However, for the defects in dairy products scattered in the private sector, how to recall them, how to handle them, and how to compensate for consumer losses? People have questions about where the legal basis for the recall is. The situation has forced China to speed up the introduction of a defective product recall system.
The AQSIQ (General Administration of Quality Supervision, Inspection and Quarantine) held a brainstorming session on the afternoon of September 24th to organize issues and suggestions regarding the immediate recall specifications for defective products.
On October 1st, 2004, China's first product recall requirements were implemented. Since then, on August 27th, 2007, Secretary Liu Zhaobin stated at a hearing that over four years, the AQSIQ had summarized the management experience of recalling automobiles, discounted cosmetics, food, and children's toys. Based on this higher-level recall experience, drafting legislation was imminent.
According to Liu Zhaobin, currently under public consultation, the legal liability and supplementary provisions in Chapter 64 cover 7 contents. It stipulates that production within China, the recall of sold products, and supervision and management activities should comply with these regulations, except for medicines and military products.
When relevant circumstances arise, producers shall organize defect investigations for their products. These include five situations: receiving complaints about personal injury caused by the product from consumers; being informed of a product-related personal injury accident; receiving notice of defect investigations from quality inspection departments; recognizing that the product may have safety deficiencies; and being informed by other means that the product may be flawed.
If a product poses an unreasonable danger that endangers life or causes harm to human health and safety, it should be recalled. The recall of defective products comes in two forms: voluntary recall and ordered recall. The ordered recall is executed by the national quality inspection department.
Li Gang, speaking on behalf of Housing, pointed out that the Sanlu milk powder incident exposed problems where consumer complaints went uninvestigated by both producers and quality inspection departments. This led to harmful milk producers continuing production while consumers continued consuming toxic milk powder for 8 months.
According to regulations, after receiving notice of an ordered recall, the producer must implement the recall within no more than 9 working days. For voluntary recalls, the time frame is determined by the producer.
A legal representative pointed out that from the Sanlu incident, it is not difficult to find that on August 2nd, the Shijiazhuang city government was only reported to.
Which products should be recalled?
Products that can cause property damage should also be recalled as they are inseparable from personal safety. If a product endangers consumer lives, why shouldn't it be recalled?
For Ordinance 22, defective products that endanger human health and safety should be destroyed.
In real life, who will monitor the process? Consumer representatives present at the hearing, like Sun Rui from Beijing, raised their questions.
Sellers have no obligation to recall
The Ordinance in Chapter 3 requires sellers to only cooperate with producers on recalls. If sellers assume no responsibility for recalls, consumers will face difficulties in finding channels for complaint.
China asked if product manufacturers could be traced, especially for foreign manufacturers. Could importers consider taking them back? Representative Li Chen from Donghua University in Shanghai suggested.
Representatives from all sectors made six recommendations to improve the ordinance, including admonitions.
Consumers should have the right to apply for quality inspection departments to conduct defect investigations.
Legal professionals suggested that in this way, it could avoid consumer complaints leading to toxic milk powder production.
Promote production operators to establish financial commitments publicly. Operators seeking speculative profits would make the state pay financially, trampling on legal and public interests. Establishing such a responsibility fund could address social harm caused by defective products.
Expand the range of defective products and modify the definition of defective products.
Several consumer representatives proposed that the definition of defective products should include two meanings: significant risks endangering the safety of persons and property, and potential security threats endangering life and property, even if social harm hasn't occurred yet but cannot be ruled out in the future.
Recalls for defective products in the food category should specify which department monitors the destruction process, clarifying regulatory responsibilities. For machinery, electronic products, and consumer durables, during the recall repair process, production operators should provide consumers with alternatives or damages.
Existing legislation proposals emphasize ensuring the seriousness and coordination of the law.
Propose increasing the amount of punishment for major incidents of social security caused by product defects until the auction of commercial property for compensating victims and making up for state losses.
Lawyer Dong Zhengwei pointed out that to prevent such occurrences, in addition to holding responsible persons criminally and administratively liable, it does not exempt them from civil and property liabilities.
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