Notice of Hainan provincial market supervision administration on printing and distributing the working specifications for sampling, re inspection and objection of food safety supervision
By: Date: 2022-07-15 Categories: authoritativerelease Tags: ,
Market supervision and administration bureaus of cities, counties and autonomous counties, relevant units of the Provincial Bureau, the provincial food inspection and testing center, the branches of the provincial food and Drug Inspection Institute, and the inspection agencies:
 
In order to regulate the re inspection and objection of food (including food additives, edible agricultural products, etc.) safety supervision, further improve work efficiency, and effectively prevent and control food safety risks, in accordance with the food safety law of the people’s Republic of China and its implementation regulations, the administrative measures for food safety sampling inspection and other laws and regulations, Our bureau has organized and formulated the”Hainan provincial market supervision and Administration Bureau of food safety supervision, sampling, re inspection and objection work specifications”, which has been reviewed and approved at the 8th board meeting of the provincial market supervision and Administration Bureau in 2022 on July 11, 2022, and is hereby printed and distributed to you. Please carefully comply with and implement it.
 
Hainan provincial market supervision and Administration Bureau
 
July 14th, 2022
 
(this piece is publicly released)
 
Hainan provincial market supervision and Administration Bureau食品安全监督抽检复检和异议工作规范
 
  Chapter I General Provisions
 
Article 1 in order to regulate the re inspection and objection work of food safety supervision and sampling in our province, effectively implement the responsibility of food safety sampling, and fully protect the legitimate rights and interests of food producers and operators, these specifications are formulated in accordance with the food safety law of the people’s Republic of China and its implementation regulations, and the administrative measures for food safety sampling inspection (Order No. 15 of the State Administration of market supervision) and other laws, regulations and rules.
 
Article 2 the re inspection work mentioned in this specification refers to the behavior that in the food safety supervision and sampling inspection, the food producers and operators have objections to the inspection conclusions of the food they produce and operate and apply for re inspection to the market supervision and administration department according to law, and the market supervision and Administration department entrusts an inspection institution with food re inspection qualification to re inspect the backup samples of re inspection.
 
The”objection work” mentioned in this specification refers to the behavior that food producers and operators have objections to the sampling process, sample authenticity, inspection methods, standard application and other matters of the food they produce and operate, and file an objection application to the market supervision and administration department according to law, and the market supervision and administration department will deal with it according to the objection verification.
 
Article 3 this specification is applicable to the re inspection and objection of unqualified food in the sampling inspection of food safety supervision organized and implemented by the market supervision and administration departments at all levels in Hainan Province.
 
The task of food safety supervision and sampling inspection carried out by Hainan provincial market supervision and Administration Bureau (hereinafter referred to as the provincial market supervision bureau) entrusted by the State Administration of market supervision and administration, as well as the re inspection and objection of unqualified food in the food safety supervision and sampling inspection organized and implemented by the provincial market supervision bureau, shall be in the charge of the provincial market supervision bureau.
 
The re inspection and objection of unqualified food in the food safety supervision and sampling inspection organized and implemented by cities and counties shall be handled by the market supervision and administration department or the provincial market supervision bureau that implements the supervision and sampling inspection. If an application for re inspection or objection is submitted to the provincial market supervision bureau, the provincial market supervision bureau may entrust the market supervision and administration department at the city or county level of the applicant’s residence to handle it.
 
Article 4 the principles of objectivity, impartiality, scientificalness, rationality, convenience and efficiency shall be followed in the sampling, re inspection and objection work of food safety supervision.
 
Article 5 after receiving the inspection conclusion of unqualified food from the supervision and sampling inspection, the food producers and operators shall immediately take measures to seal up the unqualified food, suspend the production and operation of unqualified food, notify the relevant producers, operators and consumers, recall the unqualified food that has been sold on the market and other risk control measures, investigate the causes of the unqualified food and make rectification, and timely report the handling to the local market supervision and administration department, Actively cooperate with the investigation and handling of the market supervision and administration department, and shall not refuse or escape.
 
During the period of re inspection and objection, food producers and operators shall not stop performing the obligations specified in the preceding paragraph. If the food producer or operator fails to take the initiative to perform, the market supervision and administration department shall order it to perform.
 
When national interests and public interests require, or in order to deal with major food safety emergencies, the provincial market supervision bureau can organize investigation and analysis or re sampling inspection to find out the reasons for nonconformity.
 
