This article is part of a series: Click Food Law in Vietnam: Part 1 for the previous article.
by Russin & Vecchi's lawyers
Under Decree 80/2013/ND-CP of the Government dated 19 July 2013 ("Decree 80") on Administrative Sanctions against Violations in Standards, Measurements, and Quality of Products and Goods, the following goods are subject to recall:
- Imported or manufactured goods whose quality does not conform with a standard conformity certification, or circulating goods that are unsafe for the consumers;71
- goods that violate applicable technical regulations;72
- goods violated labeling laws.73
- circulating goods that violate regulations on compulsory contents for labels;74
- goods whose codes and barcodes contain Vietnam's code (893), but the use of such code has not been permitted; goods with codes and barcodes which belong to different enterprises; goods with markings which may be confused with codes or barcodes;75
- goods with foreign codes which are produced in Vietnam only for export if the use of such codes has not yet been allowed in writing by competent foreign agencies or their foreign owners;76
The recall of foods is discussed in article 55 of the LoFS. The following foods must be recalled:
- expired foods which are in circulation;
- foods which do not conform to applicable technical regulations;
- foods created from new technology, the circulation of which is not allowed;
- spoiled foods;
- foods made of a prohibited substance or which contain polluting agents which exceed applicable limits;
- imported foods which contain polluting agents which can cause personal injury and which have been identified publicly as harmful by the exporting country, by another country, or by any international organization.
This article also provides forms of recall, the disposition of recalled foods, and the responsibilities of certain individuals, organizations, and competent State bodies in connection with the recall.
Under article 22 of the LoCP, in case of a defective product, a responsible business organization or individual must publicly announce recall of the defective product in five successive issues of a central daily newspapers or have the news of the recall broadcast on a central radio station or a central television station five times on five successive days. The announcement must include the following:
- Description of the product to be recalled;
- Reason for the recall and warnings of injury which may be caused by the defective product;
- Time, location, and form of the recall;
- Time and method to repair the defect; and
- Measures which should be taken to ensure that consumers' interests are protected.
Responsibility for inspection of the quality of food products is divided among five ministries. The MOST has primary responsibility to examine and announce the quality of goods in general and of foods in particular.77 The MOH is authorized to conduct inspections of the hygiene and safety of local and imported foods that are circulating in the market.78 The MOIT is responsible for issues involved in the manufacture, sale, and circulation of foods.79 The MARD is responsible for state management of the hygiene and safety of agricultural products, forestry products, aquatic products, and salt. MARD is also responsible for hygiene and safety in connection with importation of animals, plants, and materials to grow, cultivate, or process. This includes temporary import for re-export, temporary export for re-import, and passage through Vietnam.80 The Ministry of Natural Resources and Environment ("MNRE") exercises state management of environmental protection in the manufacture and trade of foods81 . However, in practice, any one of these five ministries can initiate an inspection regarding foods.
In general, quality inspections are conducted by inspection teams or individual inspectors. The team or individual is tasked with: (1) investigating compliance with legislation on quality, (2) imposing sanctions, and (3) applying or proposing, in accordance with its authority, measures for preventing or ending a violation.
Based on the above, matters which may be investigated during inspections include:
- whether the quality of goods distributed in the market conforms to the quality stated in the announcement;
- whether the quality of goods complies with compulsory Vietnamese standards;
- whether the quality of goods distributed in the market conforms with regulations on safety, hygiene, and the environment;
- whether labels are compliant;
- whether equipment used to measure and/or weigh goods provide accurate results; and
- whether the method of production, sale, or purchase of goods in the market are compliant with regulations.
Inspectors are given a great deal of power. They may:
- order the entity being inspected to provide all pertinent samples, information, documents, and explanations necessary for the inspection;
- request that the entity being inspected facilitate the activities of the inspectors;
- confiscate samples of goods and have them tested;
- make a record of the inspection and recommend to the head of the relevant quality control agency measures to be taken in the future;
- apply measures for the prevention and handling of violations; and
- in the event that any evidence of criminal conduct is discovered, transfer such evidence to criminal investigation authorities.
The contents and conclusions of the inspection and all recommendations are made in an inspection report. The inspection report is central to resolving problems. The LoQPG states that organizations and individuals may lodge complaints with state agencies against an administrative decision or an act of an agency or officer which they consider to be illegal and/or which infringes their rights and interests.82
All imported goods are subject to the regulations described above. Food imported into Vietnam must meet the following additional safety assurance conditions:
- a technical regulation conformity announcement must be registered at a competent state agency before the food is imported;
- the food importer must obtain a notice of satisfaction of import requirements issued by a designated inspection agency for each goods lot as prescribed by relevant ministers;
In addition to the conditions prescribed above, imported functional food, micronutrient-fortified food, genetically modified food, and irradiated food must be accompanied a certificate for free sale or health certificate.
