[Case Discussion] Disturbance of a certain XF wine plasticizer
By: Date: 2021-04-10 Categories: chinesefood Tags: ,
  On the website of China Judgment Document Net, you can learn about the occurrence and judgments of many cases. This time, the editor happened to see the Shanghai Second Intermediate People’s Court about a certain XF wine caused by plasticizers. Everyone can watch the second instance of the product liability dispute.
  The case is as follows
  Plaintiff:Huang Mou, consumer, a registered member of SH International Wine Trade Center.
  Defendant:SH International Wine Trade Center.
  Defendant:XF Liquor Co., Ltd.
  Summary of the case:
   Mr. Huang spent a total of 287,880 yuan twice to purchase a total of 357 bottles of XF wine at the SH International Wine Trade Center. After testing by the SH City Liquor Product Quality Inspection Center Co., Ltd., the plasticizer (DBP) index is 1.02mg/kg, exceeding the requirements of the former Ministry of Health’s”Letter on Notification of the Maximum Residues of Phthalate Substances in Foods and Food Additives” [Health Office Supervision Letter (2011) No. 551] required for di-n-butyl dicarboxylate ( DBP) maximum residue content ≤0.3mg/kg, and the original National Health Planning Commission’s Food Safety Standards and Monitoring Evaluation Department’s”Plasticizer Risk Assessment Results in Liquor Products” requires the plasticizer health risk content ≤1mg/kg, according to On the grounds that the purchased products are foods that do not meet the food safety standards, the International Liquor Exchange Center and XF Liquor Company are required to refund the purchase price and ten times the compensation in accordance with Article 148 of the Food Safety Law of the People’s Republic of China.
   On the same day as the test results were issued, XF Wine Company issued the”Announcement on the Recall of the National Code Phoenix Products Produced in 2012 with 60°C”, stating that the batch of alcoholic products”in the market circulation link, the DBP index was detected to exceed the 2014 National Health and Family Planning Commission. The announced risk assessment results of liquor… Our company is based on a sincere business philosophy and an attitude of being responsible for consumers. After submitting to the Shaanxi Food and Drug Administration for approval, we agree to implement active recall measures for this batch of products… at 55 degrees XF Jiu 1915 products will be replaced or repurchased at the ex-factory price. Recall time:November 1, 2018 to December 31, 2018…”. On the next day, the International Liquor Exchange Center issued an announcement on the suspension of trading, delivery and recall of”XF? National Code Fengxiang 50 Years Wine [2012 Collection Edition]” on its website, and attached the aforementioned XF Liquor Company’s announcement as an attachment Posted.
   Shaanxi Provincial Institute of Product Quality Supervision and Inspection (entrusted by XF Liquor Company) and National Food Quality and Safety Supervision and Inspection Center (entrusted by Shaanxi Provincial Food and Drug Administration) respectively inspected the wines involved in the case. The results showed that the five safety indicators of the three products, including the wine involved, all met the national food safety standards, and the DBP content of the wine involved was 0.90 mg/kg. Since then, XF Liquor Company gave feedback to the above inspection conclusions and announcements to the International Liquor Exchange Center, requesting the International Liquor Exchange Center to delete all announcements or reports on the trading platform website that damage the reputation of XF Liquor Company, and announce the Shaanxi Provincial Food and Drug Administration The conclusions of the supervision and random inspection of the bureau to eliminate adverse effects to the greatest extent.
  First instance, verdict:
   Whether it is the 0.3mg/kg proposed by the original Ministry of Health Office Supervision Letter (2011) No. 551, or the 1mg/kg proposed by the National Food Safety Risk Assessment Expert Committee based on the risk assessment results of plasticizers in liquor products , Are not national food safety standards, and there is no evidence that relevant localities or enterprises have specially formulated local standards or enterprise standards for the content of DBP in food. Therefore, there is currently no evidence to prove that the wines involved are foods that do not meet the food safety standards. The judgment dismissed all claims of the plaintiff.