  Chapter II re inspection
 
Article 6 the re inspection process of unqualified food includes submitting a re inspection application in writing, accepting the re inspection, determining the re inspection organization, handing over the back-up samples for re inspection, re inspection and submitting the re inspection report, notifying the re inspection applicant and the local market supervision and Administration Department of residence, and filling and auditing the national food safety sampling inspection information system. See the re inspection implementation flow chart for the specific steps.
 
Article 7 If a food producer or operator has any objection to the conclusion of the supervision and sampling inspection implemented in accordance with the provisions of these measures, it may, within 7 working days from the date of receiving the inspection conclusion, submit a written re inspection application to the market supervision and administration department implementing the supervision and sampling inspection or the provincial market supervision bureau. The re inspection application entrusted by the State Administration of market supervision shall be handled by the provincial market supervision bureau. If the application is not submitted within the time limit, it will not be accepted.
 
Article 8 the applicant for re inspection shall submit the following materials (see the annex for details):
 
(1) re inspection application;
 
(2) notification of food safety sampling inspection results;
 
(3) recheck the applicant’s business license or other qualification certificates;
 
(4) documented enterprise standards (if used);
 
(5) if the applicant is not the legal representative or person in charge of the enterprise, the applicant shall also submit a power of attorney signed or sealed by the principal and copies of the identity cards of both parties. The power of attorney shall specify the entrusted matters and authority.
 
If the application materials are incomplete, the acceptance department shall inform the applicant of all the contents that need to be supplemented and corrected at one time.
 
Article 9 under any of the following circumstances, re inspection is not allowed:
 
(1) the inspection conclusion is that the microbial index is unqualified;
 
(2) the re inspection of backup samples exceeds the shelf life;
 
(3) submitting an application for re inspection within the time limit;
 
(4) the backup samples cannot achieve the purpose of re inspection due to other reasons;
 
(V) other circumstances under which re inspection is not allowed as stipulated by laws, regulations, rules and food safety standards.
 
Article 10 the market supervision and administration department shall issue a notice of acceptance or rejection within 5 working days from the date of receiving the re inspection application materials. If the case is not accepted, the reasons shall be explained in writing.
 
The market supervision and administration department shall, within 5 working days from the date of issuing the acceptance notice, randomly determine the reinspection institution for reinspection in the published list of reinspection institutions, following the principle of convenience and efficiency. The re inspection institution shall not be the same as the initial inspection institution. If the reinspection authority cannot be determined in time due to objective reasons, it may be extended for 5 working days and the reasons shall be explained to the applicant.
 
The re inspection authority shall not refuse the re inspection task without justified reasons. If it is indeed unable to undertake the re inspection task, it shall make a written explanation to the relevant market supervision and administration department within 2 working days.
 
If the reinspection institution has interests such as daily inspection business entrustment with the reinspection applicant, it shall not accept the reinspection application.
 
Article 11 the preliminary inspection authority shall hand over the backup samples to the re inspection authority within 3 working days after the re inspection authority is determined. If it cannot be handed over on time due to objective reasons, it can be extended for 3 working days with the consent of the market supervision and administration department that accepts the re inspection. The delivery method of re inspection samples shall be determined by the preliminary inspection authority and the applicant through consultation. Those that cannot be determined through negotiation and can be determined by the market supervision and administration department that accepts the re inspection application shall not be delivered by the re inspection applicant.
 
After receiving the backup samples, the re inspection authority shall confirm the integrity of the backup samples’ outer packaging, seals, etc. by taking photos or videos, and make a record of the sample reception. If the seals and packages of the backup samples are damaged, or other conditions that affect the determination of the results occur, the reinspection authority may refuse to accept the reinspected samples, and the reinspection authority shall report in writing to the market supervision department within 2 working days; If it is necessary for the preliminary inspection institution to make a statement, the preliminary inspection institution shall make a written statement; If the reinspection authority fails to report within the time limit, it shall bear relevant responsibilities.
 
The preliminary inspection institution shall ensure that the transportation process of the backup samples for re inspection meets the storage conditions indicated in the relevant standards or samples.
 
If it is found that there are cases of replacing samples or artificially destroying the seals and outer packages of samples, the market supervision and administration department, together with relevant departments, will seriously investigate and deal with the relevant responsible units and personnel in accordance with the law.
 
Article 12 when carrying out re inspection, the re inspection authority shall use the same inspection method as the preliminary inspection authority. When implementing the re inspection, if the food safety standard has new provisions on the inspection method, its provisions shall prevail.
 
