The PRC Product Quality Law
The PRC Product Quality Law was promulgated by the Standing Committee of the PRC National People’s Congress on 2 February 1993, to commence operation on 1 September 1993 and was amended by it on 8 July 2000 and 27 August 2009. Products mentioned in the law include products processed and manufactured for the purpose of marketing, except for military products. According to the provisions of the law, producers and sellers are responsible for product quality.
Obligations of producers
Producers will be responsible for the quality of the products they produce. Products should meet the following requirements:
- products will be free from any unexpected dangers threatening the safety of people and property (if there are state standards or trade standards for ensuring the health and safety of lives and property, the products should conform to such standards);
- products will have the property they are stated to have, except for cases in which there are explanations about defects in the properties of the products; and
- products will tally with the standards prescribed or specified on the packaging and with the quality specified in the instructions for use or shown in samples.
Further, the marks on the products or the packaging should be accurate and include a certificate of quality inspection. For products that have a time limit for use, a date of production, a period for safe use or the date of the product becoming ineffective should be specified clearly in a conspicuous position on the product. Products that may cause harm to persons or injure the safety of persons and property because of improper use should carry warning marks or warnings written in Chinese. For products that are easily broken, inflammable, explosive, toxic, corrosive or radioactive and products that cannot be handled upside down in the process of storage or transportation or for which there are other special requirements, the package thereof should meet the corresponding requirements, carry warning marks or warnings written in Chinese or guidelines for handling.
Obligations of sellers
Sellers should implement the system of examination and acceptance of goods procured, verifying the product quality certificates and other marks and should adopt measures to maintain the quality of products for sale.
Sellers should not:
- sell any product that has been withdrawn by order of the state and thereby prohibited from being sold, or products that have expired or deteriorated;
- falsify the place of origin or falsify or use the names and addresses of other producers;
- falsify or use quality marks such as certification marks and fine quality marks; and
- adulterate the products for sale, or present fake ones as genuine or shoddy ones as good or substandard ones as standard.
The PRC Law on Protection of Consumer Rights and Interests (2013 Amendment)
The PRC Law on Protection of Consumer Rights and Interests was promulgated by the Standing Committee of the PRC National People’s Congress on 31 October 1993, commencing operation on 1 January 1994. The law was amended on 25 October 2013.
The law stipulates the rights of consumers and the obligations of business operators related to product safety.
Rights of consumers
Consumers will, when purchasing and using commodities or receiving services, enjoy the right of the inviolability of the safety of their person and property. Consumers should have the right to demand that business operators supply commodities and services up to the required standards of personal and property safety.
Obligations of business operators
Business operators should guarantee that the commodities and services they supply meet the requirements for personal or property safety. As to commodities and services liable to harm persons or property, business operators shall give the consumers accurate explanations and clear warnings, and shall explain or indicate the correct ways of using the commodities or receiving services as well as the methods of preventing damage.
Business operators should, upon discovery of defects of the commodities or services they supply that are liable to cause harm to persons or property, immediately report to the administrative departments concerned, inform consumers, stop production and sales, and adopt measures, such as alert, recall, harmless treatment and destruction, to prevent damage. Where recall measures are taken, the operators will be liable for the consumer’s necessary expenses caused by commodity recalls.
The PRC Tort Law
The PRC Tort Law was issued by the Standing Committee of the National People’s Congress on 26 December 2009, commencing operation on 1 July 2010.
According to the provisions of the law, manufacturers, sellers and third parties such as carriers or warehouse operators are responsible for various aspects of product quality.
Obligations of manufacturers are:
- where a defective product causes any harm to another person, the manufacturer shall assume liability under tort law; and
- where any defect of a product is found after the product is put into circulation, the manufacturer should take such remedial measures as warning consumers or carrying out a recall operation in a timely manner. The manufacturer who fails to take remedial measures in a timely manner, or take sufficient and effective measures, and has caused any harm will have liability under the tort law.
