How is the business of dirty food handled?

I would like to be advised of the following case: I discovered that a food processing facility of Mr. H, which is near my house, uses chemicals to wash food. I plan to report it to the authorities. I want to know how the behavior of this establishment will be handled under the law.

FDVN’s Opinions:

Curently, the following legal documents are applied to handle the violation in the Food safety and hygiene: (1) Law on Food Safety 2010; (2) Decree 115/2018/ND-CP dated September 4, 2018 of the Government on sanctioning of administrative violations on food safety (hereinafter referred to as “Decree 115/2018/ND-CP” ); Penal Code 2015, amended and supplemented in 2017 (hereinafter referred to as “Criminal Code”) and Civil Code 2015 (for damage compensation).

The use of chemicals to wash food is a violation of food safety, which is strictly prohibited under the provisions of Clause 3, Article 5 of the Law on Food Safety 2010: “Chemicals of unknown origin or chemicals prohibited from being used in food production and trading activities”.

Depending on the nature and seriousness of the violation, this act may be administratively handled or examined for penal liability. If causing damage, it must compensate and remedy the consequences under the law.

Firstly, about the sanction of administrative violations

According to Clause 1, Article 3 of Decree No. 115/2018/NĐ-CP, the maximum fine for an administrative violation on food safety is VND 100,000,000  for individuals, VND 200,000,000  for organizations (except for the cases specified in Clause 5, Article 4; Clause 6 Article 5; Clause 5 Article 6; Clause 7 Article 11; Clauses 1 and 9 Article 22; Clause 6 Article 26 of Decree 115/2018/ND-CP).

Specifically, for act violating the regulations on the use of chemicals in food production and processing, one of the following fines may be applied:

“1. A fine ranging from VND 10,000,000 to VND 20,000,000 shall be imposed for using expired substances/chemicals or the ones with unknown expiration dates.

2. A fine ranging from VND 30,000,000 to VND 40,000,000 shall be imposed for using an amount of substances or chemicals in excess of the permissible level or using the ones that fail to meet requirements set forth in corresponding technical regulations or food safety regulations.

3. A fine ranging from VND 40,000,000 to VND 50,000,000 shall be imposed for any of the following violations:

a) Using substances, chemicals, antibiotics, veterinary medicines or pesticides that are banned or not on the list of permitted substances, chemicals, antibiotics, veterinary medicines or pesticides but the product value is less than VND 10,000,000;

b) Using substances, chemicals, antibiotics, veterinary medicines or pesticides that are not permitted for use or sale in Vietnam but the product value is less than VND 50,000,000.

4. A fine ranging from VND 80,000,000 to VND 100,000,000 shall be imposed for one of the following violations:

a) Using substances, chemicals, antibiotics, veterinary medicines or pesticides that are banned or not on the list of permitted substances, chemicals, antibiotics, veterinary medicines or pesticides but the product value is VND 10,000,000 or more and the violation is not serious enough for criminal prosecution;

b) Using substances, chemicals, antibiotics, veterinary medicines or pesticides that are not permitted for use or sale in Vietnam but the product value is VND 50,000,000 or more and the violation is not serious enough for criminal prosecution.”

In particular, for acts of using chemicals that are banned from use, apart from the list of chemicals permitted to use, not permitted to use or not permitted to be circulated in Vietnam in food production and processing, the case of applying the highest fine level (not yet reaching the level of criminal liability investigation) of the corresponding fine frame and lower than 7 times the value of the infringing food, the fine level will be raised from 5-7 times the value of the infringing products.

Besides, the violators are also subject to additional restrictions such as suspension of part or all of food production and processing activities; revoking the right to use the product announcement registration receipt for products subject to product announcement registration. Besides, thay must take remedial measures to force the destruction of infringing foods and chemicals; forced to withdraw the self-declaration of products for products subject to self-declaration of infringing products.

Secondly, about criminal liability

Acts of using chemicals in food production and trading activities may constitute an offense of violating regulations on food safety under Article 317 of the Penal Code. Violators may be fined up to VND 500,000,000 or imprisoned for up to 20 years, depending on the nature and seriousness of their violations.

Third, about compensation

According to Article Điều 584 Civil Code 2015 thì "A person intentionally or unintentionally harming the life, health, honor, dignity, reputation, property, or other legal rights or interests of a person, must compensate for such damage, unless otherwise prescribed in this Code or relevant laws". Besides, Article 608 of Civil Code 2015 stipulates that: “A natural person or juridical person carrying out production or business and failing to ensure the quality of goods, thereby causing damage to consumers, must compensate for such damage”.

Therefore, if Mr. H's establishment uses chemicals to soak and wash meat before distributing it to markets and restaurants, causing damage to the health and life of others, compensation must be paid.

Loss of health and life includes: Reasonable expenses for the treatment, fostering and restoration of health and lost or reduced functions of the aggrieved person; actual lost or reduced income of the aggrieved person; reasonable expenses and the actual loss of income of the carer of the aggrieved person during the treatment period; reasonable expenses for burial; alimony for those for whom the aggrieved person is obliged to support; other damages prescribed by law.

In addition, a sum of money must be paid to compensate for the mental loss suffered by that person or their first-order heirs (the maximum amount for a person whose health is violated) no more than 50 times and for a person whose life is infringed no more than 100 times the base salary prescribed by the State).

The parties can discuss the level of compensation, the form of compensation in cash, in-kind, or performing a job, the compensation method once or many times.

Lawyer Duyên Trần – FDVN Law Firm

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