If the Vietnamese government has not yet promulgated relevant technical regulations applicable to certain imported foods, food additives, processing aids, imported food-packaging tools, food packages, or containers, international agreements and treaties to which Vietnam is a contracting party will apply.
The procedures to announce technical regulation conformity of imported foods are discussed above in the subsection entitled Announcement Procedures, p 4.
Imported foods are exempt from State inspection of their safety in the following cases:84
- Personal foods brought by individuals upon entry for private consumption within international norms are exempted from import duties;
- Foods in diplomatic or consular bags;
- Foods in transit and trans-shipment;
- Foods stored in bonded warehouses;
- Foods to be used as prototypes or research samples;
- Foods to be used as samples displayed in fairs or exhibitions.
Foods imported from countries which have concluded treaties on mutual recognition of food safety certification with Vietnam are eligible for inspection reduction, except in cases where a threat or a violation on Vietnamese law on food safety has been discovered.
In general, there are no specific export requirements for food products. In principle, it is the overseas buyer of a food product that sets the quality, safety, or hygienic standards with which the product must comply.
In practice, the overseas buyer usually asks whether the food exporter is in compliance with International Standardization Organization ("ISO") provisions. Further, the food product must follow international standards on hygiene and safety known as HACCP. The principle of HACCP is to define and isolate critical points in the process that may pose a food safety hazard. Processors are responsible for producing safe, marketable food, and food exporters are responsible to provide safe food in accordance with HACCP.
In addition, an overseas buyer may require a Certificate of Free Sale ("CFS") issued by the MOH for food products intended for export. If so, the food exporter must apply for the Certificate from the MOH.85 According to informal information, the food exporter should request the MOH to issue a CFS along with a sales contract that specifies that a Certificate is required by the overseas buyer. Assuming that it has announced the standards on quality, safety, and hygiene of the foods intended for export, the exporter will receive the Certificate.
However, if the exported food product falls onto the "list of goods subject to State quality examination," the food exporter must proceed with a quality examination under the MOH. Export requirements that relate to foods are the same as those discussed in the section titled "IMPORT REQUIREMENTS." A successful examination will help facilitate compliance with customs procedures which apply to foods for export.
Decree 59/2005/ND-CP of the Government dated 4 May 2005 on Conditions of Manufacture and the Business of a number of Aquatic Professions ("Decree 59")86 gives the Ministry of Aquatic Products ("MOAP")87, along with other ministries, bodies, and provincial people's committees, the responsibility to organize the inspection and examination of aquatic business activities and to resolve violations.88 That term includes aquatic animals and plants, aquatic animal and plant products, feed for aquatic and marine life, aquatic plant protection products (eg, chemicals), veterinary medicines for aquatic life, fishing nets, and other gear.
Entities involved in trading or producing aquatic products are subject to regulations on inspection and certification to assure compliance with standards of food safety and hygiene.
To be more specific, the following subjects must be inspected:
- The registered manufacturing and trading premises of aquatic products, and fishing vessels with a main engine of at least 50 CV (hereinafter referred to "Fishery Aquatic Establishment")89;
- The lot where the aquatic foods are subject to inspection and certification of quality and food safety.90
Inspection and Certification of Fishery Aquatic Establishment
Local inspection and certification bodies, along with the National Agro-Forestry-Aquatic Quality Assurance Department are responsible for inspecting and certifying establishments.91 With respect to the Fishery Aquatic Establishment, there are three types of inspection: inspection for assessment and clarification, periodic inspection,92 and unscheduled inspection. Every separate fishery aquatic establishment that is approved for food hygiene and safety standards under inspection for assessment and clarification is entitled to an approval code attached to a certificate with 3-year-term.93 For many aquatic foods, inspections will take the form of either documentation or specimen inspection.94
A Fishery Aquatic Establishment under Article 2.1, Circular 55 which satisfies all food hygiene and safety standards, but which has several minor failures will be given a "pass".95 However, if an establishment does not satisfy food hygiene and safety standards, if correction in a short time is not possible, and continued production would have a serious impact on food hygiene and safety standards, such an establishment will be given a "fail" grade.96 A failed Fishery Aquatic Establishment will be re-inspected. Any issued certificate on satisfaction of food hygiene and safety standards or business registration certificate with be withdrawn, and be subject to an administrative penalty if it still fails to satisfy the conditions upon re-inspecting.
Grades of A, B, or C are given to establishments under Article 15 of Circular 55. Grade A means that the establishment satisfies all food hygiene and safety standards. Grade B establishments satisfy food hygiene and safety standards, but have some minor failures. Grade C establishments do not satisfy food hygiene and safety standards, but the failures can be remedied within a short time (no more than 30 days after inspection). Only grade A or grade B establishments meet food hygiene and safety standards.97
State Inspection and Certification of Aquatic Products Quality
Aquatic products, whether produced for domestic consumption, export, or import, are subject to regulations which apply to inspection and certification of food hygiene and safety.98 This inspection is made per lot of aquatic products and a certificate of aquatic products quality will be granted per lot. A single Health Certificate is granted to each lot of aquatic products for export.99 There are no regulations on the quantity and size of containers for aquatic products.