  The second instance, Huang, appeal:
   1. The state has repeatedly banned the addition of dibutyl phthalate (hereinafter referred to as”DBP”), commonly known as plasticizer, in food. The court of first instance found that there is no national standard for plasticizers, on the grounds that the 0.3mg/kg proposed in Document No. 551 of the Health Office Supervision Letter (2011) is not a national food safety standard.
  2. The Hygienic Standard for the Use of Additives for Food Containers and Packaging Materials (GB 9685-2008) clearly stipulates that the maximum residual amount of plasticizer in food containers and packaging materials in food is 0.3mg/kg, yellow The DBP of the liquor involved in XF liquor purchased at the SH International Liquor Exchange Center has seriously exceeded the national standard. XF Liquor Company shall bear the burden of proof that the food meets the quality standards.
  3. The liquor involved in the case was a product that did not meet the food safety standards. XF Liquor Company’s breach of contract caused Huang to fail to achieve the purpose of the contract. XF Liquor Company should refund the purchase price and pay ten times the price of compensation.
  4. The International Liquor Exchange Center failed to fully fulfill the statutory purchase inspection obligations and its publicly promised guarantee responsibilities in the transaction rules, etc., which caused the liquor involved in the case to flow into the market and shall bear joint and several liability for compensation.
  Second trial, SH International Wine Trade Center, arguing:
  1. The International Liquor Exchange Center immediately disclosed the real name, address and effective contact information of the liquor operator to all consumers including Huang as an online transaction when there was a quality problem with the liquor involved. The International Liquor Exchange Center on the third-party platform has fulfilled the legal obligation to provide the real name and address of the food business operator and effective contact information, and shall not be liable in accordance with the law.
  2. The International Liquor Exchange Center has never guaranteed the quality of wine in any form in its trading rules and trading rules. The International Liquor Exchange Center has fulfilled its duty of prudence, there is no intention or negligence, and should not be held liable. In summary, request the court of second instance for a ruling in accordance with the law.
  XF Liquor Company, arguing:
   Huang’s appeal request lacks factual and legal basis.
  1. According to the”Food Safety Law of the People’s Republic of China”, the competent authority to formulate and publish food safety standards is the National Health Commission (hereinafter referred to as the”National Health Commission”), which was formerly the National Health and Family Planning Commission. Before that was the Ministry of Health. Regarding the limit value of 0.3mg/kg for the maximum residue of DBP, the National Health Commission has issued a corresponding interpretation. The interpretation in 2014 concluded that the value of 0.3mg/kg is not a national food safety standard.
  2. On June 27, 2014, the Food Safety Standards and Monitoring Evaluation Department of the former National Health and Family Planning Commission issued the”Results of Risk Assessment of Plasticizers in Liquor Products”, pointing out that the contents of DEHP and DBP in liquor were 5mg/kg and 1 mg/kg or less, the health risk to drinkers is at an acceptable level. On the same day, the company issued the”Interpretation of the Results of the Risk Assessment of Plasticizers in Liquor Products” (hereinafter referred to as the”Interpretation”) and the”Questions and Answers on the Results of the Risk Assessment of Plasticizers in Liquor Products” (hereinafter referred to as the”Q&A”). The second part of the”Interpretation””risk assessment process” point 3″estimate the maximum allowable content of DEHP and DBP in liquor products” pointed out that”the special working group adopts a conservative estimation method, assuming that drinkers drink more than 6 taels per day (survey It is found that such people account for only about 5%), and it is calculated that the maximum content of DEHP and DBP in liquor products should not exceed 7.3mg/kg and 1.2mg/kg. Taking into account the limitations of the food category and sample size involved in this assessment The National Food Safety Risk Assessment Expert Committee believes that when the contents of DEHP and DBP in liquor are below 5mg/kg and 1mg/kg, respectively, the health risks to drinkers are at an acceptable level.” The third part of the”Interpretation””The Significance and Role of Risk Assessment Results” states that”the risk assessment results are derived from the perspective of health protection, without considering other factors, and are not national food safety standards.” The”Q&A” pointed out:”…1.5mg/kg and 0.3mg/kg are not national food safety standards and are only used to exclude illegal additions… The maximum residues of DEHP and DBP in food prescribed by the former Ministry of Health are only used for Investigate illegal additions. If the content of DEHP and DBP in liquor is higher than 1.5mg/kg and 0.3mg/kg, but illegal additions are excluded, as long as the content is lower than 5mg/kg and 1mg/kg respectively, it will be harmful to the health of the drinker The risk is at an acceptable level”.
