The latest tainted cooking oil scandal, involving reputable midstream and downstream manufacturers, has left people wondering whether the current legal constraints are sufficient to prevent the spread of unscrupulous behavior.
After the plasticizer food scare of 2011, legislators, in a bid to dissuade food manufacturers from using harmful additives, increased the possible sentence for doing so from three years to seven, together with a fine of NT$10 million (US$332,580), and introduced the possibility of fining a corporation and its head an amount proportionate to the violation.
However, in May last year, when another scandal broke, this time over the use of maleic anhydride-modified industrial starch, legislators further amended the law to not only criminalize the use of prohibited additives, but also increase the severity of legal penalties when such activities lead to death or serious harm, up to a life sentence in the most severe cases.
Not long after these amendments, the Tatung-brand adulterated cooking oil scandal occurred, obliging the legislature to make further changes. In January, the fines that could be levied on a corporation and its head were multiplied by 10.
However, has all this escalation had any effect?
Many legal clauses cite a ceiling of NT$10 million or NT$15 million. While this figure seems high to the ordinary person, given the huge profits of millions — even hundreds of millions — of New Taiwan dollars that some companies earn, fines of this size are easily brushed aside.
Even worse, based on the principle of double jeopardy and the principle that criminal offenses should take precedence if an offense violates both criminal and administrative law, if guilt is ascribed in a criminal case, it precludes any administrative fines the guilty party would otherwise have faced. This means that offenders are free to continue enjoying their ill-gotten gains.
In addition, food scandals often only occur when upstream, midstream and downstream manufacturers conspire, but according to the Criminal Code, a joint offense can only be established when conspiracy with criminal intent can be proven. Here, however, it has been difficult to establish conspiracy with criminal intent between the midstream and downstream manufacturers, even if they have been trying to cut costs, and this reveals the flaws in the Criminal Code when it comes to dealing with this kind of crime.
Furthermore, after a scandal erupts, the companies involved may file civil lawsuits against the upstream manufacturers. This means that in addition to their exorbitant profits, these companies will not only be freed of legal liability, but can also get the courts to certify that they are the victims and not the perpetrators, which is preposterous.
Heavy penalties may be intended to deter potential offenders, but to be effective, a large number of cases need to be pursued and a high conviction rate achieved. Currently, heavy penalties for food safety violations are useless, leading unscrupulous businesspeople to think that they can get away with it.
At the same time, because problems with starch, edible oil and other daily necessities harm society at large, it is not possible to complete investigations and trials with a short-term perspective. The result could well be that penalties become ever lighter.
Since laws are not retroactive, legal amendments will only have future effect. The result is that the offenders in the 2011 plasticizer food scare were given prison sentences of no more than two years. That means that even if laws are amended to further tighten penalties, the effect will be restricted.
The many food safety incidents that have occurred over the past few years reveal the limitations to the punishment of such offenders, and they also show that public health authorities are incapable of fulfilling their role as gatekeepers. The only way to get to the root of this problem is to improve inspections and preventive work.
Wu Ching-chin is an associate professor and chair of Aletheia University’s law department.
Translated by Paul Cooper and Perry Svensson
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