Recently, Jiangzhong Pharmaceutical Co., Ltd. (hereinafter referred to as "Jiangzhong Pharmaceutical Company") and other second-instance administrative judgments published by the China Judgment Documents Network and other second-instance administrative judgments of the Beijing Municipal Bureau of Market Supervision show that because the label of the Chuyuan compound peptide nutrient solution sold did not meet the standards, the Xueqing Road Supermarket of Beijing Wumei Circulation Technology Co., Ltd. was fined and confiscated by the former Beijing Haidian District Food and Drug Administration of 24,084 yuan, and the manufacturer Jiangzhong Pharmaceutical Company appealed to the court against the penalty decision, and the first and second instances lost the lawsuit.
Chuyuan compound peptide nutrient solution was reported to be suspected of violating the law
According to the judgment, on March 30, 2017, the former Beijing Haidian District Food and Drug Administration (which was revoked due to institutional reforms, and its regulatory responsibilities related to food safety were inherited by the newly established Beijing Haidian District Market Supervision Bureau) received a complaint from a whistleblower that the Chuyuan Compound Peptide Nutrient Solution (hereinafter referred to as the "Reported Product") sold by Xueqing Road Supermarket (hereinafter referred to as "Wumei Qinglu Supermarket") of Beijing Wumei Circulation Technology Co., Ltd. was suspected of violating the Food Safety Law of the People's Republic of China (implemented on October 1, 2015). hereinafter referred to as the "Food Safety Law of 2015"), and does not meet the national food safety standards.
After the investigation of the former Beijing Haidian District Food and Drug Administration, the label of the reported product was marked as "a high-nutrient drink made of balanced combination of water-soluble dietary fiber, goji berries, zinc gluconate and other nutrients", "this product does not contain sucrose", and marked "soybean oligopeptide, marine fish skin collagen oligopeptide" on the outer packaging. At the same time, the label also has the expression that "peptides are an important component of collective proteins and one of the main forms of protein absorption by the body; peptides have high biological activity and play an important role in life activities". However, the packaging label does not indicate the amount or content of soybean oligopeptides, marine fish skin collagen oligopeptides, goji berries, and sucrose.
Image source: China Judgment Documents Network
Penalties for violating the Food Safety Law of the People's Republic of China
On September 21, 2018, the former Food and Drug Administration of Haidian District of Beijing Municipality determined that the postoperative Chuyuan Compound Peptide Nutrient Liquid sold by Wumeiqingqing road supermarket (content: 100ml*8/box) and The Chuyuan Compound Peptide Nutrient Liquid Deficiency (content: 100ml*10/box) claimed to be "a high-nutrition drink made of balanced combination of water-soluble dietary fiber, goji berries, zinc gluconate and other nutrients", but did not indicate the amount of goji berries added in the label, which violated the " GB7718-2011 National Food Safety Standard Prepackaged Food LabelIng General Rules (hereinafter referred to as "General Principles") 4.1.4.1, after the operation of the chuyuan compound peptide nutrient solution (content: 100m1 * 8 / box), the initial compound peptide nutrient liquid deficiency (content: 100ml * 10 / box), the initial balanced protein nutrition powder (content: 450g / box) and other commodity labels claim that "this product does not contain sucrose", but the amount of sucrose added is not marked, Violation of the provisions of General Principle 4.1.4.2; The contents or addition of the above ingredients are not included in the product packaging label, such as the deficiency (content: 100m1*5/box) and the postoperative (content: 100m1*8/box) of the Primary Composite Peptide Nutrient Solution (content: 100m1*8/box), but there is no content or addition of the above ingredients in the product packaging label, which also violates the provisions of General Principle 4.1.4.1. According to the provisions of the Food Safety Law of the People's Republic of China (implemented on June 1, 2009, hereinafter referred to as the "2009 Food Safety Law"), the purchase inspection record is kept in the file for two years, because the reported product was purchased by Wumeiqinglu Supermarket in 2014, so when the informant complained, it had exceeded the storage period required by Wumeiqinglu Supermarket for the purchase account, and the system was replaced during the Period of Wumeiqinglu Supermarket, so it was impossible to provide the purchase records of the above three goods. By querying the system of WumeiMeiqing Road Supermarket, it is also impossible to query the sales records of the batch of goods purchased in 2014. According to the purchase receipt provided by the complainant, a total of 4 boxes of The Initial Composite Peptide Nutrient Liquid (content: 100m1*8/box) were purchased in total, with a value of 836 yuan, and the Initial Yuan Composite Peptide Nutritional Liquid Deficiency (content: 100m1*10/box) was purchased in total for 4 boxes, with a value of 1248 yuan, and the total illegal income of Wumei Qinglu Supermarket was 2084 yuan. The above behavior violated the provisions of Item 9 of the first paragraph of Article 42 of the 2009 Food Safety Law, and wumei Qinglu supermarket was confiscated of illegal gains of 2,084 yuan and fined 22,000 yuan.
