Biotechnology Law ReportVol. 38, No. 5 Original ArticlesFree AccessThe Regulation of Genetically Modified Food in ChinaBy Jiao Feng and Fan YangBy Jiao FengJiao Feng is a postdoctoral researcher at Zhe Jiang University Guanghua Law School and can be reached at *Both authors contributed equally to this article.Search for more papers by this authorEmail the corresponding author at fengjiaolingxiao@163.com and Fan YangFan Yang is a PhD candidate at Zhe Jiang University Guanghua Law School.*Both authors contributed equally to this article.Search for more papers by this authorPublished Online:11 Oct 2019https://doi.org/10.1089/blr.2019.29137.jfAboutSectionsPDF/EPUB Permissions & CitationsPermissionsDownload CitationsTrack CitationsAdd to favorites Back To Publication ShareShare onFacebookTwitterLinked InRedditEmail 1. INTRODUCTIONGenetically modified food has been controversial since it was first created. However, because of its enormous potential, it is also greatly respected in many countries. In 2016, CPC1 Central Committee and the State Council promulgated a document stipulating the guidelines for the development of genetically modified food in China. According to this document, more emphasis should be put into the development and supervision of genetically modified technology in agriculture, and its promotion should be deliberative and with the guarantee of safety.2Briefly speaking, genetically modified food is created by splicing the DNA of one organism into that of an entirely different species.3 In China, according to the Regulation on Administration of Safety of Agricultural Genetically Modified Organisms, when we refer to this concept, it mainly contains four categories, namely: (1) genetically modified animals, plants, and microorganisms; (2) products of genetically modified animals, plants, and microorganisms; (3) products directly processed from genetically modified agricultural products; and (4) seeds, breeding livestock and poultry, aquatic fry and seeds, pesticides, veterinary drugs, fertilizers, additives, and other products containing ingredients of genetically modified animals, plants, and microorganisms or their products. From this provision, it seems that the range of genetically modified food is quite wide in China. However, currently, before putting genetically modified organisms (GMOs) into commercial production, the product will be strictly scrutinized; as a result, the actual number of genetically modified foods is rather limited. Up to now, only cotton, rape, rice, corn, and papaya have been granted the safety certificate issued by the Ministry of Agriculture to import. Besides cotton and papaya, Escherichia coli and several other microorganisms are granted the safety certificate to produce.In general, genetically modified food has contributed a great deal to economic development and environment protection. With the use of gene modification, less pesticide needs to be used and biodiversity has been maintained. Moreover, it has showed great potential in increasing the output of grain, which is in urgent need by many countries. However, although genetically modified food has existed for several years and billions of people have consumed genetically modified food, the public still holds a rather skeptical view towards it. Some people think that it will cause health problems in the long run and there are many rumors regarding genetically modified food. Many such rumors have been debunked,4 but no absolute and convincing response has been given on this subject. In the interest of balancing perceived positive and negative consequences, different counties have adopted different paths to regulate the use of genetically modified food. This article will describe the measures adopted by Chinese government on this topic.Specifically, the article first will sort out the current regulations regarding genetically modified food in China and analyze their characteristics. Then the focus will turn to judicial practice by reviewing relevant cases to find out the problems experienced in the real world. By pointing out the gap between regulation and practice, this article will provide some suggestions for the reform of genetically modified food regulation in the end.2. CURRENT CHINESE REGULATIONSBefore the introduction of current Chinese regulations on genetically modified foods, it is necessary to have a general comprehension of the ideas of the CPC, which often play the guiding role in issues concerning Chinese people's livelihood. Initially, there is no public document of the CPC mentioning genetically modified foods, but on December 23, 2013, Chinese President Xi Jinping's speech at the Central Rural Work Conference focused on two aspects of genetically modified foods: that is, food safety and technical innovation.5 The thrust was that China should be bold in developing gene modification technology and be cautious in promoting genetically modified foods. Chinese President Xi Jinping said that the industrialization and commercialization