Outsource Power, Import Safety? Challenges and Opportunities of the US-China Food Safety Regulatory Cooperation
72(1) Food and Drug Law Journal (Forthcoming)
35 Pages Posted: 21 Nov 2016
Date Written: March 15, 2016
The United States has a high stake in China’s serious food safety problem, as food products of Chinese origin have dominated the US food market in numerous areas and continued to grow. The conclusion of the US-China Food Safety Agreement has allowed the FDA to strengthen regulatory cooperation with its Chinese counterpart in various aspects. The Agreement also paves the way for the implementation of the new regulatory tools incorporated in FSMA, especially in the cross-border context. However, both the Agreement and FSMA have certain crucial limitations that may create future hurdles to effective implementation in the US China cooperation. This paper therefore endeavors to first examine China’s governance challenges over food safety, with a focus on the 2009 Food Safety Law, the 2015 Amendment, and the fundamental problem of “thin” rule of law. This paper moves to analyze the US-China Food Safety Agreement, reviewing the agreement’s strengths and weaknesses. It further assesses FSMA’s innovative institutional design to regulate imported food products and its limitations. However, both the US-China Food Safety Agreement and FSMA arguably create a regulatory dilemma for the FDA when addressing imported food safety, due to structural mismatch between the broad scope of power granted to the FDA and the long chain of power outsourcing to governments or private companies as primary “regulators.” Neither the Agreement nor FSMA give the FDA adequate capacity to closely oversee such “agents” along the chain of power outsourcing. Framing the US-China food safety cooperation as a multilayer structure that “outsources power” in order to “import safety,” this paper concludes by stressing the need for a robust accountability and effective mechanism for US-China food safety cooperation.
Keywords: Food Safety, International Cooperation, China, FSMA
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