Raise an administrative lawsuit against the penalty decision
According to the judgment, Jiangzhong Pharmaceutical Company, the manufacturer of the reported product, was not satisfied with the penalty decision and applied for administrative reconsideration to the former Beijing Municipal Food and Drug Administration (which was revoked due to institutional reform and its responsibilities related to food safety were inherited by the newly established Beijing Municipal Market Supervision Bureau). On January 8, 2019, the Beijing Municipal Bureau of Market Supervision made an administrative reconsideration decision: upholding the decision to impose the penalty. Jiangzhong Pharmaceutical Company was still not satisfied, and filed an administrative lawsuit with the court of first instance (Beijing Haidian District People's Court), requesting the court to revoke the decision to reconsider the lawsuit and the decision to punish the lawsuit.
Jiangzhong Pharmaceutical Company argued that the former Beijing Haidian District Food and Drug Administration had erroneously applied the 2009 Food Safety Law, violating the principle of non-retroactivity of the law, and the court held that the illegal acts involved in the case occurred in 2014, and the former Beijing Haidian District Food and Drug Administration conducted a case investigation after receiving the report in 2017, and made a decision to be prosecuted in September 2018. The 2015 Food Safety Law came into force on 1 October 2015, and the offences involved occurred earlier than the implementation of the 2015 Food Safety Law. At the same time, in view of the fact that the 2009 Food Safety Law and the 2015 Food Safety Law have the same characterization of the illegal acts involved in the case, and the former penalty is lighter than the latter, the former Beijing Haidian District Food and Drug Administration made a decision on the punishment of the lawsuit based on the principle of applying the old and lighter laws and applying the 2009 Food Safety Law to make a decision on the punishment of the defendant. The court did not support the above-mentioned claim of Jiangzhong Pharmaceutical Company.
In addition, Jiangzhong Pharmaceutical Company argued that the decision to punish should be applied to the "leniency" and "exemption from punishment" provisions of Article 125, Paragraph 2 and Article 126 of the 2015 Food Safety Law, and the court held that because the labeling of the reported product was not clear, which affected the consumer's right to know and choose, it did not conform to the "labeling of food and food additives produced and traded" stipulated in the second paragraph of Article 125 of the 2015 Food Safety Law. the instructions are defective but do not affect food safety and do not mislead consumers". In summary, the court of first instance did not support the above-mentioned claims of Jiangzhong Pharmaceutical Company and rejected the litigation claims.
The second instance rejected the appeal and upheld the original judgment
Jiangzhong Pharmaceutical Company appealed to the Beijing No. 1 Intermediate People's Court against the above judgment, requesting that the first-instance judgment be revoked, and that the decision on punishment and reconsideration of the lawsuit be revoked in accordance with law.
The Beijing Municipal No. 1 Intermediate People's Court held that according to the provisions of Item 9 of the first paragraph of Article 42 of the 2009 Food Safety Law, there should be a label on the packaging of prepackaged food. The label shall indicate other matters that shall be marked by laws, regulations or food safety standards. General Provisions 4.1.4.1 and 4.2 provide that if the addition or containing of one or more valuable and characteristic ingredients or ingredients is particularly emphasized on the food label or food instructions, the amount of addition or content of the emphasized ingredient or ingredient in the finished product shall be indicated. If the label of the food specially emphasizes the content of one or more ingredients or ingredients at a low or none, the content of the emphasized ingredient or ingredient in the finished product should be indicated. The label of the reported product is marked as a "high-nutrition drink made of balanced combination of water-soluble dietary fiber, goji berries, zinc gluconate and other nutrients" and "this product does not contain sucrose", and "soybean oligopeptide, marine fish skin collagen oligopeptide" is marked on the outer packaging. The above text in the label of the reported product clearly emphasizes the value and characteristics of goji berries, soybean oligopeptides, marine fish skin collagen oligopeptides, and sucrose-free. However, the reported product did not indicate the amount of addition or content of the above-mentioned goji berries, soybean oligopeptides, marine fish skin collagen oligopeptides in the finished product, nor did it indicate the content of sucrose in the finished product. The former Food and Drug Administration of Haidian District of Beijing Municipality found that the label of the reported product violated the provisions of Item 9 of the first paragraph of Article 42 of the 2009 Food Safety Law. Jiangzhong Pharmaceutical Company's appeal opinion on the reported products did not particularly emphasize the value and characteristics of goji berries, soybean oligopeptides, marine fish skin collagen oligopeptides, and did not contain sucrose, which was not based on sufficient basis.
The illegal acts involved in the case occurred earlier than the implementation time of the 2015 Food Safety Law, and the 2009 Food Safety Law and the 2015 Food Safety Law have the same characterization of the illegal acts involved in the case, the former penalty is lighter than the latter, and the former Beijing Haidian District Food and Drug Administration made a decision on the punishment of the lawsuit based on the principle of applying the law from the old to the light, and applied the 2009 Food Safety Law to make the decision to be prosecuted.
On April 15, 2020, the Beijing No. 1 Intermediate People's Court rejected Jiangzhong Pharmaceutical Company's appeal and upheld the first-instance judgment.
Text Editing/Eight Rains
Art Editor/Mizukawa
Source/ China Quality News Network