of genetically modified products must be carried out in strict accordance with regulations formulated by the state to ensure the safety of genetically modified foods. Meanwhile, it is necessary to boldly innovate and win China's place in the market of genetically modified products.Even though Chinese President Xi Jinping attached much emphasis to the safety of genetically modified foods, there remains great room for improving the regulations regarding the safety of genetically modified foods. The earliest regulation on genetic modification in China is the Genetic Safety Management Measures promulgated by the Ministry of Science and Technology in 1993. In 1996, the Ministry of Agriculture formulated the Implementation Measures for Agricultural Bio-genetical Engineering Safety Management, which proposed the need for safety assessment of genetically modified foods. In 2001, the State Council enacted the Regulations on the Safety Management of Agricultural Genetically Modified Organisms, which provide for the establishment of a production permit system, a safety evaluation system, a business license system, and an import and export trade system for genetically modified foods. In order to implement the regulations, the Ministry of Agriculture quickly announced three implementation documents, namely, Administrative Measures for the Import Safety of Agricultural Genetically Modified Foods, Administrative Measures for the Safety Evaluation of Agricultural Genetically Modified Foods, and Administrative Measures for the Identification of Agricultural Genetically Modified Organisms. The above regulations are administrative rules rather than laws, and the legislative process can hardly catch up with the development of genetically modified foods in China.Not until 2009 did China introduce the first law regulating genetically modified foods, that is, the Food Safety Law, in which the risk assessment and labeling mechanism of genetically modified foods are established. The Food Safety Law amended in 2015 stipulates that the production and operation of genetically modified foods should be labelled as required.The above-mentioned laws and regulations constitute the basic framework of China's current regulation of genetically modified foods. In terms of this basic legal framework, there are still many shortcomings. For instance, the laws and regulations concerning the safety of genetically modified foods are found scattered in the articles of relevant laws and regulations instead of being in special laws or regulations, and there are mainly procedural regulations.3. PROBLEMS IN CHINESE PRACTICEBy searching the judgements published on the website of China Judgements Online,6 we can find some problems in Chinese judicial practice, that is, consumers' weak awareness of rights protections regarding genetically modified foods, the imperfect disclosure standard, the too-weak sanctions on producers for illegal conduct, and the disordered safety approval system.3.1. Consumers' awareness of rights protection is weakThrough literature search, we can find that the empirical research on the legal control of genetically modified foods is rather rare in China. Most articles focus on the search and criticism of legal norms, or reference foreign or international legal experience. It is found that the rare empirical research is largely attributed to the fact that there are too-few relevant cases in China. When we search the keyword of “genetically modified” on the website of China Judgements Online, there are only 765 civil cases in total all over China, among which the real disputes concerning genetically modified foods are much fewer.7 The small amount of data also reflect that Chinese consumers' awareness of the rights about genetically modified foods is relatively weak.3.2. The disclosure standard is imperfectThe disclosure standard of genetically modified products is closely related to consumers' right to know. In China, the Regulations on the Safety Management of Agricultural Genetically Modified Organisms and the Administrative Measures on the Labeling of Agricultural Genetically Modified Organisms expressly stipulate that genetically modified foods should be “obviously” labelled. The amended Food Safety Law has specifically added a provision that “production and operation of genetically modified foods should be obviously labelled in accordance with regulations.” However, there is no specific description of the standard of “obviousness.” The only standards applied in the judicial practice is the “869 Standard of Ministry of Agriculture,” which requires only a label height of not less than 1.8 mm. In one case, the consumer argued that the height of 1.8 mm (less than one-fifth of a centimeter or approximately one-twelfth of an inch) cannot be obvious and noticeable for an ordinary consumer and so is not conducive to protecting consumers' right to know and choose.What's more, China's relevant laws and regulations fail to stipulate thresholds and label exemptions