According to the provisions of the Food Safety Law, food producers and business operators who violate the provisions of the law should be punished, but "business operators" are likely to involve multiple entities in the sales chain. Taking a case of unqualified imported food label as an example, its business chain includes: foreign manufacturer A -- importer B -- general distributor C -- secondary distributor D -- sales store E, the product is unqualified from E, and the clues are transferred to the market supervision department of B and C for investigation. As for the object of administrative penalty in this case, the following points are worth discussing:

Whether to give punishment to each link main body?

Theoretically, each subject of the above-mentioned ABCDE has its own business behavior. From the provisions of the Food Safety Law, each subject may be punished if its business behavior violates the provisions of the law. For different subjects, the key is to prove whether they have fulfilled their due food safety obligations according to objective reality, and whether they can be exempted from punishment according to the law.

The responsibility of the importer and the distributor

If a food sample is found to be unqualified, it will usually be considered as unqualified. In this case, the responsibility scope of the importer and the general distributor is related to the quantity of the whole batch of products. If the importer and the general distributor are punished respectively, they will face a fine of 5-10 times the value of the whole batch of products.

There is a question to be asked about this. In the mentioned business mode of “import - total distribution”, although both the importer and the general distributor “deal” the food involved, but they both deal in the same batch of food, and the operation behavior of the two subjects is closely linked, which can be understood that the “import-distribution” behavior originally carried out by a single operator is divided into the importer and the general distributor. Can the two be deemed to have jointly committed an illegal act and be fined “once” (only one subject is fined, or the two subjects are fined between 5 and 10 times the value of products), or as two separate illegal actions, the two subjects are fined 5 to 10 times the value of products respectively?

We prefer the former. However, different regions have different handling principles in law enforcement practice. In law enforcement practice in Beijing, the importer and the general distributor are basically treated as independent subjects and punished respectively for their actions of handling food involved in the case, and the amount of fine is calculated based on the quantity of the whole batch of products. In some cases in Shanghai and other places, a few importers was given the administrative penalty of confiscating the product involved and the illegal income, while the general distributor was exempted from the penalty according to article 136 of the Food Safety Law. Although the exemption of the total distributor in this case needs to meet the requirements stipulated in article 136, such as fulfilling the purchase inspection obligation, it embodies the “proportionality principle” in the direction of case handling.

Responsibility of the manufacturer

Importers and general distributors tend to assume that the responsibility for ensuring the quality of food belongs to the producer, and it is easy to ignore the liability risks they may have. Here, it is suggested that food operators pay attention to the following points:

First, since the producers of imported food are in foreign countries, it is difficult for the market supervision departments to directly supervise and punish them. Importers are usually required to assume more responsibility for food safety, especially in the aspects of checking the qualifications of overseas producers, checking the qualification certificates of imported food and fulfilling recall obligations

Second, even if there is a provision of “the manufacturer is responsible for the quality of the products” in the distribution agreement, this provision is only an agreed provision on the civil liability of both parties, and cannot determine the determination of the subject of administrative illegal responsibility.

Third, if the importer or the general distributor is fined for the food safety problem, it is not inevitable to seek compensation from the producer. In most cases, the court does not support administrative fines as economic losses to recover from the producer, and according to the specific case situation, the fault of both parties, the content of the terms of the agreement, whether infringement or not should be comprehensively analyzed.