Compensate tainted oil consumers

By Huang Di-ying 黃帝穎  / 

Tue, Nov 05, 2013 - Page 8

The Ministry of Health and Welfare has decided to levy severe fines on two of the companies involved in the sale of mislabeled or adulterated cooking oils, Chang Chi Foodstuff Factory Co and Flavor Full Food. The considerable size fines — NT$1.85 billion (US$62.8 million) for Chang Chi and NT$460 million for Flavor Full Food — goes some way to retrieving the illicitly gained profits of these unscrupulous firms, but it also raises some concerns for consumers seeking compensation. If the companies pay the fines, will they have enough money left to provide compensation to consumers?

The citizen’s right to health is a basic human right guaranteed in the Constitution, and the state has a duty to protect this right. It follows that if the state is to ensure that what each citizen eats is safe, it has an obligation to retrieve any illegally gained profits that companies make from the sale of foods containing additives deemed toxic to humans.

Simply put, when the government seeks to retrieve the ill-gotten gains of unscrupulous companies, particularly when these involve food safety issues, the authorities should implement effective measures to prevent companies from thinking they can “wing” it and stop them writing off trifling fines as simply part of their “costs,” while being tempted by prodigious profits gained at the risk of public health.

This is why the second clause of Article 44 of the Act Governing Food Sanitation (食品衛生管理法) states that those “whose benefit exceeds the amount of maximum statutory fine and are deemed as severe violators ... may be sanctioned within the scope of the benefit gained.”

It is also why Article 18 of the Administrative Penalty Act (行政罰法) places no limits on the fines the government can levy on companies that gain profits through illegal means. In other words, the government has absolutely no excuse to allow unscrupulous food companies to get away with light fines.

The state should also ensure that victims have the right to receive compensation. If consumers ingest tainted food products, the government has a duty to ensure victims can seek compensation through the courts from the companies responsible.

If the companies in question find themselves unable to compensate consumers after having paid the considerable fines levied by the government, the authorities should then use the money from the fines to ensure that those seeking compensation have precedence. That is to say, the government should not use these fines as an opportunity to boost its own coffers: It has a responsibility to make sure victims are compensated.

Democratic Progressive Party (DPP) Legislator Chen Chi-mai (陳其邁) proposed an amendment calling for a food safety fund. Unfortunately, this was never followed through on, but this recent cooking oil affair confirms the need for such a fund.

For example, the health ministry has fined these two companies a total of NT$2.31 billion. If, in the future, consumers are awarded compensation from the companies in the courts, but the companies are unable to make these payments, the ministry could technically tell the consumers that the NT$2.31 billion is just an ordinary fine, and not a food safety fund, and so it has no legal obligation to give consumers the compensation the ministry has been awarded out of this amount. This provides little in the way of social justice or fairness.

According to the recently amended food sanitation act, consumers can seek compensation from the offending companies in line with Article 56, which stipulates that “in the event of difficulty for consumers to provide or inability to provide evidence to support the actual amount of damage, he/she may request the court to determine the compensation in the amount between NT$500 and NT$20,000 for each case of damage per person based on the circumstances of such damage.”

However, the Consumer Protection Committee, clearly taking the side of the companies, has ruled that the food sanitation law does not apply to any consumers who bought tainted products prior to June, when the law was enacted, as it cannot be applied retroactively.

Regardless, in law, when legislation is revised, the principles of following new provisions in procedural laws and old provisions in substantive laws apply. Article 56 of the food sanitation act concerns the mitigation of the burden of proof, and is procedural in nature.

The second clause of Article 222 of the Code of Civil Procedure (民事訴訟法), which predates the food sanitation act, deals with essentially the same issue, and states: “Where a party has proved injury, but is unable to or is under great difficulty to prove the exact amount, the court shall, taking into consideration all circumstances, determine the amount by its conviction.”

Therefore, based upon the principle of following new provisions in procedural laws, if consumers ingested tainted foodstuffs — irrespective of whether this occured prior to June or subsequent to it — they can, in court, invoke Article 56 of that law as grounds to seek compensation from the unscrupulous companies.

Huang Di-ying is a lawyer and a board member of the Taipei Bar Association’s Committee for Human Rights.

Translated by Paul Cooper