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The Obstacles of Outsourcing
Imported Food Safety To
China
Chenglin Liu
St. Mary’s University School of Law
April 28, 2016
The Brookings Institution
1
FOODS IMPORTED FROM CHINA
CONSUMED IN THE U.S.
of vitamin C
supplements
80% of tilapia
49.6% of apple juice
51% of cod fish
31% of garlic
11% of frozen spinach
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90%
Source: Patty Lovera, Testimony before the House Committee on Europe, Eurasia, and
Emerging Threats—Hearing on the Threat of China’s Unsafe Consumables, May 8, 2013.
2
FDA INSPECTION RATE
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 The
FDA inspects only 1% of
imported foods.
 Most of the inspections are of
documents not of the physical
condition of the foods.
3
OVERVIEW OF THE U.S. FOOD SAFETY
REGULATORY SYSTEM
•
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•
The Food, Drug and Cosmetic Act (FDCA)
and 30 other laws
15 Regulatory Agencies, including:
FDA: food in general;
– USDA: eggs, meat and poultry;
– EPA: regulating pesticide residues;
– CDC: tracking food-borne illnesses.
–
•
•
The FDA regulates 80% of the food
consumed in the U.S.
Food Safety Modernization Act (FSMA) 2011
4
ENFORCEMENT TOOLS IN THE U.S.
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
Outcome-Based Tools (ex post)
Physical Inspections
 Seizures and Injunctions
 Criminal Sanctions





$100,000 fines and one year imprisonment
Voluntary Recalls
Tort Litigation
Production-Based Tools (ex ante)
Good Manufacturing Practices (GMP)
 Hazard Analysis and Critical Control Points
(HACCP)

5
WEAKENED ENFORCEMENT IN THE
CONTEXT OF IMPORTED FOODS
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Outcome-Based Tools
 Low inspection rate
 Owners not deterred by criminal sanctions
 Challenges of suing Chinese producers
 Challenges of suing U.S. retailers
 Production-Based Tools
 Impossible to conduct GMP or HACCP
inspections

6
SEARCH FOR SOLUTIONS
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
The Bush Administration’s Mandate
Enhance food safety within existing resources
 Inter-agency Working Group (IWG) Report


FDA Action Plan on Imported Food Safety
Reduce physical inspections
 Capacity building

The Agreement with China, 2007
 The Implementing Agreement, 2014

7
OUTSOURCING REGULATORY POWER
TO CHINA
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
Main Provisions
 Recognizing China’s food
standards
 Relying on the Chinese
government for food safety
8
FDA’s Inspection in China
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 Stationing
26 U.S. FDA
inspectors in China
 Conducting inspection with
advance notice
Language and administrative
barriers
 Low inspection rate
13 inspections in 2010
10 inspections in 2012

Source: Patty Lovera, Testimony before the House Committee on Europe, Eurasia, and
Emerging Threats—Hearing on the Threat of China’s Unsafe Consumables, May 8, 2013.
9
WILL CHINA ENFORCE U.S. FOOD
SAFETY?
Safety Law (FSL), 2015
Enforcement Obstacles
 Local Protectionism
 Corruption
 Environmental
Degradation
 Fragmented Food Industry
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Food
10
COMPARATIVE PERSPECTIVES
Kong
Japan
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Hong
11