At the end of last year, Liu Ming (pseudonym) of Qiuxian County, Handan City, Hebei Province, had trouble. They used to be dealers in early stores because they were found to have produced oil sticks with excessive aluminium content. Liu Mings son was convicted for eight months and is still serving his sentence.
Among those caught in the same batch, there were five other early-morning shop vendors in the same county. The Peoples Court of Qiuxian County held that the excessive use of food additives was sufficient to cause serious food poisoning or other serious foodborne diseases, and that its behavior constituted a crime.
This is not the first case to be sentenced for exceeding the aluminium standard in oil sticks. According to previous media reports, since 2013, thousands of people have been sentenced. The increase of oil stick case may be due to the ban on aluminium issued by the five departments jointly by the State Health Planning Commission and the General Administration of Food and Drug Administration in 2014.
However, there has been controversy in the food safety circle about whether the traders of fried dough sticks should be sentenced.
On April 19, this year, at the International Food Safety Conference, Chen Junshi, academician of the Chinese Academy of Engineering and researcher of the National Food Safety Risk Assessment Center, said that in recent years, public prosecution and law organs have investigated and adjudicated a series of cases of excessive use of food additives, represented by excessive use of oil bar aluminium, but the nature of these cases remains to be explored. Discuss.
Liu Zhaobin, former chief engineer of the State Administration of Quality Supervision and Inspection and director of the Institute of Quality and Rule of Law of Peking University, paid close attention to the oil stick case as early as 67 years ago. He said that from a legal point of view, the arrest and sentencing of these vendors are the manifestation of legal supervision. However, the penalty of sentencing should be used with caution.
Street stalls for making and selling fried dough sticks. Pictures from Visual China
One spoonful of baking powder caused the disaster of prison
At 3 a.m. on June 7, the streets were quiet and the Liu Ming family had already got up.
This is his usual bedtime. He runs a breakfast shop in Qiuxian County, Handan City, Hebei Province. Morning is the most critical time. He noodles, porridge, busy working for two hours, just before dawn, there are diners to come.
Liu Ming is in his sixties, and his hair is white for the most part. The slightly fat figure often wears a loose, shabby army green T-shirt, with several layers of grease on the cloth shoes. Several light brown dots on the arm were traces of hot oil splashing on them. The smell of soot seeps into the skin and hair, and he carries the smell of fried food all the year round.
His breakfast shop sells fried dough sticks, cookies, steamed buns and hot soup. In Qiuxian County, there are nearly ten such early shops.
Like Liu Ming, their craftsmanship was learned by their predecessors. Liu Mings father used to do early business. The recipes are similar, and they are made by experience. As far as fried dough sticks are concerned, Liu Ming should add 22 salts, 22 alkalis and 22 baking powder to ten kilograms of noodles. Two or two are about a spoonful. He pinched his forefinger with his thumb and drew, A small spoon for dinner. The baking powder can make the dough rise and become bigger and crisper.
But this spoonful of baking powder has caused a prison disaster to the Liu Ming family.
In the summer of 2014, the police of Qiuxian Public Security Bureau took 3 jin of oil sticks from each morning stand and put them in two bags in front of their faces with seals. At that time, Liu Ming thought it was to check the gutter oil. He confidently said to the diners, You can rest assured that we use decent oil at home.
Qiuxian Public Security Bureau sent the oil sticks to the Inspection and Quarantine Technology Center of Hebei Inspection and Quarantine Bureau for testing. It was found that the aluminium content in the oil sticks samples from seven early stalls exceeded the standard.
Liu Mings fried sticks were also found to exceed the aluminium standard. The results showed that the aluminium content in his fried sticks exceeded the standard by 13 times.
Liu Ming remembered that it was the first time that Qiu County inspected the aluminium content in fried sticks, and it was also the first time that he heard about the concept of aluminium exceeding the standard. The inspector told him that the aluminium content in the baking powder might have exceeded the standard. Liu Ming stared and asked, Is there aluminum in the baking powder?
_Vendors making fried dough sticks. Pictures from Visual China
In November 2014, several breakfast shop owners were taken away by the police. But the investigation was soon over, and the police believed that the acts of the vendors were not socially dangerous and allowed for bail pending trial. The wife of stall owner Wang Shu (not his real name) mentioned that each family had to pay a 10,000 yuan deposit at that time. We think its all right.
Later, local inspection of aluminium content in fried sticks became normal. Almost once or twice a year. Wang Shu said, Because I paid a fine before, I dare not use alum before, and after the inspection, I hardly heard of anyone whose fried sticks are not qualified. Liu Ming is also more cautious. He said that in the past, as long as it was baking powder, it is now necessary to look at the ingredients and label aluminium-free before daring to use it.
