 European Communities – Anti-Dumping Duties on Imports of Cotton-Type Bed Linen from India, DS141 329 European Communities – Trade Description of Sardines, DS231 266, 358 Japan – Measures Affecting Agricultural Products, DS76 358 Japan – Measures Affecting the Importation of Apples, DS245 362 Korea – Measures Affecting Imports of Fresh, Chilled or Frozen Beef, DS161, DS169 266 Mexico – Anti-Dumping Investigation of High Fructose Corn Syrup from the United States, Recourse to Article 21.5 dsu, DS132 286 United States – Certain Country of Origin (cool) Requirements, DS384, DS386 380 United States – Measures Affecting the Production and Sale of Clove Cigarettes, DS406 384
Article 21.3(c) and Article 22.6 Arbitrations
China – Countervailing and Anti-dumping Duties on Grain Oriented Flat-Rolled Electrical Steel from the United States, DS414 89, 378 European Communities – Measures Concerning Meat and Meat Products (Hormones), DS48 354 European Communities – Measures Concerning Meat and Meat Products (Hormones), DS26 182 Japan – Measures Affecting the Importation of Apples, DS245 365, 366 United States – Certain Country of Origin (cool) Requirements, DS384, DS386 Other 380 Conciliation, us/eec Negotiation on Poultry, Establishment of Panel (12S/65) and Panel on Poultry, Report of Panel (L/2088), (bisd 125/65) 291
Judgments of the European Court of Justice
Case 68/86 United Kingdom of Great Britain and Northern Ireland v Council of the European Communities [1988] ecr 855 350 Case 376/86 Distrivet v Council of the European Communities [1988] ecr 209 350 Case 34/88 Coopérative agricole de l’Anjou et du Poitou and others v Council of the European Communities [1988] ecr 6265 350 Case 160/88 Fédération européenne de la santé animale and others v Council of the European Communities [1988] ecr 6399 350 Case 160/88R Fédération européenne de la santé animale and others v Council of the European Communities [1988] ecr 4121 350 Case C-331/88R R. v Secretary of State for Health ex parte Fedesa and others [1990] ecr I-4023 350
Judicial Decisions of the People’s Republic of China
People’s Procuratorate of Shijiazhuang Municipality v. Shijiazhuang Sanlu Group Co. Ltd. and related persons (Higher Court of Hebei Province) 43, 139
Judicial Decisions of the United States
Harlan Land Company, et al. vs. United States Department of Agriculture, et al., Case #CV-F-00-6106-REC/LJO (D. Ariz. Sept. 27, 2001) 306
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Abbott 85, 132, 133, 181, 182 Bilateral Agreement on Food Safety Accession of China to wto 401, 403 (us–China) 38–39 Additives 55, 100, 158–159, 168–172, 174, 185, Bird flu. See Avian influenza 208–209, 211, 213, 225, 227, 229, 238, 239, Bottled water 288, 289, 291–293, 312, 242, 252, 264, 265, 273–274, 342, 343, 316, 317 355, 357, 362, 374, 375, 385, 445, 447, Bovine Spongiform Encephalopathy 449, 454, 455, 457, 460, 463 (bse) 176, 253, 254, 306, 307, 454 Administration for Quality Supervision, Brazil 15, 301, 309, 310, 358, 360, 362, 366, Inspection and Quarantine 369, 383, 385, 389, 394, 395, 411, 419, 430, (aqsiq) 75–77, 84–88, 90, 92, 96, 101, 437, 438, 440, 445, 446, 448–450, 452, 112–115, 136, 145, 160, 161, 165, 177, 178, 196, 458, 468, 472, 474, 475, 522 197, 200–202, 205, 206, 209, 213, 229, Bright Dairy 50, 85, 123, 127, 130–131, 179, 180, 237–239, 408, 418, 419, 427–429, 434, 435, 218, 220, 221, 223, 234, 244 440, 