Are You Ready for China's New Food Labeling Requirements?

At the end of 2019, both the State Administration of Market Regulation (SAMR) and the National Health Commission (NHC) proposed significant changes to two cornerstone food labeling documents for public comments:

• In November 2019, SAMR published the draft Measures for Supervision and Administration of Food Labeling ("draft Measures")[1] and notified the draft to the World Trade Organization (WTO)[2] on December 12, 2019;

• On December 31, 2019, NHC published the revised draft Food Safety National Standard for the Labeling of Prepackaged Foods (GB 7718-2011)[3] with a comment period due by February 28, 2020.

Both labeling documents include detailed requirements for food labeling and have significant implications on the current labeling practices for both locally produced and imported foods.

The proposed amendments by SAMR and NHC regulating Chinese food labeling laws are intended to address the issues that emerged in the past decade and provide guidance to the food industry and additional protection to consumers.

The following highlights some of the proposed labeling changes that the food industry will need to be mindful of to ensure compliance in China.

Chinese Labeling Must be Completed During Food Manufacturing

Article 14 of the draft Measures mandates Chinese labeling to be carried out during the food manufacturing process. In practice, oftentimes, an imported product is affixed with a Chinese sticker at the port or even after customs clearance. The draft Measures will now require the smallest selling units of all imported food to be properly labeled prior to customs inspection.

Accordingly, it will be very difficult to revise or fix a labeling error at the port since so-called "double stickering" will be prohibited. Furthermore, redirecting food from another country to China will not be allowed if the food sold abroad does not possess a Chinese label.

Declaration Formats for Food Additives Revised yet to be Reconciled

The draft Measures expand food additives subject to mandatory substance name declaration to include emulsifiers and thickeners,[4] and allow food additives, other than sweeteners, preservatives, colorants, emulsifiers, and thickeners, to be represented by their substance name, class name, or INS number. However, in draft GB 7718, only when a food additive is already represented by its class name and the largest surface area of the label is less than 60 cm² can its substance name be substituted by its INS number. It remains to be seen how these inconsistencies will be resolved in the final version of these documents.

Labeling Information Slightly Revised

In addition to the food name, which is required to be displayed distinctively under GB 7718, the draft Measures require the food's production date, shelf-life, and warnings to be declared at a prominent location on the label in a distinctive manner.

Declaration of production date and shelf-life, which can be made in any order under GB 7718-2011, shall be carried out in the order of year, month, and day per the GB 7718 proposal.

Voluntary On-label Claims Strengthened

The draft Measures reiterate that the Advertising Law and Anti-competition Law of China will be referenced when determining the compliance status of a voluntary product claim. In this regard, draft GB 7718 proposes more stringent scrutiny. For example, for food additives, contaminants, and substances that are not permissible in food by law or a food standard, claims such as "free...," and "not contain..." are not allowed. Claims such as "...not added," and "...not used" are also prohibited unless otherwise prescribed by law. "Non-GMO" is another example of a banned voluntary claim even if the finished product does not use any GMO ingredient.

The draft GB 7718 adds a definition of "country of origin," and allows both the source country of food ingredients and the country where the final product is made to be declared on the label.

Allergen Labeling Converted from Voluntary to Mandatory

Allergen labeling, which is only recommended in the current GB 7718, becomes mandatory in the draft proposal. Allergens that may result from cross-contamination also are subject to mandatory disclosure. Formats that must be followed by allergen labeling are provided in Annex E of the draft GB 7718.

Health Food Labeling Added to Measures

Health food labeling is among the most significant area of change in the draft Measures. In fact, the Chinese Government released a series of regulations to manage claims and naming of health food in 2019, e.g., Guidance for Warning Labels of Health Food,[5] Guidance for Naming of Health Food[6]. The draft Measures set forth some additional rules for the labeling of health food, including but not limited to the labeling format, content, marking, etc. The above documents should be carefully considered by a health food producer or seller in its daily practice. Keller and Heckman will prepare a separate China Regulatory Matters newsletter dedicated to the discussion on the regulatory requirements of health food and dietary supplements in China in the coming months.

Food labeling regulations are subject to frequent change in China, particularly given the evolving regulatory environment. Thus, industry should ensure all food labels comply with current laws in China, as a non-compliant label could result in significant delays at the port of entry. We will issue our Food Law Year in Review for China covering food regulatory updates that occurred during 2019 and are expected in 2020, so please stay tuned. Should you have any questions, please do not hesitate to contact David Ettinger (ettinger@khlaw.com), Jenny Xin Li (li@khlaw.com), Yin Dai (dai@khlaw.com), or your existing contact at Keller and Heckman LLP.

[1] http://www.moj.gov.cn/government_public/content/2019-11/21/657_3236134.html

[2] WTO Notification G/TBT/N/CHN/1401, available at: https://docs.wto.org/imrd/directdoc.asp?DDFDocuments/t/G/TBTN19/CHN1401.DOCX

[3] http://www.nhc.gov.cn/sps/s7891/201912/30e2c7d8dc7d4f96b8118f5513529d97.shtml

[4] Article 4.1.3.1.4, GB 7718-2011. Mandatory substance name declaration currently only applies to sweeteners, preservatives and colorants. Emulsifiers and thickeners can be declared in their class name with their corresponding INS number.

[5] http://gkml.samr.gov.cn/nsjg/tssps/201908/t20190820_306116.html?gs_ws=weixin_637018980805791087&from=timeline

[6] http://gkml.samr.gov.cn/nsjg/tssps/201911/t20191112_308443.html