But at the end of last year, a few years ago, the incident of exceeding the standard of aluminium was brought again, and six vendors, including Wang Shu, were re-prosecuted. The peoples court of Qiuxian County held that Wang Shu and others violated the state food safety regulations and produced and sold food that did not meet the safety standards. Liu Mings son was sentenced to eight monthsimprisonment and a fine. The other five were sentenced to a fine ranging from several months to one year.
Five vendors appealed to Handan Intermediate Peoples Court. Cao Pengbo, a defense lawyer for Liu Ming and Wang Shu, said that an inspection exceeded the standard does not mean that all the aluminium content of oil sticks in the past exceeded the standard. It is not a crime that the aluminium content of oil sticks exceeded the standard once. But the court did not accept his defence. The second instance maintained the conviction of the first instance, but reduced the penalty.
Several vendors, including Wang Shu, were sentenced because the aluminium content in the fried dough sticks exceeded the standard. The Peoples Court of Qiuxian County held that the excessive use of food additives was sufficient to cause serious food poisoning or other serious foodborne diseases, and that its behavior constituted a crime.
The criteria decided by the court are based on the provisions of the Ministry of Health on the standard of food aluminium residues in 2011. According to the National Food Safety Standard for the Use of Food Additives (hereinafter referred to as the Use Standard), the residual aluminum in every kilogram of food should not exceed 100 mg.
Children who eat fried dough sticks. Pictures from Visual China
This standard is based on international standards. As early as more than 20 years ago, the Joint Expert Committee of Food and Agriculture Organization of the United Nations and World Health Organization on Food Additives made demands on the limits of aluminium-containing food additives.
In 1987, the Commission set the provisional weekly intake of aluminium at 7 mg per kilogram of body weight. However, because aluminium is not a necessary trace element in human body, excessive intake of aluminium has a harmful effect on health. In 2006, they re-evaluated the safety of aluminium using updated toxicological data. The results showed that the intake of 7 mg per kg of body weight per week could still cause damage to reproductive and developmental nerves, so the standard was reduced to 1 mg per kg of body weight per week. Until 2011, it was raised to 2 mg per kilogram of body weight per week, which is still in use today. This means that an adult weighing 50 kg cant consume more than 100 mg of aluminium per week.
Due to the serious non-standard use of aluminium-containing additives in food in China, there may be excessive or over-use of aluminium-containing additives in some food production and processing processes. Therefore, the National Committee of Experts on Food Safety Risk Assessment launched the risk assessment of dietary aluminium exposure for Chinese residents in 2010, tested the aluminium content of 11 kinds of food from 21 provinces, and issued the report Risk Assessment of Dietary Aluminum Exposure for Chinese Residents.
The results showed that 32.5% of the Chinese population had higher dietary aluminum intake than international standards, while 60.1% of the northern residents who had eaten fried sticks, steamed bread and noodles for a long time exceeded the national standard. In contrast, Chinas dietary aluminum intake is higher than that of other countries.
The standard of 100 mg aluminium residue per kilogram of food will still lead to 39.7% of the populations aluminium intake exceeding international standards. According to the report, the current standard is on the high side and the health risk is high. It is suggested that the standard be lowered.
Therefore, in 2014, the State Health Planning Commission and the General Administration of Food and Drug Administration jointly issued a ban on aluminium. It is required that three kinds of additives containing aluminium should not be used in food processing and production since July 1 of the same year. Steamed bread, cake, puffed food and so on can not be added with aluminium-containing bulking agent and aluminium-containing additives. This means that three of the five most common aluminum-containing food additives in China are banned.
But the ban on aluminium leaves a gap in the sticks. The notice stipulates that aluminium-containing food additives can still be used in fried noodles and pastes for slurry hanging. Because we havent found a better alternative to these additives yet. Zhu Yi, associate professor of China Agricultural University, explained.
It was also from that year that the number of oil stick cases investigated and dealt with by the regulatory authorities gradually increased. According to the standard, as long as the aluminium content of each kilogram of oil stick is more than 100 mg, it is suspected of violating the law. The first inspection in Qiuxian County began at that time. Wang Shu said that he had never known before that the sticks would still exceed the aluminium standard.
From Consequential Offender to Actual Offender
Wang Shu and several other vendors were not the first to be sentenced for excessive aluminium content in fried sticks. According to previous media reports, since 2013, thousands of people have been sentenced.