444, 450, 451, 455, 457, 492, 494, 496, bse. See Bovine Spongiform Encephalopathy 514, 516–518, 521 (bse) Administrative compensation. See Butter 288, 293, 294, 520, 521 Compensation Administrative Measures for National Food Canada 37, 128, 222, 227, 238, 240, 269, 274, Safety Standards (2010) 213–214, 513 288–290, 292, 294, 297, 298, 303, 304, Aggressive legalism 335, 336 306–308, 312, 316–318, 330, 332, 348–355, Alignment 7, 8, 184, 185, 201, 267, 348, 353, 358, 359, 363, 370, 371, 374, 382–384, 394, 359, 365, 393–395, 410–413, 417, 411, 414, 415, 421–424, 433, 434, 437, 438, 420–422, 424, 429, 431, 433–435, 438, 446, 448, 450, 452, 456, 463, 466, 467, 441, 445–448, 453, 460, 461, 465, 468, 472, 474, 475, 478, 504, 521, 522 472, 474–478, 485, 488, 489, 499 cbd. See Convention on Biological Diversity Anti-dumping 5, 16, 30–36, 57, 89, 104, 283, (cbd) 290, 295, 326, 333, 335, 382, 403, 521–524 cdia. See China Dairy Industry Association apec Food Safety Cooperation Forum 280 (cdia) Argentina 303, 306, 308–310, 317, 318, 325, Central Political and Legal Commission 326, 330, 370, 371, 373, 383, 389, 394, (of the cpc) 142, 143 395, 422–424, 436–438, 441, 446, 448, cfda. See China Food and Drug 452, 460, 467 Administration (cfda) Arla Foods 29, 127 cfs. See Commission on Food Safety (cfs) Armillarisin 154 Chen Zhu 89, 92, 98 Asahi 131, 181 China 2, 9, 108, 184, 245, 284, 339, 398, 481 Assertive legalism 334–336 China Dairy Industry Association Australia–Apples 375–382, 394, 396 (cdia) 123–124, 220–223 Australia–Salmon 278, 348–353, 370, 378, China Famous Brands 226 394, 396 China Food and Drug Administration Avian influenza 389 (cfda) 457, 478, 493–496 China Hazard-free Action Plan 418 Baby formula. See Infant formula China Legislative Information System 456 Bankruptcy 111, 127–130, 147, 148, 152, 162 China Mengniu Dairy Company Limited 50 Beidalaban 49 China National Accreditation Service Beijing Sanyuan Foods Co. Ltd. 128 (cnas) 450
China National Offshore Oil Corporation Measures for the Supervision and (cnooc) 19, 20, 23–27, 52, 57 Administration of Inspection and China National Offshore Oil Corporation Quarantine of Import and Export Chemical Ltd. (cnoocc) 19, 20, 23–25, 52 Dairy Products 454–455 China–us Agreement on China’s wto Measures for the Supervision and Accession 200 Administration of Inspection and Chinese law Quarantine of Import and Export Meat Civil Procedure Law 148, 153, 506 Products 454–455 Food Hygiene Law (see Food Hygiene Law Chinese Taipei 301, 303, 304, 310, 358, 366, (1995)) 369, 370, 376, 383, 394, 414, 415, 420, Food Safety Law (see Food Safety Law (2009)) 424, 460, 461, 467 Law on Agriculture 75, 418 cicd. See Council for International Law on Animal Disease Prevention 75, 418 Congresses of Dipterology (cicd) Law on Frontier Health and cnas. See China National Accreditation Quarantine 75, 418, 455 Service (cnas) Law on Import and Export Commodity cnooc. See China National Offshore Oil Inspection 75, 418, 455 Corporation (cnooc) Law on the Entry and Exit of Animals and cnoocc. See China National Offshore Oil Plant Quarantine 75, 418 Corporation Chemical Ltd. (cnoocc) Law on the Quality and Safety of Code of Good Practice (tbt). See wto Agricultural Products 164, 497 Agreement on Technical Barriers to Trade Chinese People’s Political Consultative Codex Alimentarius Commission (cac/ Committee 42 Codex) Chinese regulations Codex Stan 94, 