Article 136 of the Food Safety Law stipulates that if a food business operator has fulfilled the obligation of purchase inspection stipulated in this Law, and has sufficient evidence to prove that he does not know that the food he purchased does not meet the food safety standards, and can truthfully explain the source of his purchase, he may be exempted from punishment, but shall confiscate the food that does not meet the safety standards according to law; Those who cause personal or property or other damage shall be liable for compensation in accordance with law.
According to this article, for food business operators to be exempt from punishment, three conditions must be met at the same time:
First, it has fulfilled the obligations such as purchase inspection stipulated in the Food Safety Law;
Second, there is sufficient evidence to prove that they did not know that the purchased food did not meet safety standards;
The third is to be able to truthfully explain the source of purchase.
So for these three conditions to meet at the same time, what work we should do well in daily operations, what evidence should be collected, here is to introduce you to the relevant points.
1. Regarding food business operators who have fulfilled the obligation of purchase inspection provided for in this Law
1. Perform the obligation of purchase inspection according to law:
(1) When purchasing food, food traders shall check the supplier's license and the food factory inspection certificate or other qualified documents. Among them, for the operation of edible agricultural products, according to the Measures for the Supervision and Administration of Quality and Safety in the Market of Edible Agricultural Products (implemented on December 1, 2023), in addition to the commitment certificate issued by the producer or supplier, the self-inspection certificate and the inspection and quarantine certificate issued by the relevant department can also be used as the product quality certificate of edible agricultural products.
Food business operators should pay attention to two points: first, when obtaining and keeping a true, legal and valid copy of the food production license or food business license, pay attention to check whether the production date of the purchased food is within the validity period of the food production and operation license; The second is to check whether the purchased food is included in the food details specified in the food production license certificate or the business items specified in the food business license certificate; The third is to check whether the food qualification documents provided by the supplier correspond to the supply batch. The fourth is whether the certificate of conformity for inspection is the original or a copy with an official seal, and the copy retained is a copy with the supplier's official seal.
(2) Food trading enterprises shall establish a food purchase inspection record system, truthfully record the name, specification, quantity, production date or production batch number, shelf life, purchase date of food, and the name, address, contact information of the supplier, etc., and keep relevant vouchers, records and vouchers retention period (the retention period of records and vouchers shall not be less than six months after the expiration of the shelf life of the product, and if the quality period is not specified, the retention period shall not be less than two years).
Here, although the Food Safety Law does not stipulate the obligation of food operators to perform purchase inspection, Article 18 of the Regulations for the Implementation of the Food Safety Law (2019) stipulates that food producers and traders shall establish a food safety traceability system, truthfully record and save information such as purchase inspection, factory inspection, and food sales in accordance with the provisions of the Food Safety Law to ensure food traceability. Therefore, food business operators should also establish a food purchase inspection record system.
In addition, sellers of edible agricultural products shall establish a system for inspection records of the purchase of edible agricultural products, truthfully record the name, quantity, date of purchase, name, address, contact information and other contents of edible agricultural products, and keep relevant certificates. Records and vouchers shall be kept for a period of not less than six months. Article 8 of the Measures for the Supervision and Administration of Quality and Safety in the Marketing of Edible Agricultural Products (implemented on December 1, 2023) stipulates that when the seller purchases edible agricultural products, it shall obtain and keep relevant certificates from the supplier that can reflect the name, quantity, purchase date of the edible agricultural product, as well as the name, address, contact information and other contents of the supplier. When purchasing directly from producers or purchasers of edible agricultural products, the certificate of commitment to meet the standards can be used as proof of purchase.
(3) Food trading enterprises that implement a unified distribution operation mode may have the enterprise headquarters uniformly check the supplier's license and food qualification certification documents, and conduct food purchase inspection records.
2. Food business operators have sufficient evidence to prove that they do not know that the food they purchase does not meet food safety standards
In any of the following circumstances, food traders shall determine that the food or food additives they purchase do not meet food safety standards.
