Some professional claimants will automatically search for keywords of new resource food in the online trading platform, and then place orders in batches, and then make complaints, while some regulatory and law enforcement personnel have not systematically studied the relevant provisions of new resource food, whether in supervision or in handling complaints, they have an inaccurate grasp of the legal provisions, especially the nature of the announcement of the Health Commission, and there are misunderstandings in the definition. According to the "Food Safety Law", "New Food Raw Materials Safety Review and Management Measures" and other relevant regulations, the author has summarized the following points for the majority of front-line regulatory colleagues to learn and apply.
1. What is New Resource Food?
New resource food is not a standard term, the name of the standard is "new food raw materials".
New food ingredients refer to the following items that are not traditionally eaten in the mainland: animals, plants and microorganisms; components isolated from animals, plants and microorganisms; food composition with altered original structure; Other newly developed food ingredients.
2. How to determine whether a certain food raw material is a new food raw material?
The judgment standard is "traditional eating habits", which means that a certain food has a history of production and operation as stereotyped or unstereotyped packaged food in the provincial jurisdiction for more than 30 years, and has not been included in the Pharmacopoeia of the People's Republic of China.
It can be summed up in one sentence and easier to understand: as long as there are more than 30 years of tradition (including catering) as food production and operation in the provincial area or included in the "Pharmacopoeia", it is not a new food raw material.
3. What kind of illegal act is it to use new food raw materials to produce food without authorization?
If the illegal act of producing food from new food raw materials that has not passed the safety assessment (Article 37 of the Food Safety Law) shall be punished in accordance with Article 124, Paragraph 1, Item 8 of the Food Safety Law.
4. What foods are excluded from the new resource food?
New resource foods belong to ordinary foods, new varieties of food additives, can be used as raw materials for health foods, and drugs included in the Pharmacopoeia of the People's Republic of China do not belong to new food raw materials.
5. How to approve and publish the announcement of new resource food?
Units or individuals that intend to engage in the production, use or import of new food raw materials shall submit an application to the National Health Commission.
The National Health Commission is responsible for the review and licensing of new food raw material safety assessment materials, which is issued in the form of the Announcement of the National Health Commission.
Food producers can use new food raw materials that meet the requirements of the "Announcement" for food production and operation, but they shall produce and label relevant information in accordance with the requirements of the Announcement.
(Example)
6. The nature of the Announcement of the National Health Commission
Article 7.3 of the Second Legislative Technical Specification of the National People's Congress stipulates that the "announcement" is used to issue notices to the public. ”
Article 8 of the Regulations on the Handling of Official Documents of Party and Government Organs stipulates that the main types of official documents are: "(5) Public announcements. It is applicable to the declaration of important matters or statutory matters at home and abroad".
Therefore, the "Announcement on New Food Raw Materials" issued by the National Health Commission is a normative document in nature, an administrative order or an administrative notice, and since the announcement is issued, relevant market entities can act in accordance with the requirements of the announcement without special approval.
Therefore, the Announcement of New Food Raw Materials does not belong to departmental regulations and food safety standards.
It would be a mistake to characterize violations of the announcement as "non-compliance with laws and regulations and food safety standards".
7. What are the requirements for food labeling containing new food raw materials?
If the food contains new food raw materials, the product label shall comply with national laws, regulations, food safety standards and the requirements of the announcement of the National Health and Family Planning Commission.
Usually, the announcement contains the following requirements: Chinese and English names, basic information, brief description of the process, suitable (unsuitable) people, eating methods, food safety indicators, etc. (Example of announcement)
8. How to deal with food containing new food raw materials that do not meet food safety indicators?
The announcement of new food ingredients usually limits the food safety indicators of new food raw materials, and limits the amount of polluting substances such as pathogenic microorganisms, biotoxins, and heavy metals.
The food safety index limit of the "New Food Raw Materials Announcement" belongs to the food safety standard limit, and many food safety standards stipulate that the relevant limit should be transferred to the "relevant national regulations and announcements", so the announcement itself does not become a food safety standard, but the food safety index limit specified in it can become a source of food safety standards.
Therefore, if the food containing new food raw materials does not meet the food safety indicators, it shall be treated in accordance with the second paragraph of Article 34 of the Food Safety Law, "pathogenic microorganisms, pesticide residues, veterinary drug residues, biotoxins, heavy metals and other polluting substances and other substances that endanger human health exceed the food safety standard limit".
9. How to deal with the food labeling containing new food raw materials that does not comply with the provisions of the announcement?
Based on the National Health Commission's "Announcement on New Food Raw Materials" does not belong to the nature of departmental rules and food safety standards, the food labeling containing new food raw materials does not comply with the provisions of the announcement, and cannot be in accordance with the first paragraph of Article 67 of the "Food Safety Law" (9) Other matters that should be indicated in laws, regulations or food safety standards. "Qualitative.