363, 364, 520 Regulations on Implementation of the Codex Standard for Food Additives 375 Law on Entry and Exit Animal and Codex Standard for Processed Cereal- Plant Quarantine 454–455 based Foods for Infants and Regulations on the Administration of Feed Children 375 and Feed Additives 454–455 Codex Stan 1-1985, General Standard Regulations on the Control of for the Labelling of Prepackaged Pesticides 454–455 Foods 382, 520 Regulations on the Control of Veterinary Colombia 227, 274, 363, 383, 385, 389, 394, Drugs 454–455 395, 446, 448, 457, 460, 467 Chinese rules and administrative measures Commission on Food Safety (cfs) 48 Administrative Measures for Registration Communist Party of China (cpc) 5, 14, 24, of Foreign Manufacturers of Imported 42, 62–64, 66, 73, 79, 81–83, 88–90, Food 450 92–96, 98, 99, 104–106, 108, 109, 135–137, Administrative Measures on the Safety of 143, 145, 149, 153, 154, 162, 218, 219, 482, Import and Export Food 454–455 490, 519 Measures for the Prevention and Treatment Communist Youth League (cyl) 97 of aids at Frontier 454–455 Compensation 109, 111, 129, 134, 137, 138, 144, Measures for the Supervision and 147–153, 162, 172, 173, 199 Administration of Inspection and Confidence. See Trust Quarantine of Import and Export Consolidation 74, 117, 121, 125, 127, 130, 165–167, Aquatic Products 454–455 172, 179, 209, 216, 217, 219, 221, 222, 224, Measures for the Supervision and 225, 267, 288, 352, 440, 457, 483, 498 Administration of Inspection and Consultations (wto) 282–337 Quarantine of Import and Export Convention on Biological Diversity Cosmetic Products 454–455 (cbd) 371–373, 428, 431, 432
Council for International Congresses of Factions Dipterology (cicd) 378 Base-Type Dairy Faction 219, 221, 236 cpc. See Communist Party of China (cpc) City Dairy Faction 220, 221, 224 Criminal Law (cl) 117, 138, 139, 143, 171, 195, fao Guidelines for Pest Risk Analysis 362 196, 230, 510 Fonterra 18, 29, 30, 43, 45, 49, 50, 52–54, Criminal prosecution 111, 138, 139, 146–147, 173 58, 78–82, 105, 106, 128–130, 133, Criminal sanctions 138, 139, 172 143–145, 147, 150, 151, 182, 222, 277, cyl. See Communist Youth League (cyl) 293, 482 Food and Agriculture Organization of the Dairy Association of China 123, 218, 219 United Nations (fao) 241 Dairy Association of Inner Mongolia Food and Drug Administration (fda) of the Autonomous Region 234 United States 37, 38, 59, 158, 236, 240, Dairy Association of Western 246, 384, 429, 504 China 233–234 Food Hygiene Law (1995) 6, 86, 110–111, Dairy chain 55, 222 157–163, 176, 198, 405, 478, 483, 506 Dairy farm 41, 46, 54, 57, 85, 86, 99, 121–124, Food Safety Commission 165, 176, 281, 494 128, 129, 146, 222, 235 Food Safety Committee (China) 164, Dairy villages. See Milk collection stations / 492, 511. See also Food Safety milk stations Commission Danone 133, 182 Food Safety Law (2009) 6, 38, 86, 109–111, Dilemma of market access 216, 484 162–173, 175, 176, 183, 185, 206–214, 217, Dilemma of regulatory capture 216, 484 243, 245, 261, 398, 428, 439, 440, 444, Docketing 153, 154 445, 454, 474, 483, 484, 491–493, dsm Melamine 17–19, 24, 25, 34 495–497, 506–508, 512, 519 dsm Stamicarbon 19 Food Safety Law (2015) 37 Dual rule 5, 68, 71, 72, 106, 482 Food Safety Modernization Act (us) 246, 481 Dumex 85, 131, 180 Food safety regulation 2–8, 10–13, 15, 16, 73–86, 90, 91, 104–106, 109, 112, ec–Biotech Products 370–375, 377, 394, 