As almost everyone predicted, the food oil products that Premier Jiang Yi-huah (江宜樺) guaranteed were fine have turned out to be problematic. After the whole affair was exposed, President Ma Ying-jeou (馬英九) ignored his duties as the nation’s leader and instead joined the public boycott to punish the food producers concerned.
The legal process is progressing as the Changhua District Prosecutors’ Office detained Ting Hsin International Group (頂新集團) senior executive Wei Ying-chun (魏應充) on suspicions of fraud and violations of the Act Governing Food Safety and Sanitation (食品安全衛生管理法). Prior to this, assistants to Wei had been detained based on similar suspicions. This begs the question of whether the charges are commensurate with the offenses.
Let us start by looking at food safety management and controls. There are many products that violate food safety laws, but these items fall into three main categories.
The first category consists of products that are passed off as something they are not, by claiming product A is product B, either by selling a mix of the two or just selling A as B.
An example of this is when Ting Hsin International Group’s and Chang Chi Foodstuff Factory Co’s (大統長基) olive oil was found to have been mixed with soybean oil or sunflower oil last year.
Soybean oil and olive oil are both edible oils, so unless food culture taboos are violated — for example by selling beef products mixed with pork to Muslims — or illegal additives are used, such as copper chlorophyllin, the main violation is one of legally protected property rights.
Simply put, this deceives consumers by making them pay for expensive olive oil when they are in fact buying cheap soybean oil. A company doing this could be guilty of fraud or unjust enrichment under the Criminal Code and adulteration or counterfeiting under the Act Governing Food Safety and Sanitation.
In addition, forging customs documents or applying for false product labels can result in criminal liability.
The second category consists of products in which certain ingredients are present in quantities greater than those stated on the label, in particular excessive use of allowed additives, such as preservatives or emulsifiers. This is no longer a simple violation of fraud laws: it involves a violation of legally protected life, physical and health rights.
The third category consists of products to which substances not used in food have been added. These “non-food products” are defined as “toxins.” An example of this violation is the plasticizers that were found to have been added to beverages a couple of years ago, or the PCBs added to cooking oils in Taiwan and Japan.
The main protection provided by food safety legislation both in Germany and in the EU is a ban on adding non-food products to food products, and these banned non-food products are not restricted to toxins or other substances that are harmful to human health.
This is why, when pursuing cases that fall within this category, the state or consumers do not have to prove that the non-food product in question is harmful to health. According to the Criminal Code, this is termed a behavioral offense rather than an offense with a practical consequence — merely taking this action is illegal in itself.
The Ministry of Health and Welfare repeatedly gets entangled in arguments over how much of a certain ingredient must be ingested to be harmful to health, and this is a misleading judicial practice.
The Chang Guann Co (強冠企業) tainted lard oil scandal and the Ting Hsin animal feed oil scandal are examples where non-food products have been added to food products.
Industrial waste products were added to lard oil and animal feed oil was used that was clearly not intended for human consumption — not to mention that the animal feed oil was so bad that even pigs got sick after eating it — so the definition is met of a non-food product being added to a food product and there is no need to prove the additive is harmful to health.
However, it is questionable whether the current legislation is sufficient to deter such behavior.
First, if fraud, which is intended to uphold legally protected property rights, is the only charge filed in these cases, it is too weak a charge and insufficient to uphold legally protected rights. The fines that can be levied under the Act Governing Food Safety and Sanitation have been raised repeatedly, but there is the issue of administrative inaction and ineptness and the fact that the legislature has not addressed the issue of how to determine the relative severity of the three categories of misdemeanor.
This leads to inadequacies in judicial practice, with the result that sentences for offenses dealing with the third category — the addition of non-food products — are frequently mixed up with the category concerning adulterated or counterfeited food products or the second category, which deals with illegal additives.
The heaviest prison sentence for these offenses is five years, the same as for burglary. That means unscrupulous producers who have been continuously threatening public health for years receive the same penalty as a small vendor of beef products who has mixed pork into his products to make a one-time profit. Are the two crimes really comparable?
Given the current legislative situation and statutory requirements, if responsibility in practice is to be commensurate with the offenses committed by large-scale food producers, it would probably be necessary to approach each violation individually, issuing a sentence for each offense, and accumulating the sentences for each offense when prosecuting food producers guilty of repeat offenses, with a combined maximum sentence of 30 years imprisonment.
Moreover, the issue of whether more serious charges should be made against producers based on the Act Governing Food Safety and Sanitation and whether the offenses were intentional or the result of an oversight, would be the main issues discussed during court proceedings.
Prison sentences are always a last resort. Although the law provides administrative control measures and penalties, it also provides food producers with several easy ways out. However, the main reason that food safety problems cannot be prevented is the ineptness and dereliction of duty of the government agencies responsible for food safety.
Perhaps the most important lesson that should be draw from the tainted oil scandal is that the quality of the oil we consume cannot not be better than the quality of our government.
Lin Yu-hsiung is a law professor at National Taiwan University.
Translated by Perry Svensson
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