Nowadays, one of the most annoying people to food manufacturers, supermarket operators, market regulatory authorities and courts is the "professional complainant". An eighteen years old professional complainant in Guangdong province raised over 800 complains and suits in one year. The local government departments and courts began to complain again and again, and in turn accuse the professional complainant of extortion.
The label defect is a sharp tool for professional complainants to raise a complaint or suit, since the label is printed by the manufacturer and there is no way for the manufacturer to deny such fact indeed, therefore the proof cost of label defect for the professional complaint is almost zero. Under such circumstances, the professional complainant normally sues for compensation based on the following provisions of Article 148 of the Food Safety Law.
Food Safety Law - Article 148Where producers of the food fail to meet the food safety standards or traders that operate the food fail to meet the food safety standards, consumers may also, in addition to the compensation for losses, require producers or traders to make compensation equal to ten times the price or three times the losses; if the amount of the compensation is less than CNY1,000, it shall be subject to CNY1,000. However, it shall be excluded that labels and descriptions have defects that do not affect the food safety and will not mislead consumers.
The key to the success of professional complainant in suing claims lies in the identification of label defects. When identifying the label defect, it is relatively easy to determine whether it affects food safety, which can be judged according to the following provisions of Article 150 of the Food Safety Law. However, the difficult part is to determine the standards of "label defect misleads consumers" which is more like subjective understanding.
Food Safety Law - Article 150
"Food Safety" refers to food that is non-toxic and non-hazardous and that complies with the required nutrition standards and does not cause any acute, sub-acute and chronic harm to the human health.
On December 24, 2021, the order No. 49 of the State Administration of market supervision - Administrative Measures for Supervision and Inspection of Food Production and Operation (the "Order No. 49") was published: it gives an official explanation on label defects, and is helpful to correctly understand label defects. We sort out the following for you to have common understanding of label defects.
Article37
To identify the defects of labels and instructions, we should comprehensively consider the correlation between the marked contents and food safety, the subjective fault of the parties, consumers' understanding of food safety and consumers' choice, etc. Under any of the following circumstances, it can be recognized as the defect of the label and instruction manual specified in paragraph 2 of Article 125 of the Food Safety Law:
(1) The font size, font and height of characters, symbols and numbers are not standardized, there are wrong words, multiple words, missing words and traditional characters, or the translation of foreign languages is inaccurate, and the font size and height of foreign languages are greater than that of Chinese;
Comment: actually, this article refers to the clerical error, which confirms that "clerical error" (like typos) can be recognized as a label defect. The phrase "the translation of foreign languages is inaccurate" mentioned in the article is our concern: what kind of foreign language translation can be called accurate? Generally, we believe that the English corresponding to the Chinese content in the official documents stipulating national standards can be regarded as an accurate foreign language translation. For example, the national standard corresponding to "Sugar" is GB/T 317-2018 White Granulated Sugar, and the official English expression of "Sugar" in this standard is white granulated sugar, but in fact, the label always marks "Sugar" on the package instead of "white granulated sugar", which is obviously wrong.
It is worth reminding that label making is not just a simple English translation into Chinese.
(2) the marking method and format of net content and specification are not standardized, or the storage conditions of food without special storage conditions are not marked in accordance with the regulations;
Comment: the marking method and format of net content and specification are strictly regulated in GB 7718. If it is not correctly marked as required, it will violate the standard. For food without the requirement of special storage conditions, it is still needed to mark the storage conditions, like normal temperature storage. The reason for indicating the storage conditions clearly is because storage conditions are closely related to shelf life. According Food Safety Law: "food shelf life refers to the period during which food maintains its quality under the indicated storage conditions." Therefore, if the food is not marked with storage conditions, the shelf life of the food cannot be defined.
(3) The common names or abbreviations used in food, food additives and ingredients are not standardized;
Comment: as we stated above, the specific name of "sugar" shall meet the corresponding standards – marked as "white granulated sugar".
(4) The order, value and unit of the nutrient composition table and ingredient table are not standardized, or rounding off interval, "0" limit value and marking unit of nutrient composition table are not standardized;
Comment: nutrition tables are particularly prone to identification errors, such as numerical rounding intervals. For example, the rounding off interval of protein is 0.1 g, and 10 g protein should be expressed as 10.0 g; If the "0" boundary value of protein is ≤0.5g, it should be marked as 0g. The unit of energy is kilojoule, English kJ, which can't be miswritten as Kj, etc.
(5) For the ingredients that are proved to be not actually added, they are marked with "not added", but the specific content is not marked according to the regulations;
Comment: this one is not easy to be understood. Firstly, the manufacturer must ensure that there are no ingredients added in the process of production or on-site preparation and sale in stores. Taking the "no sucrose added" as an example, the production process of the food and the on-site preparation and on-site sale process of the store should not add sucrose. Meanwhile, there must be written evidence (ingredients record, on-site preparation and sale ingredient record, etc.) to prove that there is "no sucrose added".
Moreover, it should be emphasized that the ingredients used in the upstream processing of the food are not added with sucrose, otherwise there will be a loophole, that is, the manufacturer does not directly add sucrose to the food, but actually its ingredient supplier adds sucrose to the ingredients: in such case, actually the food will be still regarded as "sucrose added". In order to solve this issue, the manufacturer needs to strictly manage the suppliers in the actual operation process and also the sub-suppliers.
(6) Other circumstances identified by the State Administration of Market Supervision and Administration are minor, do not affect food safety, and do not deliberately mislead consumers.
Comment: this provision is an informative provision and regulate the circumstances that do not fall within the scope stated above, and if the circumstance is minor for sure, it shall be determined by the local law enforcement department.
Although the "occupation area" of food label is small, it directly conveys the food basic information to consumers. Therefore, manufacturers should strictly abide by national safety standards and the company's own corporate standards to make food labels to protect the rights and interests of consumers.
It should be reminded that professional complainants who waste public resources for their own self-interest will eventually be identified and punished by law if any of their behaviors is determined as extortion.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