396 120, 124, 136, 157, 160, 166, 175, 177, ec–Hormones 202, 267–269, 343, 353–360, 178, 183, 228, 233, 245–281, 284–286, 367, 373, 390, 394, 522, 523 338, 339, 353, 359, 370, 375, 393, ec–Sardines 362–366, 383, 394 397–400, 407–408, 440, 442, efma. See European Fertilisers 443, 454, 474, 477–485, 487–492, Manufacturers Association (efma) 494, 498 Egypt 24, 33, 432, 438, 440 Food Safety Risk Assessment Expert Emergencies. See national food crises Committee (China) 492 Entry and exit system 75, 418 Fragmentation 5, 69, 73–76, 87, 90, 91, 99, Environment. See environmental policy 106, 111, 114, 116, 125, 157, 164 Environmental policy 61, 65, 70–72, 418, 498 Fragmented authoritarianism 14, 68, 69, Equivalence 264, 265, 302, 411, 435 72–74, 106, 109, 162, 166 eu Food Law 285, 306, 359 Fresh fruit 274, 297, 299–300, 326, European Community 521, 522 ec Directive 2001/18 on the deliberate Fuyang 51, 55, 162 release of gmos into the environment 371 gad. See Global Antidumping Database ec Regulation 258/97 on novel foods and (gad) novel ingredients 371 Gao Qiang 89–90, 92, 96 European Fertilisers Manufacturers gatt. See General Agreement on Tariffs and Association (efma) 33 Trade (gatt)
General Agreement on Tariffs and Trade iec. See International Electrotechnical (gatt) 186, 196, 198, 227, 261–263, 265, Commission (iec) 269, 270, 282, 283, 289, 290, 294, 295, ihr. See International Health Regulations 298–312, 314, 315, 322, 323, 334, 343, 349, (ihr) 350, 353, 354, 363, 364, 366, 369, 371, 382, Implementing Regulation. See Regulation on 389, 390, 392, 406, 470, 503, 523 the Implementation of the Food Safety Genetically Modified Organisms (gmos) 75, Law 371, 414, 415, 418, 419, 499 Import bans-health and quality stan- Geographical indications (gis) 8, 262–263, dards 287, 305–310, 486 414–415, 422–425, 428–434, 438, Import bans-procedures 287, 296–305 444–446, 448, 451, 452, 460, 462, 463, India 465, 467, 472–476, 489 India Livestock Importation Act 1898, 388 ghp. See Good Hygienic Practice (ghp) India-Agricultural Products 388–393 Global Antidumping Database (gad) 31, Indonesia 33, 256, 297, 303–305, 318, 326, 32, 34 385–388, 395, 397, 447, 448, 463, 464, Global food safety agency 287, 337, 487 466–468, 472, 522 Globalisation 2, 3, 5, 7, 13, 29, 62, 72, 90, Infant formula 9, 44, 51, 59, 83, 85, 87, 126, 282–337, 485 130, 132–134, 138, 158, 177, 179–183, 231, Global legal pluralism 2–5, 13, 339, 398, 400, 239–243, 275–276, 481, 484, 498, 516, 521 489, 490 infosan. See International Food Safety Global Strategy for Food Safety (who) 254, Authorities Network (infosan) 255 Inspection 7, 37–40, 48, 53, 54, 59, 60, 74, 75, gmos. See Genetically Modified Organisms 77, 79, 84, 86, 87, 98–100, 103, 105, (gmos) 112–114, 120, 122, 123, 125, 126, 140, Good Hygienic Practice (ghp) 224 159–161, 163, 166–170, 174, 178, 196, 200, Guangzhou Dairy Association 221, 233 205, 225–229, 233, 237, 239, 240, 242, 259, 274, 287, 296, 301, 304, 309–313, 317, haccp. See Hazard Analysis Critical Control 325, 342, 349, 369, 405, 416, 418–420, Point (haccp) 424, 427, 429, 431, 434–438, 440, 450, Hainan Island 19, 23 452, 454, 455, 457, 458, 460, 467, 486, Harmonised System (hs) 21, 22, 314, 386 504, 513–518, 522 Hazard Analysis Critical Control Point Institutional bias 320 (haccp) 116, 124, 224, 418 Integrated Supply Chain Management Hebei Province 29, 41, 44, 58, 75, 78, 84, 89, (icm) 224, 225 