The preliminary inspection institution may send personnel to observe the implementation process of the re inspection institution, and the re inspection institution shall cooperate. The preliminary inspection institution shall not interfere with the re inspection. If the re inspection authority does not arrange or cooperate with the request to observe the implementation process of the re inspection, the preliminary inspection authority may report to the market supervision and administration department that accepts the re inspection, and if problems are found in the re inspection, it may report to the market supervision and administration department that commissioned the re inspection.
 
Article 13 The re inspection authority shall submit the re inspection conclusion to the market supervision and administration department within 10 working days from the date of receiving the backup samples. Without the permission of the market supervision and administration department, the applicant or a third party shall not be informed of the re inspection conclusion in advance. If the time limit is otherwise agreed between the market supervision and administration department and the re inspection authority, such agreement shall prevail. The re inspection conclusion issued by the re inspection authority is the final inspection conclusion.
 
The market supervision and administration department shall, within 5 working days from the date of receiving the re inspection conclusion, notify the applicant of the re inspection conclusion and notify the market supervision and Administration Department of the place where the unqualified food producers and operators are located.
 
Article 14 the applicant for re inspection shall pay the re inspection fee to the re inspection authority in advance. If the re inspection conclusion is consistent with the preliminary inspection conclusion, the re inspection fee shall be borne by the re inspection applicant. If the re inspection conclusion is inconsistent with the preliminary inspection conclusion, the re inspection cost shall be borne by the market supervision and management department that implements the supervision and sampling inspection.
 
The re inspection fee includes the inspection fee and the relevant expenses incurred by the sample delivery.
 
 Chapter III objection work
 
Article 15 in the work of food safety supervision and sampling inspection, food producers and operators may apply for objection handling according to law on the sampling process, sample authenticity, inspection methods, standard application and other matters of the food they produce and operate.
 
If there is any objection to the sampling process, the applicant shall submit a written application to the market supervision and administration department that implements the supervision and sampling inspection within 7 working days after the completion of the sampling, and submit relevant supporting materials. If it fails to do so within the time limit or fails to do so as required, it shall be deemed that there is no objection.
 
In case of any objection to the authenticity of the sample, the inspection method, the application of the standard and other matters, the applicant shall, within 7 working days from the date of receiving the notice of the unqualified conclusion, submit a written application to the market supervision and administration department that organizes the supervision and sampling inspection, and submit relevant supporting materials. If no objection is raised within the time limit or no valid supporting materials are provided, it shall be deemed that there is no objection.
 
The provincial market supervision bureau is responsible for handling the objection application entrusted by the State Administration of market supervision.
 
Article 16 the dissenting applicant shall submit the following materials (see the annex for details):
 
(1) objection handling application;
 
(2) conclusion of food safety sampling inspection果通知书(抽样过程异议不提供);
 
  (3)申请人营业执照或其他资质证明文件;
 
(4) documented enterprise standards (if used);
 
  (5)与异议内容相关的证明材料;
 
  (6)申请人员非企业法定代表人或负责人本人的,申请人还应当提交有委托人签名或者盖章的委托书及双方身份证复印件,委托书应当载明委托事项和权限。
 
  第十七条 异议申请材料不符合要求或者证明材料不齐全的,市场监督管理部门应当当场或者在5个工作日内一次告知申请人需要补正的全部内容。
 
  市场监督管理部门应当自收到申请材料之日起5个工作日内,出具受理或者不予受理通知书。不予受理的,应当书面说明理由。
 
  第十八条 异议审核需要其他市场监督管理部门协助的,相关市场监督管理部门应当积极配合。
 
  对抽样过程有异议的,市场监督管理部门应当自受理之日起20个工作日内,完成异议审核,并将审核结论书面告知申请人。
 
  对样品真实性、检验方法、标准适用等事项有异议的,市场监督管理部门应当自受理之日起30个工作日内,完成异议审核,并将审核结论书面告知申请人。需商请有关部门明确检验以及判定依据相关要求的,所需时间不计算在内。
 
