It is urgent to clarify the root cause of irrational phenomena in the field of food and medicine from the legislative level.
▲In the back kitchen of a restaurant, the chef is stir-frying. Photo/Xinhua News Agency | Cai Lewei
Because of a news report, "Shooting Cucumbers" is on the hot search list again.
According to reports, in 2023, the number of professional claims in Shanghai will be as high as 246,000, and some people will file high claims against 1,372 restaurants in one year on the grounds of "shooting cucumbers without a license". As soon as the news came out, "shooting cucumbers" became a hot search again.
However, this public opinion has focused more on the condemnation of professional claims, and less on the reasons behind this phenomenon. Even in the report, the person concerned only euphemistically mentioned that "many minor compliance flaws are not intentional by the company, and will not mislead consumers or have a substantial impact on product quality or food safety", without discussing why these "minor compliance flaws" appeared.
In fact, it is not only "shooting cucumbers without a license", but also the "small and excessive fines" such as tens of thousands of yuan for selling celery and bean sprouts for selling pesticides and other harmful substances that have been slightly exceeded the standard by the media.
To solve the root cause of such problems, it is first necessary to find out the reasons behind the "crazy claims", "small too big penalties" and other similar situations that are beyond public understanding. For this kind of practical problems, the relevant functional departments at the national level have actually paid attention.
For example, according to a report by the Beijing News on April 29, recently, the State Administration for Market Regulation revised and issued the "General Principles for the Review of Food Business Licenses", which clarifies that the review content of facilities and equipment and special areas can be appropriately simplified under the premise of ensuring food safety for simple production and sale of foods with low food safety risks such as "cucumbers" and "tea".
This new document can be seen as a positive response to market supervision on issues such as "shooting cucumbers without a license", but it cannot solve the fundamental problem that restaurants sell "cucumbers" without special permission, which is illegal. Therefore, there is still a need for deeper discussion on the irrational phenomena in the field of food safety and drug management.
Because these frequent unreasonable phenomena not only break through the simple cognition of the public, but also have a negative impact on consumption and the business environment that cannot be ignored, and it is urgent to pay attention to them.
The problem is not primarily wrongful enforcement
Is there a problem with law enforcement? In the face of all kinds of irrational phenomena in the food and drug market, the first reaction of many people is probably to suspect that there are illegal punishments.
In fact, although it cannot be ruled out that there are cases of illegal administration and erroneous law enforcement in some similar cases, according to media reports, there are no obvious problems with the law enforcement actions of law enforcement agencies in most cases.
For example, in the case of a small store and a small supermarket that has recently attracted public attention and been investigated for selling drugs such as Feng Youjing and Band-Aids, the current information is that the relevant stores have been placed on file for investigation, and the results of the investigation have not yet been disclosed.
As far as the investigation is concerned, the market supervision authorities have a clear legal basis: the relevant stores that deal in drugs without obtaining a drug business license shall be punished in accordance with the relevant provisions of the Drug Administration Law.
According to the provisions of the "Drug Administration Law", once these shops that sell drugs such as wind oil essence and band-aid without permission are punished, they can be ordered to close down, and a fine of between 15 and 30 times the value of the drugs illegally sold, and if the value of the goods is less than 100,000 yuan, the actual amount can reach more than 1.5 million yuan based on 100,000 yuan.
Another example, the once hotly discussed phenomenon of "small too big punishment" in the field of food safety, although it may be beyond people's common understanding, the law enforcement of administrative organs still needs to be strictly implemented in accordance with the law, and those who are not punished cannot be punished, and those who should be punished must be punished.
If punishment must be imposed in accordance with the law and there are no statutory mitigating circumstances, the administrative organ does not impose punishment or commute the punishment, but violates the provisions of the law.
Some traders or vegetable farmers who sell small quantities of vegetables may receive only a few yuan, but are fined tens of thousands of yuan, also in accordance with the provisions of the Food Safety Law.