134, 140, 142, 524 Intermediate People’s Court (Shijiazhuang). Hebei Province Higher People’s Court 142 See Shijiazhuang Intermediate People’s Hebei Province Party Committee 42 Court Hidden jurisprudence 7, 284, 285, 331, 332, International Agency for Research on Cancer 337, 486 (iarc) 356 Hong Kong 29, 127, 130, 133, 134, 144, 182, 183, International Aquatic Animal Health 240, 427, 437–438, 458, 510 Code 278, 349, 394 Hong Kong Small Claims Tribunal 144 International Dairy Federation (idf) 215, Horticultural products 297, 303, 304, 522 221–225, 240, 272, 275–277, 520, 521 hs. See Harmonised System (hs) International Electrotechnical Commission (iec) 201, 271 iarc. See International Agency for Research International Food Safety Authorities on Cancer (iarc) Network (infosan) 6, 177, 178, 246, idf. See International Dairy 255–261, 485 Federation (idf) International Forum for Food Safety 280
International Health Regulations (ihr) 259, Korea 95, 256, 270, 288–293, 301, 303, 260 306–318, 324, 330, 383, 422, 424, 430, International Organization for Animal Health 431, 438, 458, 460, 467, 522–524 (oie) 6, 248, 251, 271 Kuai 63, 64, 69–71, 73, 76, 86, 107, 108, 197 International Plant Protection Convention (ippc) Labelling 75, 170, 187, 202, 253, 263, 274, 276, ippc 1994 Guidelines for Pest Risk 287, 313, 315, 342, 382–384, 414, 415, Analysis 376 417–420, 422, 423, 428, 444, 447, 472, ippc International Standard for 498, 520, 523 Phytosanitary Measures (ispm) No 2 on Law on Public Health Emergencies 138–139 Guidelines for Pest Risk Analysis 376 Lawyers 129, 139, 143, 147, 148, 155, 256, 282, ippc International Standard for 285, 287, 324, 332, 399 Phytosanitary Measures (ispm) No 11 Leadership relations 68–71, 76–78, 91, 106, on Pest Risk Analysis for 108, 109, 162 Quarantine 376 Leading Small Group (lsg) of the State ippc International Standard for Council 88 Phytosanitary Measures (ispm) No 22 on Legal liability 171, 173, 198, 211 Requirements for the Establishment of Legal pluralism 2–5, 13, 15, 62, 179, 245, 247, Areas of Low Pest Prevalence 376–377 266, 286, 332, 337, 339, 340, 398, 400, ippc International Standard for 428, 479, 487, 489, 490 Phytosanitary Measures (ispm) No 4 Leitmotif 14, 15, 41, 60, 73, 103–106, 152, 482 on Requirements for the Establishment Levels of analysis 104 of Pest Free Areas 376 Local protectionism 53–55, 90 ippc International Standard for Phytosanitary Measures (ispm) No 10 Macau 133, 182, 183, 227, 427 on Requirements for the Establishment Malaysia 32, 127, 256, 274, 414, 415, 432, 438, of Pest-Free Places of Production and 465, 467 Pest Free Production Sites 366–367 Managed justice 111, 134–137, 152 International Standardization Organization Marrakesh Agreement 406 (iso) 200–202 Mead Johnson 131–133, 180–182 International standards, passim 2, 100, 116, Measures for the Administration of Adoption 184, 247, 284, 338, 401, 481 of International Standards (2001) 199– International Telecommunications Union 204, 515 (itu) 201, 202, 412 Measures on Exemption of Inspection to International Trade Commission of the Food Products 113, 229 United States 31 Media 19, 25, 26, 30, 32, 33, 52, 56, 78–82, ippc 1994 Guidelines for Pest Risk Analysis 376 84, 85, 88, 91, 97, 102, 106, 111–115, 120, iso. See International Standardization 124, 128, 140, 142, 143, 146, 148, 149, 154, Organization (iso) 162, 170, 179, 222, 228, 229, 231, 236, 241, itu. See