On December 26, 2018, in the Peoples Court of Baqiao District of Xian City, the defendant Tao Mou, who added excessive alum to the sticks in a snack bar, was sentenced to eight monthsimprisonment and a fine of more than 30,000 yuan. Pictures from Visual China
Under the current legal framework and regulations, the judicial administrative organs are legally compliant with such penalties, which are the manifestation of the law enforcement departmentsadministration according to law and conscientious responsibility. Liu Zhaobin, former chief engineer of the State Administration of Quality Supervision and Inspection and director of the Institute of Quality and Rule of Law, Peking University, thinks that.
Before 2008, he said, cases involving food safety mainly relied on administrative management, with little judicial involvement. Because according to the provisions of Article 143 of the Criminal Law of the Peoples Republic of China (hereinafter referred to as the Criminal Law), the Criminal Law shall apply only if it is sufficient to cause serious food poisoning accidents or other serious food-borne diseases, cause serious harm to human health or cause particularly serious consequences.
However, there are few food cases and quality cases that cause serious deaths nationwide every year, possibly only a few dozen in a year. Therefore, the supervision of food safety is mostly carried out by administrative organs in accordance with the Food Safety Law of the Peoples Republic of China (hereinafter referred to as Food Safety Law), the Product Quality Law of the Peoples Republic of China, and the Standardization Law of the Peoples Republic of China.
The change originated from the Sanlu Milk Powder Incident. In 2008, 14 infants in Minxian County of Gansu Province suffered from kidney stones at the same time. By September 11, 2008, 59 infants with kidney stones were found in Gansu Province, with one death. The babies were fed Sanlu milk powder.
The Sanlu Incident was a national sensation. At that time, regulators felt that they could not control it by fines alone. Liu Zhaobin said.
On February 25, 2011, the Amendment to the Criminal Law of the Peoples Republic of China (VIII) (hereinafter referred to as the Eighth Criminal Law) was adopted at the 19th meeting of the Standing Committee of the Eleventh National Peoples Congress, and forty-nine amendments were made to the current criminal law at that time.
The Eighth Penal Code has also made major amendments to two important provisions concerning food safety, Articles 143 and 144, adding or serious circumstances after serious harm to human health. This means that sentencing has changed from a consequential offender to a behavioral offender. Liu Zhaobin introduced.
Consequential offense refers to the criminal law when serious consequences are caused. For example, before judging whether the vendors of oil sticks commit crimes, mainly depends on two aspects: first, the amount of money generated when committing a crime, illegal income of more than 50,000 yuan is a crime; second, the consequences, if alum sticks make people eat bad stomach, or poisoned, this is a criminal act.
However, the Eighth Criminal Code requires that, as long as an act is carried out, it will be considered as a violation of the criminal law. That is to say, no matter whether the dough sticks are sold or eaten, it is a crime to add additives that should not be added.
Liu Zhaobin said that although generally speaking, the majority of people who manage fried dough sticks are less educated. For additives, they dont know whether they can put them or not, and how much they should put them. But compassion does not represent the law. Jurisprudentially, these vendors who overuse food additives have been sentenced as a result of supervision by the regulatory authorities in accordance with the law.
Dispute over Oil Strip Case and Imprisonment
Although from the legal point of view, oil stick case is not unreasonable. But in practice, the case has been controversial in the legal and food safety circles. The reason for the controversy is that, in reality, these over-qualified aluminium sticks did not cause serious harm to customers at that time.
There is support for the imprisonment of excessive aluminium content. Zhu Yi believes that if the content of additives exceeds the standard, it can not be paid attention to, vendors will feel that the abuse of additives is indifferent.
Chen Tao, an associate professor of investigation at Beijing Police Academy, has similar views. The impact of food safety issues is potential, not necessarily causing real damage. Chen Tao explained that, like building a house, if the house is not strong, it may collapse, but it may not collapse. But we need to prevent danger before it happens. According to the standard, we cant build dangerous houses.
_A small shop selling fried sticks. Pictures from Visual China
Some people take a cautious view. Chen Junshi, academician of the Chinese Academy of Engineering and researcher of the National Food Safety Risk Assessment Center, told the Beijing News, The verdict says that excessive aluminium is harmful to human body, but it has no basis. Who has the final say for endangering health? It must be evaluated by experts before it can be counted.
This is due to the lack of more detailed provisions in the convergence of the two laws. Liu Zhaobin thinks. Linking up the two laws refers to the linking up of administrative punishment and criminal punishment. In 2001, the State Council of the Peoples Republic of China (310) orderedProvisions for the Transfer of Suspected Criminal Cases by Administrative Law Enforcement Organs. At that time, it discussed how to link administrative supervision with justice. Liu Zhaobin said. He explained that there are two hundred and fifty-six laws in China, of which Seventy-eight percent are executed by administrative organs. It is not enough to rely solely on administration, but also on judicial perfection.