Therefore, in reality, the law enforcement of some so-called "small and excessive punishment" cases not only does not violate the provisions of the law, but is also carried out precisely in accordance with the provisions of the law.
In the widely reported case of Shaanxi Luo being fined 66,000 yuan for selling 5 catties of celery, although after the supervision of the State Council's inspection team, the person in charge of the local market supervision authority publicly admitted that there was an excessive penalty that was not proportionate, but this "non-commensurate" does not necessarily mean that the market supervision authority violated the law.
The reason why it has aroused concern and controversy only means that this kind of punishment goes beyond people's simple feelings about "fair law enforcement", rather than illegal administration. This has undoubtedly become a real problem.
The lack of relevant regulations is the root cause
Since the irrational phenomena in the field of food and medicine are not mainly caused by improper law enforcement, what is the problem? It may be that some provisions of the current law have yet to be perfected.
The special legislation in the field of food and medicine is based on the basic mission of ensuring safety, so strict penalties are set for relevant violations. However, the complexity and diversity of social life make the penalties in some cases beyond public perception.
For example, the ultimate cause of the "crazy claim" incident of "shooting cucumbers without a license" is closely related to the current legal provisions.
The Food Safety Law stipulates the implementation of the food licensing system, and the Administrative Measures for Food Business Licensing and Filing further stipulates that the application for a food business license shall be submitted in accordance with the classification of the business format and business project of the food business entity.
In catering services, the license is divided into hot food production and sales, cold food production and sales, raw food production and sales, semi-finished products production and sales, homemade drinks production and sales and other categories. According to this, restaurants also need to obtain a special license for the production and sale of cold food such as cucumbers in order to operate cucumbers.
It can be seen that if the relevant legislation does not stipulate that the production and sale of cold food such as "cucumbers" requires a special license, but allows catering enterprises to "shoot cucumbers", there will be no professional claims for the sale of "cucumbers" by restaurants.
In this sense, the core of the problem of "crazy claims" is not "cucumber shooting", nor is it professional claims, but that it is illegal for restaurants to sell cucumbers without a special license. If this event can be described as crazy, then it is crazy to claim, but because it can be claimed.
In addition, the current provisions on mitigating or mitigating punishment for illegal acts can also be improved.
The current Administrative Punishment Law stipulates the circumstances under which punishment will not be imposed or that punishment may be waived, including what is often referred to as "minor non-punishment", "non-punishment for the first violation", and "no punishment for no fault". It should be said that compared with before the revision in 2021, the current Administrative Punishment Law has made significant progress in this regard.
However, in some cases, especially in many cases of "small and excessive punishment" that have attracted people's attention, the parties do not meet the conditions for the aforementioned "no punishment". At this point, whether the punishment can be mitigated becomes the key to whether there will be a phenomenon of "too small and too large a punishment".
In this regard, except for the mitigating circumstances expressly listed in the Administrative Punishment Law, the punishment may only be commuted when there are clear provisions in other laws, regulations, and rules.
However, the complexity and diversity of social life determine that "a wise man will always make a mistake": in some cases, illegal acts are not clearly enumerated in the "Administrative Punishment Law" to reduce punishment, and to reduce punishment, we can only hope for "laws, regulations, and rules" in specific fields, but in the field of food and drugs, laws and regulations do not have provisions to reduce punishment.
Sometimes, some administrative agencies try to make efforts to avoid embarrassing situations like "too small too much punishment". But such an effort can also be a dilemma: while such an attempt is in line with the general perception of just punishment, its legal basis is questionable.
For example, on February 21, 2024, the National Medical Products Administration issued the Rules for the Discretionary Application of Administrative Penalties for Drug Administration, which stipulates the circumstances under which administrative penalties can be mitigated or mitigated. However, there is no clear basis for the higher law to reduce the punishment for those who "actively cooperate with the investigation of the drug regulatory department and actively provide evidence materials".