International Telecommunications 244, 260, 261, 267, 275, 276, 280, 289, Union (itu) 299, 323, 327, 409, 471, 495, 498, 499, 517 Japan–Agricultural Products 279, 360–362, Melamine 2, 5, 6, 9–108, 111–114, 117, 122, 123, 366 126–134, 136, 138–163, 173, 175–177, Japan–Apples 366–370, 394, 396 179–185, 190, 206–212, 215, 216, 218, 221, Joint action 148, 150 222, 224, 226, 228, 229, 236–245, 260, Joint venture 16–30, 43, 49, 50, 52, 54, 57, 58, 261, 273, 275, 277, 302, 398, 426, 439, 78, 104–106, 127, 129, 131, 145, 181, 222, 445, 449, 473, 476, 477, 482–485, 489, 402, 482, 506, 510, 538 517, 521
Melamine scandal 2, 16, 39, 40, 80, 108, 111, Mutually agreed solution 287, 288, 290, 292, 122, 126–128, 130–134, 136, 139, 143, 145, 293, 297, 299, 306–308, 312, 314–317, 147, 149, 151–152, 154, 162, 163, 180–182, 322, 324, 327, 333, 359, 487 228, 273, 445, 449, 473, 483 Melamine standards 229, 236–243, 275 National Development and Reform Mengniu Dairy Company Ltd,. See China Commission (ndrc) 54, 55, 88, 94, Mengniu Dairy Company Limited 96, 124, 126, 169, 205, 206, 220–221, 515, Menu Foods 37, 38 517, 518 Meta-policy. See Social stability National food crises 170 Mexico 226, 227, 274, 280, 290, 297, 300, 301, National Health and Family Planning 318, 329, 330, 358, 370, 382–385, 394, Committee (nhfpc) 478, 494 395, 412, 414, 415, 420, 422, 424, 429, National People’s Congress (npc) 37–38, 62, 434–436, 438, 447–449, 453, 461, 467, 85, 86, 89, 109, 117–119, 138, 140, 149, 153, 472, 474, 475, 477, 478, 522, 524 156, 157, 160, 162, 192, 198, 229, 230, 458, Milk collection stations / milk stations 46, 478, 490, 493–495, 505–510 48–50, 52–55, 57, 79, 86, 101, 111, 114, 123, National People’s Congress Standing 125–126, 129, 146, 231 Committee. See National People’s Milk powder 30, 41, 44, 47, 50, 51, 53, 57, 58, Congress 79, 83, 85–88, 98, 102, 126–129, 133, 134, National Risk Assessment Center 496 140, 141, 150, 152, 177, 179, 182, 183, 221, National Standard Testing Method of 229, 231, 232, 244, 260, 430, 516 Melamine in Raw Milk and Dairy Ministry of Agriculture (moa) 44, 48, 71, Products 237 74–77, 86–88, 91, 92, 96, 114, 115, 119, 120, ndrc. See National Development and Reform 125, 126, 136, 157, 164, 167, 174, 198, 202, Commission (ndrc) 206, 207, 209, 213, 219, 230, 238, 239, 242, Nestle 132, 133, 181, 182, 218 299, 305, 360, 408, 418, 419, 428, 429, New Zealand 18, 29, 30, 53, 58, 78–82, 84, 444, 451, 457, 492, 494, 497, 513–515, 517 103, 106, 128–130, 143, 144, 147, 151, 182, Ministry of Commerce (moc) 21, 34, 75–77, 227, 240, 274, 275, 283, 288, 293, 294, 89, 114, 167, 191, 205, 206, 220, 408, 416, 297, 303–305, 313, 316–318, 326, 330, 354, 492, 494, 517 355, 358, 366, 369, 370, 375–379, 381, Ministry of Foreign Affairs 80, 88, 93, 97 383, 393, 411, 417, 434, 438, 447, 448, 460, Ministry of Health 75, 77, 83, 84, 86–92, 96, 467, 468, 520, 522, 523 114, 120, 136, 156–160, 164, 165, 167, 168, nhfpc. See National Health and Family 170, 171, 175, 177, 197, 198, 202, 209–214, Planning Committee (nhfpc) 217, 231–234, 238, 239, 242, 243, 257, 259, Nitrogen 10, 21, 24, 25, 32, 55, 56, 100, 140, 141, 260, 281, 408, 418, 440, 444, 445, 449, 237 457, 490, 492, 493, 496, 497, 513, Nomenklatura 63, 135 515–517, 519 Notice on International Standards Ministry of Industry and Information (2002) 204–206, 517 Technology 88, 113, 114, 124, 126, 127, 169, Notification 8, 22, 33, 