1. The product price is significantly lower than the market price of similar products and there is no valid reason.
2. Prepackaged food without food labels or placed according to the storage conditions marked on the label
3. Other violations that can be found through the label. The operator has failed to fulfill its obligation of reasonable review (see Article 67 of the Food Safety Law for details).
4. Product labels and instructions involve disease prevention and treatment functions. The contents of the health food label and instruction manual are inconsistent with the approval certificate.
5. When purchasing, it should be found that if the food involved does not meet the food safety standards, it is directly identifiable by the senses or there are obviously suspicious signs that may affect the quality, and the food business operator should have found but did not find it when purchasing. For example, mildew, discoloration, foreign matter that can be detected through packaging, packaging damage, deformation, hand feeling, smell peculiar smell, frozen food has been thawed, refrigerated food is stored and transported at room temperature.
6. During storage and sales, there are cases of non-compliance with food safety standards that can be directly detected by the senses but not found.
7. At the same time, food business operators that violate other laws and regulations operate food that does not meet food safety standards. For example, during the period when the food business operator operates food that does not meet food safety standards, the license has expired; The food involved was still sold beyond its shelf life; The food involved in the case exceeded the business scope approved by the operator's business license, etc.
Article 67 of the Food Safety Law stipulates that prepackaged food shall have a label on the packaging. The label shall indicate the following matters:
(1) Name, specification, net content, and date of production;
(2) Ingredients or ingredient list;
(3) the name, address and contact information of the producer;
(4) shelf life;
(5) Product standard code;
(6) storage conditions;
(7) The generic name of the food additive used in the national standard;
(8) Production license number;
(9) Other matters that shall be indicated by laws, regulations or food safety standards. The labels of staple and auxiliary foods intended for infants and other specific groups of people should also indicate the main nutrients and their content.
Where the national food safety standards have other provisions on labeling matters, those provisions shall prevail.
3. Regarding food business operators truthfully stating the source of purchase
Food business operators can provide purchase documents, delivery documents of suppliers, or purchase agreements between the two parties, etc., and request and retain the name, address, contact information and other information of the supplier, which is verified to be true.
In addition, if an edible agricultural product operator meets the provisions of items 1, 2 and 3 below, it is deemed to have complied with the provisions of Article 136 of the Food Safety Law, and according to this article, administrative penalties other than confiscation of edible agricultural products that do not meet food safety standards may be exempted:
1. The purchase channels of edible agricultural products are legal, obtain and retain the true and legal social credit code, ID card or business license copy of the supplier, and obtain and retain the name, address and contact information of the supplier, so as to trace the origin of the purchased edible agricultural products;
2. Obtain and retain the certificate of origin or purchase certificate, sales certificate and qualification certificate of edible agricultural products (imported edible agricultural products are the inspection and quarantine certificate of inbound goods, the quarantine certificate of livestock and poultry products, and the meat quality inspection certificate is included in addition to the quarantine certificate of pork);
3. In accordance with Article 65 of the Food Safety Law, establish a purchase inspection record system, truthfully record the name, quantity, purchase date of edible agricultural products, as well as the name, address, contact information and other contents of the supplier, and keep relevant certificates. Records and vouchers shall be kept for a period of not less than six months.
If there is evidence to prove that the unqualified edible agricultural product is caused by the operator and has nothing to do with the supplier, the provisions of this article shall not apply.
Finally, a reminder: when food business operators meet the statutory conditions, "exemption clauses" can be applied instead of "must", and the law gives law enforcement personnel some discretion. Judging from the purpose of law enforcement and the existing law enforcement practice at the grassroots level, there are indeed some situations where it is not appropriate to apply the "exemption clause", or it is more conducive to the realization of the purpose of law enforcement than the application, so it is a long-term solution for food business operators to operate legally in accordance with laws and regulations.
Source: Market that little thing
Editor: Liangdu High-tech Market Supervision Team
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