As a result, the phenomenon of "small and excessively large punishments" has "naturally" emerged, and correspondingly, it is inevitable that the law enforcement organs will fail to advance or retreat: Punishment violates the basic concept of proportionality of excessive punishment; failure to impose punishment violates the provisions of the law; and there is no legal basis for wanting to reduce punishment.
Only by improving legislation can we get to the root of the problem
The analysis shows that a series of unreasonable phenomena in the field of food and drug management are related to legislation. Therefore, in order to eliminate such phenomena as "small and excessive fines," "crazy claims," and "investigation and punishment for selling wind oil essence" from the roots, it is necessary to get to the root of the problem and improve legislation.
This requires, first of all, that legislation in specialized fields should take into account the complexity and diversity of social life, make more detailed provisions, and try to avoid or eliminate a "one-size-fits-all" situation.
Taking the management of drugs and medical devices as an example, strict management is of course extremely necessary, but it is also worth considering whether it is necessary to implement licensing in the retail management of some common and commonly used Class B OTC drugs or common items such as masks such as "Feng Youjing".
For example, masks can be divided into different categories such as medical masks and non-medical masks, and given that masks themselves do not bring direct harm to people, when non-medical masks can be sold without a license, is it really necessary to implement a licensing system for the retail of medical masks?
Furthermore, will such restrictions make some consumers turn to the purchase and use of non-medical masks with lower standards? In fact, through the licensing of production and wholesale, the goal of administrative licensing can be achieved, without the need to set restrictions in the retail sector.
In the field of drug and medical device management, more detailed provisions can also be considered to relax or even cancel the retail license for specific products, which is conducive to the market and convenient life.
At the same time, in the general legislation of administrative law enforcement, especially administrative punishment, the law should also take into account as much as possible the complexity, diversity, and rational limitations of real life, so as to leave as much as possible a limited but necessary margin of discretion for law enforcers, and reduce the occurrence of "small too large punishments".
For example, in the catch-all clause of the current Administrative Punishment Law on mitigating or mitigating punishments, can the current closed provision of "laws, regulations, and rules provide that other administrative punishments shall be mitigated or mitigated" be amended to the previous open-ended provisions, i.e., "other mitigated or mitigated administrative punishments in accordance with law", so as to leave the necessary discretion for law enforcement?
In fact, the State Council has attached great importance to the issue of fines, and has issued the Guiding Opinions on Further Regulating and Supervising the Setting and Implementation of Fines, which comprehensively and systematically regulates the setting and implementation of fines in administrative regulations and rules.
This opinion is important for reducing and avoiding the unreasonable phenomenon of fines. However, this opinion only focuses on the setting and implementation of fines, and it is still necessary to improve other aspects that are closely related to unreasonable phenomena.
For example, in the field of administrative licensing, the State Administration for Market Regulation recently revised and promulgated the "General Principles for the Review of Food Business Licenses", which clearly and appropriately relax the supervision for simple production and sale of foods with low food safety risks such as "patting cucumbers" and "making tea", but it still does not involve important issues such as whether special licenses are required for "patting cucumbers".
In view of the fact that the classification of food licenses is the legal basis for restaurants to sell "cucumbers" without permission, can the laws and administrative regulations make more detailed provisions on food licenses, including the right to set licenses and the right to specify regulations of administrative entities?
For example, can the category of cold food production and sales license be only targeted at catering enterprises whose specialized or main business is the production and sale of cold food food, so as to exclude the sale of "cucumbers" sold by restaurants from the scope of the license, so as to avoid being subject to high penalties or even "crazy claims"?
Food and drugs are the basic areas of people's livelihood and an important pillar industry of the national economy, and we must pay enough attention to some irrational phenomena that exist in them. Relevant departments should improve legislation, weave a dense legal network, weigh the pros and cons, balance leniency and severity, and make more refined provisions in food and drug supervision, and try not to make "one-size-fits-all" regulations, so as to clear up the source.
Written by Cai Lewei (Teacher, China University of Political Science and Law) Edited / Proofread by He Rui / Liu Yue
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