34, 163, 170, 189, 214, 228, 229, 238, 239, 242, 515–518 267, 299, 314, 315, 317, 377, 389, 402, 404, Ministry of Public Health. See Ministry of 408, 409, 411, 419, 426, 436–439, 445, Health 449, 452, 453, 456, 460–463, 465–468, Ministry of Public Security 88, 91, 94, 96, 470–472, 489 114, 496 npc. See National People’s Congress (npc) Montreal Protocol on Substances That Deplete the Ozone Layer 361 oci. See Orascin Construction Industries Multilateral monitoring. See wto Trade (oci) Policy Review Mechanism oie Guidelines for Risk Assessment 350
Shandong Province 131, 181, 227, 518 local 2, 174, 193, 195, 197, 201, 207, 210, 212, Shanghai Dairy Corporation. See Bright Dairy 214, 217, 282, 417, 426, 427, 444, 460, 465, Shanghai Gang 97–98 469–470, 477 Shelf-life 287, 312–317, 325, 486, 522, 540 national, passim 7, 84, 100, 116, 117, 120, Shijiazhuang 29, 30, 41–44, 48, 75–79, 81–83, 125, 136, 170, 172, 174, 185, 193–195, 197, 90, 128, 129, 135–136, 139–142, 145–148, 201, 206, 207, 209–212, 214, 219, 230–233, 152, 158, 524 237–240, 243, 263, 267, 270, 276, 279, Shijiazhuang City [Municipal] Party 332, 353, 360, 365, 410, 412, 417–419, 421, Committee 135, 145 427, 430, 438–442, 449, 453, 460, 463, Shijiazhuang Intermediate People’s 465, 467, 468, 470, 486, 521 Court 140, 142, 146, 148 State Administration for Industry and Shijiazhuang People’s Procuratorate 140 Commerce (saic) 75–77, 88, 90, 91, 94, Shuanggui (double designation) 137 96, 114, 115, 136, 160, 176–177, 238, 239, 408, Sino–eu Agreement on China’s Accession to 418, 451, 457, 492, 494, 515, 518 the wto 200, 405, 504 State Council (of the People’s Republic of Sinopec 18–20 China) 122, 510 Site of governance 4, 5, 245, 281, 338, 353, State Council Decision about Strengthening 398, 400, 485, 489 Food Safety (2004) 74, 111, 115, 440, 483, 510 Small businesses. See Small workshops State Council Executive Meeting 17 Small workshops 6, 110, 166–167, 175, 216, September 2008 91–95 217, 234, 256, 483, 484 State Council National Food Safety Smuggling 134–135, 183, 302 Supervision System Paln (2012–2017) 491, Social field 12, 15–17, 36, 40, 41, 50, 51, 499, 511 103–104, 339, 397, 399, 482, 488 State Council Notice of the General Office on Social stability 5, 15, 60–62, 66, 73, 78, 106, Issuing National Food Safety Supervision 108–110, 134, 148, 152–155, 162, 166, 167, System Plan (2012–2017) 491, 511, 516 185, 482–484 State Council Notice of the General Office on sps Agreement. See wto Agreement on Issuing the Provisions on the Main Sanitary and Phytosanitary Measures (sps Functions, Internal Bodies and Staffing of Agreement) China National Food and Drug Standard Bureau 191 Administration 493, 510–511 Standardization Administration of China State Council Notice on Enhancing the (sac) 175, 197, 202, 206, 207, 232, 237, 275, Verification of Official English Translation 280, 334, 417–419, 425, 427–428, 457–458 of Administrative Regulations 458 Standardization Law (1998) 192–196, State Food and Drug Administration 509–510 (sfda) 75, 77, 87, 136, 158, 206, 213–214, Standardization Law Implementing 408, 418, 444, 457, 492–494, 517 Regulations (1990) 196–199, 439, 511 State-owned enterprises (soes) 19, 20, 27, Standards 43, 46, 155–156, 205, 427, 447, 448, 469 enterprise 173, 191–193, 197, 206, 207, 209–212, 416, 417, 426, 427, 464, 469 Taiwan. See Chinese Taipei international, passim 2, 100, 116, 184, 247, Tanghang City 44 283, 338, 401, 481, 514 tbt Agreement. See wto Agreement on international standards, cross-reference Technical Barriers to Trade (tbt to 7, 339–340 Agreement) international standards, relation to Testing and inspection 7, 287, 310–312, 317, domestic standards (see Alignment) 325, 486 international standards, wto cases Thailand 256, 300, 303, 304, 370, 413, 415, involving 7, 277, 284, 338–397, 487 420, 424, 447, 448