  因不可抗力等特殊情况不能在规定期限内完成审核的,经本单位负责人批准,审核时间可以适当延长。
 
  市场监督管理部门应当根据异议核查实际情况依法进行处理,并及时将异议处理申请受理情况及审核结论,通报不合格食品生产经营者住所地市场监督管理部门。
 
  第十九条 对于真实性异议的,市场监督管理部门及时向生产经营者所在地市场监督管理部门核实样品真实性有关情况,市场监管部门应按照规定时限反馈核查情况。反馈情况中证据证明材料需完整、清晰、闭合、可追溯。对于在规定时限内无法完成核查的,生产经营者所在地市场监督管理部门应及时书面向相关市场监督管理部门说明情况。涉及多个市场监督管理部门需协同查办的,相关市场监督管理部门应严格把控核查时效与证据证明完整性,及时反馈核查结果。市场监督管理部门可根据核查实际情况,及时组织会议并督办异议核查工作。
 
  申请人提出检验方法、标准适用异议的,应当同时提交采用初检检验方法、初检检验标准可能导致检验结论误判的证据。市场监督管理部门可根据食品安全标准及有关部门、风险会商、专家意见等,做出异议处理结论。
 
  第四章 工作管理
 
  第二十条 被抽样单位或被抽样品的生产者可申请复检和异议。被抽样单位和被抽样品的生产者不一致时,需双方协商统一后由其中一方提出。涉及委托加工关系的,委托方或被委托方对检验结论有异议的,需双方协商统一后由其中一方提出;对于进口食品,被抽样单位或境内代理商、经销商等对检验结论有异议的,可多方协商统一后由其中一方提出申请。
 
  第二十一条 申请人关于食品安全监督抽检工作的复检和异议申请事项应当在规定时间内全部提出。
 
  申请人仅提出异议申请的,市场监督管理部门作出审核结论后,不再受理申请人其他的异议申请事项。
 
  申请人在规定时限内同时提出复检和异议申请的,或在规定时限内提出多个异议申请的,市场监督管理部门就申请事项进行审定,如确有需要市场监督管理部门将一并受理。
 
  第二十二条 复检申请人应当自收到交费通知书后3个工作日内,先行向复检机构交纳复检费用,逾期不交纳的,视为放弃复检。
 
  申请人在市场监督管理部门作出受理决定前或异议审核结论作出前及复检机构开始复检样品前自愿撤回复检和异议申请的,应当提交书面申请,经受理的市场监督管理部门同意,可以撤回。复检开始后申请撤回的,复检费用不予退还。
 
  第二十三条 复检申请和异议申请以书面申请为主。经市场监督管理部门和申请人确认,可以通过电子邮件等方式申请(纸质材料寄送)。
 
  第二十四条 市场监督管理部门办理的复检和异议工作,应及时将审核结论书面告知申请人,并及时在国家食品安全抽样检验信息系统上登记异议事项、填报异议申请信息及审核相关情况,方便负责核查处置的市场监督管理部门跟踪了解相关情况。
 
  第二十五条 复检机构无正当理由拒绝承担复检任务的,由县级以上人民政府市场监督管理部门给予警告;无正当理由1年内2次拒绝承担复检任务的,市场监督管理部门可停止其承担的食品安全抽检任务。市场监督管理部门已确定的复检机构不得以下列理由拒绝承担复检任务:
 
  (一)工作繁重、人员不足;
 
  (二)检测方法不擅长;
 
  (三)仪器设备损坏,且无法提供合理合法证据;
 
  (四)其他不正当理由。
 
  第二十六条 复检结论与初检结论不一致的和异议被认可的,初检机构应分析原因,5个工作日内向市场监督管理部门提交书面情况说明,市场监督管理部门认为有必要的,可就此开展专项调查。
 
  第二十七条 坚持“谁主张,谁举证”原则,食品生产经营者应当对自己的异议申请提供相应的证明材料,抽样单位和初检机构应当对抽样过程、检验过程的合法性承担举证责任,各方应当对提供证明材料的真实性负责。食品生产经营者提供虚假证明材料的,依据相关法规处罚。初检机构调换样品、伪造检验数据或出具虚假检验报告的,市场监督管理部门会同有关部门依据相关法规处罚。
 
  第五章 附则
 
  第二十八条 各市、县、自治县市场监督管理部门可参照本规范制定本级食品安全监督抽检复检和异议工作规范。
 
  第二十九条 评价性抽检不合格食品复检和异议工作参照本规范执行。
 
  第三十条 本规范关于工作时限有关内容,参照《中华人民共和国民法典》第二百至二百零四条有关规定执行。
 
  第三十一条 本规范由省市场监管局负责解释。
 
  第三十二条 本规范自2022年8月15日起施行。
 
  附件:1.  Notice of Hainan provincial market supervision administration on printing and distributing the working specifications for sampling, re inspection and objection of food safety supervisionimage 复检实施流程图