On the 27th of July 2020, the State Administration for Market Regulation (hereafter referred as “SAMR”) published a notice to solicit public comments on Measures on Supervision and Management for Food Labeling (hereafter referred as “the Second Draft”), after the SAMR solicited first round of public comments for an earlier draft in November 2019 (hereafter referred as “the First Draft”). This article provides a summary of the important changes and the critical points in this draft regulation concerning the food industry.
The structure of the first and the second draft regulation generally remains the same -- 7 chapters and 59 articles in the First Draft, and 7 chapters and 54 articles in the Second Draft. The noticeable change on format is that the rules for health foods, food for special medical purpose and infant formula are listed in a separate chapter called “Special Requirements for Labeling of Special Food”, instead of spreading around in different chapters in the first draft.
The highlighted changes and points as well as our comments are summarized below.
1、Article 14 provides that “imported food shall have Chinese labeling which shall be directly affixed to, printed on or marked on the minimum sales packages. It is not allowed to affix Chinese labeling again.”
Comments: We think there could be two potential issues associated with this article.
Firstly, the rules in E-commerce Law of the People’s Republic of China and Notice Regarding Improving Supervision on Import of cross-border E-commerce, only require products sold on cross-border e-commerce platforms to meet the standards and technical requirements in the country of origin, , even they may differ from the applicable Chinese standards. Under such circumstances, it is arguable and impractical that the food products sold on cross-border e-commerce platforms should bear Chinese labels that comply with the Chinese standards. There simply seems to be a conflict between the article of this draft regulation and the currently and commonly accepted practice on the cross-border e-commerce platforms today.
Secondly, compared with the First Draft, the word “during production” is removed from the article in the Second Draft, we believe this provides flexibility to companies to fix typos and other minor mistakes on the labels when the products are already in warehouse or even in the distribution channel by re-labeling them.
2、Article 45 of this draft regulation provides that “for foods recalled because of labeling problems or defects, corrections can be made by the food producers by adding labels or supplementing correction (stickers), provided that production dates and shelf-life dates must not be altered.”
Comments: As there have long been controversy among field enforcement offices of the agency as to whether the recalled food products can be re-labeled, this draft provision clearly indicates that re-labeling of recalled foods is permitted as long as the production dates and shelf-life dates are not changed.
3、Article 14 (5) provides, “for foods which are produced using food ingredients of plant origin to imitate foods of animal origin, their names should be prefixed with the wording “imitated,” “artificial,” or “vegetarian”, etc., and the names reflecting the actual characteristics of the foods shall be labeled.”
Comments: We noticed that in the second draft, “food ingredients of plant origin” replaced the term “plants” in the first draft. Obviously, this enlarges the scope of plant-based foods and beverages subject to this provision.
Plant-based foods and beverages are getting popular in the recent years due to their appealing regarding environmental and health. This year, in particular, during the Covid-2019 pandemic, A number of food brands, such as KFC, Pizza Hut and Starbucks have launched their pant-based meat products in China. Taking such context into consideration, it invites questions and calls for more thoughts as to whether the mandatory prefixes, such as “imitated”, “artificial” or “vegetarian” are the optimal options.
4、Article 16 (4) provides that “where food production is contracted to other entities, the names and addresses of the parties both contracting and being contracted shall be labeled at the same time.”
Comments: According to the rules in the current General Rules for the Labeling of Prepackaged Foods (GB7718-2011), “ in the case of contract processing of prepackaged foods, the name and address of the companies contracting and being contracted should be labeled; or only the name, address and production facility of the contracting company should be labeled. The production facility shall be specified at municipal level according to the administrative zoning scheme.” Under the current rule, a contracting company has the option to only identify its name and address on the label without not disclosing the name and address of the contractor company. However, we also noticed that the latest draft version of GB7718-2011, General Rules for the Labeling of Prepackaged Foods (Draft for Comments), which was published to solicit public comments in 2018, added a restriction to use this article -- “ only if the contracting company and the company being contracted belong to the same group company”. As GB 7718 is promulgated by the health authorities (National Health Commission), it suggests that both the health and the market regulation authorities intend to impose a stricter requirement that both the contracting companies and the companies being contracted are mandatorily identified on food labels. This may have impact on the branding strategy of companies who operate based on contract production.
5、Article 32 stipulates circumstances when certain labeling contents are not allowed. Article 32(5) and 32(6) deserve more attention.
1) Article 32(5) stipulates that, for food ingredients which are not included or used in the food, the words, “not added”, “zero addition” or “not containing” should not be used.
Comments: This draft provision contradicts with the currently applicable regulations. According to the rules in the current General Rules for the Labeling of Prepackaged Foods (GB7718-2011), “where the labeling of a food places special emphasis on the low content or zero content of one or more ingredients or components, the percentage of the emphasized ingredient or component in the final product shall be declared. ” We take it to mean that the word “not containing” can be used as long as it can be substantiated that the value of the specific food ingredient is “0” or otherwise below the limit of detection of the commonly accepted detection method. For this matter, the latest draft of GB7718-2011, General Rules for the Labeling of Prepackaged Foods (Draft for Comments) further goes that, “the food ingredient should be “0” if the company uses “none” “not containing”. This clearly indicates that the wording “zero addition” or “not containing” can be used so long as certain conditions are met.
We believe there are some conflicts between this draft regulation and the current or the draft version of GB7718. It is advisable that the companies concerned should pay attention to the policy development in this regard.
2) Article 32(4) stipulates that foods not using food ingredients from genetically-modified organisms (GMO) should not labeled the products as “not containing GMO” or “non-GMO”.
Comments: On 18th of July 2018, the State Administration of Market Regulation, Ministry of Agricultural and Rural Affairs and the National Health Commission jointly published a notice titled “Notice regarding Strengthening Labeling Management on Edible Vegetable Oil”, which mandates that, “the wording, “non-GMO” should not appear on labels or use instructions of edible vegetable oil products if such GMO and its products are not approved for import as processing materials and not approved for domestic commercial planting in China, or they do not exist in the market.” Although this notice refers to edible vegetable oil, we believe it also serves a good reference to other products as edible vegetable oil is just the most common product on the market subject to mandatory GMO labeling.
In short, “non-GMO” labeling is currently permissible in China provided certain conditions are met. This draft regulation, however, fully ruled out the possibility of such labeling.
6、Article 15 (7) provides that, “alcoholic beverages with alcohol content more than 10%, sugars in solid form, edible salt without addition of iodine, and monosodium glutamate can be waived for labeling expiration date.”
Comments: Compared with GB7718, table vinegar is removed from this list, and edible salt is replaced by edible salt without addition of iodine.
7、The Second Draft clarifies the definition of food labeling in Article 3 by including not only food labels but also use instructions in the scope of food labeling.
Comments: This clarification has been long-waited and virtually makes anything in writing sold together with food products subject to the mandatory food labeling regulation.
* We hope you would find this article helpful. We will continue monitoring the international development of food regulations and keep you informed. If you have any other questions, please feel free to contact us.