  3. The Food and Drug Administration is the competent authority responsible for the supervision and management of food production and operation activities. The Shaanxi Provincial Food and Drug Administration, as the provincial-level administrative body for food safety supervision, will immediately after the occurrence of this food safety incident Administrative inspection actions were taken, and it was finally determined that the wines involved in the case were in full compliance with the national food safety standards, and the content of DBP plasticizer was in compliance with national regulations. In summary, the court of second instance is requested to dismiss the appeal and uphold the original judgment.
  Second trial, judgment:
   This court believes that the parties should provide evidence to prove their own claims and the facts on which they refute the other party’s claims, unless otherwise provided by law. Huang requested the International Liquor Exchange Center and XF Liquor Company to refund the purchase price in accordance with Article 148 of the Food Safety Law of the People’s Republic of China on the grounds that the DBP content of the liquor involved exceeded the standard and was a food that did not meet the food safety standards. Ten times the compensation, but currently there is no national food safety standard related to DBP content in food in my country, and there is no evidence to prove that relevant localities or enterprises have specially formulated local standards or corporate standards for DBP content in food. Therefore, Huang’s appeal request, reason This court does not support it for lack of basis. In summary, the facts found in the first-instance judgment are clear and the applicable law is correct, which should be maintained. The appeal was rejected and the original verdict was upheld.
  Editor’s comment
   1. National food safety standards generally reflect the specific category of food and are linked to the category. Checking the GB/T 14867 Fengxiang liquor national standard, it does not involve the relevant control requirements of plasticizers. The Health Office Supervision Letter (2011) Announcement No. 551 with DBP≤0.3mg/kg, and the”Results of Risk Assessment of Plasticizers in Liquor Products” with the health risk content of plasticizers≤1mg/kg are indeed not national food safety standards. It is a general specification requirement for plasticizers in food.
  2. According to Article 148 of the Food Safety Law, the plaintiff gave a penalty of ten for fake products that did not meet the national food safety standards. It can be said that the law was improperly applied. It should be implemented in accordance with Article 49 of the Product Quality Law. , Sales of products that do not meet the national standards and industry standards for the protection of human health and personal and property safety shall be ordered to stop production and sales, confiscate illegally produced and sold products, and impose illegal production and sales of products (including sold and unsold products). For products sold, the same below) fines equal to or more than three times the value of the goods; if there are illegal gains, the illegal gains shall be confiscated; if the circumstances are serious, the business license shall be revoked; if a crime is constituted, criminal responsibility shall be investigated according to law).
  3. Formal enterprises should not add plasticizer illegally, and the plasticizer exceeds the standard. Finding information shows that latex tubes, plastic packaging containers, etc. are used in the production and processing of liquor, which are exposed to product alcohol Make the plasticizer migrate into the product. Manufacturers should implement relevant monitoring and control measures, process improvement measures, etc. to reduce its content.
  4. The state still discourages anti-counterfeiting in order to make money. The plaintiff bought more than 280,000 drinks and applied for ten times the compensation to be more than 2.8 million. This behavior may be bought for the purpose of anti-counterfeiting, an abnormal consumption behavior.