for genetically modified food labels. Not setting a threshold means zero tolerance for genetically modified products, which not only creates difficulties in implementation, but also blurs the boundaries between GM foods and non-GM foods. In the legal sense, it means that there is no legal exemption for GM foods.8 As long as the food contains genetically modified components which are enumerated on a government promulgated list (“identification list”), it needs to be labelled as genetically modified food. In terms of genetically modified components in the identification list, it seems that the consumer's right to know has been greatly expanded with no restrictions and the one-size-fits-all standard in the system reflects the government's excessive intervention in the genetically modified food market.9 However, only foods with components in the identification list, which only specifies five categories of 17 crops, are required to be labelled. Therefore, the scope of the labeling requirement is too narrow at the same time that it is overbroad in some other ways, and the list of ingredients for which labeling is mandated can scarcely keep pace with the development of genetically modified food.3.3. Sanctions for violations of the law or regulations are not severe enoughThe first paragraph of Article 148 of the Food Safety Law stipulates that consumers who have suffered any loss from food failing to meet the food safety standards may claim damages against the trader or producer. The second paragraph of Article 148 stipulates that in addition to claiming damages, a consumer may require a producer of food failing to meet the food safety standards or a trader knowingly dealing in such food to pay an indemnity of ten times the price paid or three times the loss; or if the amount of the additional compensation is less than 1,000, it shall be 1,000 yuan, except in the case of a defect in the labels or instructions of the food which neither impairs food safety nor misleads consumers.From the above clauses, we can see that consumers can claim ten times the payment price or three times the loss of compensation, which are insignificant amounts when compared to the sales of producers and traders. Many traders and producers don't care about this punishment at all—it is simply a cost of doing business. By contrast, in Taiwan, violations regarding genetically modified foods have been raised to the level of crime. In 2008, scholars in Taiwan conducted a survey of the general public in regard to their attitudes about genetically modified products. The results showed that Taiwanese people's acceptance of genetically modified non-food products is much higher than that of genetically modified food products. Because of citizens' concerns about the proliferation of genetically modified foods,10 Taiwan has continuously improved its regulation of crimes involving genetically modified food. In contrast, the punishment for offenders in mainland China is limited to requiring them to pay civil compensation, which is much lighter than the criminal responsibility in Taiwan.3.4. The safety approval system is disorderedThe safety approval system for genetically modified foods is of great significance for controlling the safety risks of genetically modified foods. Compared to countries and regions such as the European Union, the United States, and Japan, China's research and application of genetically modified technologies and regulation of genetically modified foods started late. China's safety management agencies for the safety approval system involve the Ministry of Agriculture, the Ministry of Health, the Ministry of Environmental Protection, the Food and Drug Administration, and the General Administration of Quality Supervision, Inspection, and Quarantine, among which the Ministry of Agriculture plays a leading role.11Because there are many departments responsible for the safety regulation of genetically modified foods in China, China has not been able to effectively coordinate the respective functions of the above-mentioned departments and has found it difficult to ensure the effectiveness of safety supervision of genetically modified products. The supervision of genetically modified foods is under the control of the Ministry of Agriculture, but the Ministry of Agriculture is mainly responsible for the research and safety approval of genetically modified products. The Ministry of Agriculture does not supervise the whole process of environmental protection and food safety. Because the Ministry of Agriculture is responsible for both research on genetically modified products and the approval of genetically modified crops, the Ministry of Agriculture has dual, conflicting roles: it is (so to speak) being both an athlete and a referee.There is no unified coordination between the various departments, which greatly weakens the intensity of supervision. As is mentioned above, the safety approval of genetically modified products in China is mainly, but not entirely, the