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Adulterating, Counterfeiting, Using Unapproved Additives Is a Violation of Paragraph 1 of Article 49 of the Food Safety Act

Wen-Ping Lai/Connie Chen


Before the Act Governing Food Safety and Sanitation ("Food Safety Act") was amended on 31 May 2013, the act of adulterating or counterfeiting food or food additives was criminally punishable if, among others, human health was endangered. In 2013, Taiwan was buffeted by a series of food safety fiascoes involving tainted starch, use of dubious ingredients by a renowned bakery, low quality rice selling as premium rice, and high-grade cooking oil being diluted with inexpensive cooking oil. The duplicitous conduct is symptomatic of the food industry's inveterate use of unapproved food additives and passing off of shoddy products as quality products, both of which threaten the health of the public and erode their faith in food safety. Subsequently, legislators removed "endangering human health" as a constituent element of the crime and criminalized the conduct of adding additives unapproved by the central competent authorities.
 
However, whether an act of adulterating, counterfeiting or using unapproved additives would harm human health cannot be ascertained in a limited time, which translates to difficulties in proving and evaluating the risk of harm. That is why the courts applied Paragraph 1, Article 49 of the Food Safety Act without discernible consistency.
 
On 22 November 2016, the Supreme Court convened a meeting for the criminal division to align the varied court opinions on the criteria for determining a violation of Paragraph 1, Article 49 of the Food Safety Act. The resolution reached by the Supreme Court is: Where adulterating, counterfeiting or using additives unapproved by the central competent authorities constitutes a violation of Paragraph 1 of Article 49 of the Food Safety Act, the courts need not further verify whether the act itself endangers human health on the basis of the given case or the life experience of the general public.
 
There are two supporting arguments for this resolution. First, when the legislature deleted the prerequisite of "endangering human health" in May 2013, having the result of endangering human health was not required under the law. Hence, the act of adulterating, counterfeiting or using unapproved additives alone constitutes a violation of Paragraph 1 of Article 49 of the Food Safety Act.
 
Second, a survey of the opinions of the legislators during the amendment of the Food Safety Act in 2013 and the legislative reasons of the Food Safety Act in 2014 reveals legislators believed Article 49 had become inapplicable because production of admissible evidence in a food safety case was a nearly insurmountable challenge. Also, the food industry's cost-cutting practice of diluting premium goods with inferior alternatives or substituting artificial ingredients for natural ingredients blatantly undermines food safety and consumer rights. Since the objective behind amending Article 49 of the Food Safety Act is to protect public health and consumer rights and interests, as long as food manufacturers adulterate, counterfeit, or add food additives unapproved by the central competent authorities, they will be breaching Paragraph 1 of Article 49 of the Food Safety Act. The act of adulterating, counterfeiting or adding unapproved additives implies harm; thus, it is unnecessary for the court to verify the result.
 

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