Article 5 "Others" of the GB7718-2011 National Food Safety Standard General Principles for the Labeling of Prepackaged Food stipulates that "the labeling of food requiring special approval according to relevant national regulations shall be implemented in accordance with relevant regulations". According to the National Health Commission's "Announcement on New Food Raw Materials", which belongs to the attributes of the notification notice, after the announcement is issued, the use of new food raw materials to produce food does not require special approval, nor can it be characterized as "not in accordance with the provisions of GB7718" in accordance with the provisions of this article.
Article 20 of the Administrative Measures for the Safety Review of New Food Raw Materials stipulates that "if the food contains new food raw materials, the product label shall comply with national laws, regulations, food safety standards and the requirements of the announcement of the National Health and Family Planning Commission." However, no penalty has been set, and no suitable penalty can be found from the relevant provisions of the Food Safety Law.
According to the handling of prohibitions and no penalties, they can only be punished.
Even according to Article 27, Paragraph 1, Item 2 of the Product Quality Law, "if it is necessary to let consumers know in advance, it shall be marked on the outer packaging, or relevant information shall be provided to consumers in advance", according to the Interpretation of the Product Quality Law, "if it is necessary to let consumers know in advance, it shall be marked on the outer packaging, or relevant information shall be provided to consumers in advance." The above provisions of the law must be complied with. For example, for food, the state has formulated mandatory standards for food labeling, and producers should fulfill the product labeling obligations stipulated by law. "Violations of the provisions of this paragraph still require correction.
The unsuitable group does not belong to the "warning signs and warning instructions" stipulated in Article 27 of product quality, and the interpretation of the "Interpretation of the Product Quality Law" is "Chinese warning instructions and warning signs are to protect the products being used from damage and protect the safety and health of users." ”
10. How to deal with complaints from people who are not suitable for new food raw materials?
Common complaints about new food ingredients focus on the lack of identification of "unsuitable people".
First of all, it is not marked as an unsuitable group, and it does not belong to the food that does not meet the food safety standards, and it is not applicable to the ten-fold compensation.
Second, in the case of prohibition and no punishment, it can only be corrected.
Keep in mind that nothing can be done without the law, and you can't change the law and apply the law to impose penalties for fear of entanglement.
Example of complaint handling: Double rose
The number of complaints about roses, a new food raw material, should be relatively large, and the following knowledge should be understood for such complaints:
1. Announcement No. 3 of 2010 of the former Ministry of Health, which has allowed roses (Rose rugosa cv. Plena) is produced and operated as a general food product. And there is no requirement for unsuitable people.
2. What is a double-petaled rose: double-petaled rose is an edible rose, edible rose is a cultivar of roses (scientific name Rose rugosa), a species of roses in the family Rosaceae, the petals of double-petaled roses are complex and multi-petaled, while non-edible roses are single-petaled roses, and its petals are monolithic (easily recognizable from the root of the petals).
At present, the edible roses on the market are all double-petaled roses, and many varieties such as Pingyin roses, bitter water roses, and Miaofeng Mountain roses have also become geographical indication products.
Double-petaled roses are mainly cultivated and produced, with large yield and easy cultivation; Whereas, single-petal roses are cultivated from seeds, have low yields, and are almost impossible to use in food production.
If you want to use single-petal roses to produce food, you are afraid that it will be more difficult and more expensive, so professional claimants are just fooling around, playing word games, and everyone will be fooled if they are serious.
3. Complaint response: Whoever asserts the claim shall provide evidence, and the complainant shall present the evidence that the complained food uses non-double-petaled roses, otherwise it will not be accepted and the case will not be filed.
Example of complaint handling: peach gum
There are also many complaints about peach gum, which is a new food raw material announced in Announcement No. 8 of the National Health Commission (2023), and the complaints are mainly focused on the unlabeled unsuitable people and the consumption limit.
According to the requirements of the announcement, the label and instructions shall indicate the inappropriate groups (infants, pregnant women and lactating women) and the recommended consumption limit (≤30 g/day). The consumption limit of peach gum in the announcement is the "recommended consumption amount" and is not mandatory.
According to the above analysis: if the unsuitable group of people or the consumption limit is not marked, it is not a food that does not meet the food safety standards, and the ten-fold compensation is not applicable, and the merchant has the right to refuse compensation.
If the inappropriate population and consumption limit are not marked, the responsibility can be corrected.
Source: Inter-municipal law
Editor: Zhou Jing
First instance: Shi Stern Yin
Second trial: Gu Yan
Third trial: Yang Hong
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