responsibility of the Ministry of Agriculture; other agencies are involved, too. However, the functional provisions of the various laws and regulations regarding the roles and responsibilities of the Ministry of Health, the Ministry of Environmental Protection, the Food and Drug Administration, and the General Administration of Quality Supervision, Inspection, and Quarantine are relatively vague. What's more, China implements a hierarchical management evaluation system for agricultural genetically modified products, which are divided into four types according to the degree of danger to humans, animals, plants, microorganisms, and ecological environment. In practice, the Ministry of Agriculture is mainly responsible for the safety approval of genetically modified products, and its members in the National Agricultural Genetically Modified Organisms Safety Committee are mostly genetic scientists. In contrast, there are extremely few members from the fields of environmental protection or food and drug safety. As a result, it is hard for the National Agricultural Genetically Modified Organisms Safety Committee to make a comprehensive and systematic evaluation of the safety of genetically modified products for its influence on humans, animals, and plants, and especially on the ecological environment.124. PROSPECTSGenetically modified food offers promise for the future, although there are still issues. In China, in terms of genetically modified food, as stated above, both regulation and judicial practice have faced some difficulties that call for urgent correction. In the future, the following measures should be taken.4.1. Promoting a uniform law regarding genetically modified foodAccording to the Legislation Law of the People's Republic of China, the Constitution has the supreme legal effect, and after the Constitution, the effect of laws are higher than that of administrative regulations, local regulations, and rules. However, in regard to genetically modified food, no specific law has been enacted and all the regulations are scattered and often of low effect. Compared with traditional food, genetically modified food has its own characteristics and thus needs special attention. In the near future, the genetically modified food law should be promulgated to set the basic framework for the regulation of genetically modified food. Within this framework, different government departments can make out interpretative provision from its own perspective. Only in this way would the regulation for genetically modified food be adequate and coherent.4.2. Strictly following the disclosure standardA survey in China showed that more than half of the interviewees did not know much about genetically modified food and more than half of them held a skeptical attitude towards genetically modified food.13 The labeling requirement is undoubtedly an effective way to guarantee customers' right to know. However, until now, both Chinese and United States law had not imposed specific labeling requirements on food that contained GM ingredients or was derived from GM techniques.14Theoretically, the disclosure standard should be more specific. The label should clearly distinguish between food derived from genetically modified techniques and food that just contains genetically modified components. This can be realized by the use of different sizes of labels or labeling with different colors. With different labels to clarify disclosure, customers' rights would be better protected.4.3. Increasing illegal cost for the producerBefore taking actions, a rational person would balance between the potential cost and benefit. Increasing the cost to producers of illegal acts would accordingly be an effective way to deter the possible actions. This can be accomplished in two ways. First, consumers' awareness of their rights should be improved. Nowadays, besides individual consumers, the People's Procuratorate can also file suits for the genetically modified food. The Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Procuratorial Public Interest Litigation Cases stipulates that in the course of everyday work, if the People's Procuratorate finds that customers' legal rights have been infringed in the field of food and drug, the People's Procuratorate can start public interest litigation. In 2018, the People's Procuratorate in Fujian Province found out that an oil producer had used genetically modified oil without labeling; the Procuratorate sent a procuratorial proposal to the Market Supervision Management Bureau. Ultimately, the oil makers were fined more than millions.Second, criminal liability should be imposed if the case is serious. From a global perspective, several countries (including but not limited to Finland, Spain, and France) have explicitly stipulated criminal offences related to the genetically modified food. Currently, in China, crimes involving genetically modified food have been categorized into different crimes, such as the crime of illegal business operations, the