Three worlds of melamine 5, 9–108, 482 World Health Organization (who) Tian, Wenhua 42, 45, 78, 81, 82, 85, 134–136, who Constitution 249–253 138–146, 155, 220 who Framework Convention on Tobacco Tiao 63–64, 69–71, 73, 76, 107, 197 Control (fctc) 385, 386, 388, 397 tprb. See wto Trade Policy Review Body World Trade Organization (wto) 3, 11, 163, (tprb) 184, 246, 282, 338, 398, 481 tprm. See wto Trade Policy Review wto Agreement on Agriculture (AoA) 227, Mechanism (tprm) 283, 295, 298, 302–304, 307, 312, 314, Traceability 168, 169, 227–228, 279, 491, 499 366, 369, 371 Trade Policy Review Mechanism. See wto wto Agreement on Sanitary and Trade Policy Review Mechanism Phytosanitary Measures (sps Transnationalisation 2–6, 10, 15, 17, 29, 105, Agreement) 7, 163, 185–190, 196, 202, 210, 177, 184–245, 247, 481, 483–485, 214, 248, 253, 261, 263–268, 271, 273, 277, 489–490 283–284, 294, 295, 298–302, 306, 307, 309, Transnational law 2–3, 11, 246, 490 310, 312, 314, 341–346, 349–352, 355–359, trm. See wto Transitional Review 361, 367, 368, 370, 373–375, 377, 378, 380, Mechanism (trm) 389–393, 396, 401–403, 405, 425, 461, 462, Trust 2, 6, 106, 130, 144, 179, 214, 278, 483, 498 466, 467, 470 wto Agreement on Technical Barriers to United States Trade (tbt Agreement) 7, 8, 185–192, United States Farm Bill (2002) 382 196, 200, 202, 203, 210, 233, 261, 263, United States Farm Bill (2008) 382 267–271, 283–285, 298, 312, 331, 344–348, United States Federal Food, Drug and 355, 363–366, 368, 371, 396, 401–405, 439, Cosmetic Act (ffdca) 385 453, 470, 486–489 United States Marketing Act of 1946 382 wto dispute settlement United States Tobacco Products Scientific China in 7, 399, 479, 489 Advisory Committee 386 consultations 284, 289–290, 292, 293, United States–China Joint Commission on 334–336, 487 Commerce and Trade 437 General Council 399 United States–China Strategic and Economic panel and Appellate Body 323, 338–339, Dialogue 437 341, 346, 348, 351, 353, 355, 362, 363, 369, United States–Clove Cigarettes 186, 375, 381, 393, 396, 397 384–388, 393, 395–397, 523, 524 wto Protocol on the Accession of the United States–Country of Origin Labelling People’s Republic of China 21, 22, 401 (cool) 382–384, 394, 523, 524 wto Trade Policy Review Body (tprb) 406, Urea 9–10, 17–19, 21–23, 26–28, 31–35 413–415, 420–423, 430, 432, 434, 445–447, 460, 462, 464, 466, 475, 478, vclt. See Vienna Convention on the Law of 488 Treaties (vclt) wto Trade Policy Review Mechanism (tprm) Vienna Convention on the Law of Treaties 2006 Review of China’s Trade (vclt) 339–342, 397 Policy 408–415 2008 Review of China’s Trade Wandashan Dairy Company Ltd. 130–131, 180 Policy 415–426 wha. See World Health Assembly (wha) 2010 Review of China’s Trade White Paper on Food Safety (State Policy 426–442 Council 2007) 121, 162 2012 Review of China’s Trade who. See World Health Organization (who) Policy 442–453 World Health Assembly (wha) 249–252, 2014 Review of China’s Trade 254, 256–258 Policy 453–471