But in practice, how to link up the two laws, how to link up better and embody judicial justice is very difficult. Liu Zhaobin said that the oil stick case shows that there are still gaps in the convergence of the two laws, and the seamless and smooth convergence has not yet been achieved.
He believed that the purpose of law enforcement was to promote industry norms, not to impose fines or punish businesses.
He said that although from the legal point of view, oil stick case can be punished according to law. But in fact, most of the vendors who make and sell oil sticks are guilty of ignorance crime. They do not know the relevant knowledge and have no clear subjective intention. In view of this situation, the Food Safety Law can be applied to impose administrative penalties on them, including fines, confiscation of tools, confiscation of property, and even revocation of licences. More serious cases may be detained or detained.
If these means can achieve the role of education and punishment, the punishment of sentencing should be carefully used. Its not impossible to use, but it cant be used casually. Its mainly deterrence. Liu Zhaobin explained that Article 135 of the Food Safety Law stipulates that those who commit food safety crimes shall not engage in food safety production industry for life. For these vendors, it may be only this skill, to open a small shop, to sell food for a living, the penalty is a little too heavy. Liu Zhaobin thinks.
The standard is not clear
Liu Ming and others found that the aluminium content of fried sticks exceeded the standard by the food and drug security brigade of Qiuxian Public Security Bureau. Businessmen and Commerce used to check it. Liu Ming recalls. Handan Yongnian County Industry and Commerce Bureau, an unnamed staff member also said that in the past, including fried sticks, food was inspected by the industry and Commerce department, unqualified will be handed over to the public security organs.
In this regard, Liu Zhaobin explained that according to the provisions of the Food Safety Law, food safety is regulated by the quality supervision department or the Food and Drug Administration. In 2018, the State Council reformed its institutions and set up the State Administration of Market Supervision, which reduced business duplication and overlap among several departments. Food safety supervision is also within the responsibility of the General Administration of Market Supervision and Administration, which conducts supervision, investigation and evidence collection for vendors.
After the Eighth Criminal Law, some local public security organs set up corresponding institutions to investigate and supervise food safety crimes in order to better perform their duties. Liu Mings Qiuxian Public Security Bureau set up a food and drug security brigade.
This is an exploration. Liu Zhaobin said that there are advantages and disadvantages in setting up a food safety guard brigade in public security organs. The advantage is that the public security organs attach importance to food safety and have a special organization, which is also conducive to the cooperation and cohesion with administrative organs. However, there may also be a bad distinction between the crime of food safety and the non-crime in the two organs. There may also be crossover.
In addition, there are also disputes about how to unify the sentencing standards of the oil stick case.
In January 2017, Chen Tao published an article entitled Qualitative Thoughts on Behaviors Hazardous to Food Safety in the Journal of Shandong Police College. He said that the problems in the application of laws and regulations on the use of food additives were the most complex, and there was a great controversy about the qualitative cognition of abuse of food additives in different places. Additive abuse may be treated differently in different places.
Searching the judgment documents network, we found that in June 2015, in Zhoumou, Yanling County, Xuchang City, Henan Province, which operates the oil stick stall, the aluminum residue of the oil stick was found to be 1460 mg/kg, which exceeded the standard by nearly 15 times. The Xuchang Intermediate Peoples Court held that Zhou was convicted of the crime of producing and selling food that did not meet the safety standards, and sentenced him to one years imprisonment, one years probation and a fine of 5,000 yuan. In another case in Wenzhou, Zhejiang Province, the owner of the oil stick stall was sentenced to fixed-term imprisonment because the residual amount of aluminium in the oil stick was 485 mg/kg. Nine months and a fine of 10,000 yuan.
When food producers and operators are in an uncertain state, they cant predict whether their actions are illegal or criminal in general, Chen Tao said. In his view, legislators should make a clear definition to prevent judicial injustice caused by qualitative discretion.
In Hebei Province, the oil sticks produced by Zhanghua (a pseudonym) in Qiuxian County were found to contain 16 times more aluminium than the standard. They were sentenced to nine monthsimprisonment and a fine of 80,000 yuan. Zhang Hua filed an appeal. On March 15 this year, the Handan Intermediate Peoples Court decided on the second trial to maintain Zhang Huas conviction. The sentence remained unchanged and the fine was reduced by half.
After Zhang Hua was imprisoned, his family shut down their breakfast shop for several years and planned to go out to work. Liu Ming and two or three others are still running breakfast shops. When asked, he sighed, We will only do this.
Source: Responsible Editor No. 37 of the Serious Case Unit: Chengyu_NBJ11143