crime of manufacturing or selling fake and inferior products, and so on. However, such crimes cannot cover all the aspects of genetically modified food, such as the illegal development of genetically modified technology. After establishing explicit standards, the criminal law should perform a role in regulating genetically modified food.4.4. Designating a department to supervise the safety approval systemActually, the quality of genetically modified food regulation will be affected by a number of issues, such as agency financial and personnel resources, agency priorities, agency decision-making structures, agency capture, political pressure, and so on.15 In China, the system of interministerial joint conference for the administration of agricultural genetically modified organisms safety is responsible for the discussion and coordination among agencies of major issues involved in the administration of agricultural genetically modified organisms safety. However, this system does not work effectively as designed. In the future, a routine department which contains experts from all relevant fields should be formed in the Ministry of Agriculture so that all the possible effects can be comprehensively evaluated before marketing genetically modified food. In order to effectively supervise genetically modified food, the State Administration for Market Regulation should take this responsibility.1 CPC is short for Communist Party of China.2 See Article 3 of Several Opinions of the CPC Central Committee and the State Council on the Implementation of New Concepts on the Development and the Acceleration of the Agricultural Modernization for the Realization of the Moderate Prosperity in All Respects.3 Josh Glasgow, Genetically Modified Organisms, Religiously Motivated Concerns: The Role of the “Right to Know” in the GM Food Labeling Debate, 20 Drake J. Agric. L. 115,116 (2015).4 For example, in 2010, a website in China published an article saying that the consumption of genetically modified corn had damaged the fertility of a college student in Guangxi; however, it was subsequently confirmed that there was never genetically modified corn in Guangxi and that the article was false. Another rumor originated in Shanxi and Jilin Province: allegedly, the planting of genetically modified corn had led to abortion in sows and a reduction in the number of rats. In the end, however, it was again found that there was no genetically modified corn in these two provinces.5 See Xi Jinping's speech at the Central Rural Work Conference on December 23, 2013.6 In order to enhance judicial openness, the website of China Judgments Online was officially opened on January 1, 2014, and the judgments of cases which can be published according to laws will be disclosed here.7 China Judgments Online, https://wenshu.court.gov.cn/ (last visited Apr. 22, 2019).8 Xiao Peng, Convergent Trend of Genetically Modified Food Labeling Systems in European Union and the United States and the Countermeasures of China, 10 Law Science Magazine 139 (2018).9 Zhang Zhongmin, On the Jurisprudential Basis and Improvement of the System of Genetically Modified Food Labeling, 5 Political Science and Law 126 (2016).10 Guo Wei, Observation on the Crime of Genetically Modified Food in Taiwan, 1 Journal of Wuling 80 (2018).11 Kong Qingjiang, Yang Yuhan, Safety License System of Genetically Modified Products in the U.S., EU and Japan and Its Implication to China, 6 Science Technology and Law 63 (2017).12 Id.13 Xin Ming, Cognitive Attainment and Acceptance Intention of Henan Consumers on Genetically Modified Food, 9 China Soft Science 60(2018).14 Angela Foster, Genetically Modified Food—Truth or Fiction?, 307 N.J. Lawyer 28, 31 (Aug. 2017).15 Gregory N. Mandel, Toward Rational Regulation of Genetically Modified Food, 4 Santa Clara J. Int'l L. 21 (2006).FiguresReferencesRelatedDetailsCited byAgricultural genetically modified organisms (GMOs) regulation in ChinaGeneration of Gene Edited Pigs23 August 2022Current Applications of Enzymes in GM (Genetically Modified) Food Development and Food Chain22 September 2022Differential Assembly and Shifts of the Rhizosphere Bacterial Community by a Dual Transgenic Glyphosate-Tolerant Soybean Line with and without Glyphosate Application8 October 2021 | Horticulturae, Vol. 7, No. 10Impact of a G2-EPSPS & GAT Dual Transgenic Glyphosate-Resistant Soybean Line on the Soil Microbial Community under Field Conditions Affected by Glyphosate ApplicationMicrobes and Environments, Vol. 35, No. 4 Volume 38Issue 5Oct 2019 InformationCopyright 2019, Mary Ann Liebert, Inc., publishersTo cite this article:By Jiao Feng and Fan Yang.The Regulation of Genetically Modified Food in China.Biotechnology Law Report.Oct 2019.289-293.http://doi.org/10.1089/blr.2019.29137.jfPublished in Volume: 38 Issue 5: October 11, 2019Online Ahead of Print:September 16, 2019Keywordsgenetically modified foodsafety approval systemdisclosure standardPDF download
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