The obligations of sellers are:
- where a product with any defect caused by the fault of a seller causes any harm to another person, the seller shall assume the tort liability;
- where a seller can neither specify the manufacturer of a defective product nor specify the supplier of the defective product, the seller shall assume the tort liability; and
- where any defect of a product is found after the product is put into circulation, the seller should take such remedial measures as warning and recall in a timely manner. The seller who fails to take remedial measures in a timely manner or take sufficient and effective measures and has caused any harm shall assume the tort liability.
The obligations of third parties are:
- where any harm is caused to another person by a defective product and the defect is caused by the fault of a third party, such as carrier or warehouse worker, the manufacturer or seller of the product that has paid the compensation should be entitled to be reimbursed by the third party.
Rights of the victim are:
- where any harm is caused by a defective product, the victim may require compensation to be made by the manufacturer of the product or the seller of the product;
- where the defect of a product endangers the personal or property safety of another person, the victim shall be entitled to require the manufacturer or seller to assume the tort liabilities by removing the obstruction or eliminating the danger; and
- where a manufacturer or seller, knowing of any defect in a product, continues to manufacture or sell the product and the defect causes a death or any serious damage to the health of another person, the victim shall be entitled to require the corresponding punitive compensation.
Besides the three basic laws above, there are regulations in effect in China related to the recall of specific product categories, such as automotive products, medical drugs, medical devices, food, children’s toys and railway equipment. These are:
- Regulations on the Administration of Recalls of Defective Automotive Products (Decree No. 626 of State Council, promulgated by it on 22 October 2012 and commencing operation on 1 January 2013);
- Measures for the Implementation of the Regulation on the Administration of the Recall of Defective Auto Products (Decree No. 176 of General Administration of Quality Supervision, Inspection and Quarantine (AQSIQ), promulgated by it on 27 November 2015 and commencing operation on 1 January 2016);
- Administrative Measures for Drug Recalls (Decree No. 29 of the State Food and Drug Administration (SFDA), promulgated by it and commencing operation on 10 December 2007);
- Administrative Measures for Medical Device Recalls (Decree No. 29 of SFDA, promulgated by it on 25 January 2017 and commencing operation on 1 May 2017);
- Provisions on the Administration of Food Recall (Decree No. 98 of SFDA, promulgated by it and commencing operation on 27 August 2007);
- Administrative Measures for Food Recalls (Decree No. 12 of the State Food and Drug Administration, promulgated by it and commencing operation on 11 March 2015);
- Provisions on the Administration of Children’s Toy Recalls (Decree No. 101 of General Administration of Quality Supervision, Inspection and Quarantine, promulgated by it and commencing operation on 27 August 2007); and
- Measures for the Administration of Recall of Defective Railway Special Equipment (Decree No. 23 of the Ministry of Transport, promulgated by it on 11 November 2015 and commencing operation on 1 January 2016).
On 21 October 2015, the AQSIQ issued the Measures for the Administration of the Recall of Defective Consumer Goods, which commenced operation on 1 January 2016. Nine types of electronics and 11 children’s products that are manufactured in China or imported into China and then sold in China are covered by the measures. If any other consumer goods that have not been listed in the catalogue need to be recalled, the measures may apply. The measures do not apply to tobacco and tobacco products, motor vehicle products, civilian aircraft, civilian vessels, food, pharmaceuticals, cosmetics, medical instrument products, pesticide products and other products specifically provided by laws or regulations.
On 22 March 2018, the original AQSIQ (which has been incorporated into the newly created State Administration for Market Regulation, under the 2018 institutional reforms delivered by the State Council) issued the Rules on Recall of Defective Imported Consumer Goods which commenced operation on the same day. Under these new Rules, importers are responsible for the recall of defective consumer goods imported by them when recall responsibilities are triggered.
Further, China has been enacting the administrative regulations for defective product recalls, implementation regulations of the Law on Protection of Consumer Rights and Interests, and provisions on the administration of household appliance product recalls - the three drafts have been published for public consultation, but the formal versions have not yet been issued.
According to the finalised draft of the Implementing Regulations of the Law on Protection of Consumer Rights and Interests issued by the State Council on 16 November 2016, provisions have been included as regards mandatory obligations for the recall of detective products by operators, producers and importers. The inclusion of these provisions in these implementing regulations, illustrates the importance of this area to the Chinese government.
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