Grounds for inspection and certification of aquatic products are as follows:
- The inspection and certification of aquatic products produced for domestic consumption are based on technical regulations on food hygiene and safety issued by the MARD and other ministries and offices, and are also based on the quality announcement of food business operators ("FBOs").
- The inspection and certification of aquatic products for export to certain markets that MARD monitors and so require periodic inspection for management purposes; the inspection and certification of aquatic products imported for processing, and of aquatic products recalled or returned from foreign countries are based on technical regulations on food hygiene and safety issued by MARD and other ministries and offices.
- The inspection and certification of aquatic products for export to markets which require food hygiene and safety inspection and certification conducted by the competent authorities are based on food hygiene and safety regulations issued or approved by importing countries.
The following authorities are responsible for the hygiene, safety inspection, and certification of aquatic products:
- Division on Agro-Forestry-Fisheries Quality Assurance or authorities which are assigned by the Department of Agriculture and Rural Development to control the quality, hygiene, and safety of aquatic products before they are put into circulation for domestic consumption. In addition, the Agro-Forestry-Fisheries Quality Assurance Department may conduct unannounced inspections as assigned by the MARD.100
- Authorities under the control of the National Agro-Forestry-Fisheries Quality Assurance Department inspect and certify the quality, hygiene, and safety of aquatic products for export, aquatic products imported for processing, and aquatic products recalled or returned from foreign countries.101
With respect to aquatic products for export, the FBOs must register for inspection by sending a dossier for food hygiene and safety inspection registration to inspecting bodies in person, via postal mail, email, fax (confirmed by telephone), or online.102 After on-site inspection, the inspectors grant a health certificate for each lot of the FBOs that fulfills compulsory requirements.
Announcement of Quality Standards of Specialty Aquatic Products
There are separate regulations for specialty aquatic products, called Temporary Regulations on Announcing Quality Standards of Specialty Aquatic Products.103 The Regulations stipulate that aquatic animals and plants for breeding purposes; industrial processed foods for aquatic farming; medicines, chemicals, and biological products used in aquatic farming; and nets and other instruments used in aquatic exploration are subject to announcement procedures of quality standards. Before the products can be sold in Vietnam, announcement procedures must be carried out at the Office of Aquatic Resources Protection in the region where the head office of the establishment is located, whether the products are produced locally or are imported. If there is no Office of Aquatic Resources Protection in the region, announcement procedures will be carried out at the Bureau for Protection of Aquatic Resources.
The announcement application should include:104
- Original completed announcement form on quality standards (this is a standard form provided by the MOAP);
- Original announcement on quality standards issued and stamped by the applicant;
To complete these two forms, the applicant105 must provide its standards for the specific aquatic product. As described above, such standards are set by the applicant and the applicant's decision is made in writing, stamped, and executed by the applicant. An original copy of such decision should be included in the announcement application. Furthermore, if the standards set by the applicant meet either a Vietnamese standard or an international standard, the applicant should include such additional information.
In addition, the application should include:
- Certificate of the results of tests which relate to the quality of the aquatic products; and
- Label or draft label of the aquatic product.
The applicant will know whether its announcement is accepted by the local department of the MOAP within seven days from the date of submission. If the announcement is accepted, the applicant is responsible for complying with its announced quality standards and is subject to periodic inspection by the competent state agency on the quality of its specialty aquatic products.106 If there is a change in the announced quality standards, the applicant must announce the change.107
Safety and Quality Requirements for Aquatic Products for Export
The value of aquatic products exported by Vietnam has risen steadily. Vietnam is a prominent supplier. The Government believes it is important that proper standards be maintained to ensure confidence in aquatic products that come from Vietnam.
In fact, establishments which export aquatic products must strictly comply with Vietnamese regulations on food hygiene safety and specific standards applicable to aquatic products. They must also comply with requirements of importing countries.108
Like any food products, aquatic products should conform to HACCP. In addition, exported aquatic products must be sanitary. This requires an exporter to follow GMP, which is the basic regime for food manufacturers. The principles are straightforward and aim to prevent contamination of food through unsanitary practices. There is a close relationship between HACCP and GMP, inasmuch as GMP is considered to be a prerequisite to HACCP. Without GMP, the risks are greater.
Vietnamese exporters must also establish their own quality control system to conform to international criteria and/or the requirements of the importing countries. Aquatic products for export are subject to Circular 55.109 The Government has taken that step to encourage aquatic products exporters voluntarily to adopt HACCP, GMP, and other international criteria.
71Decree 80, art 18.5.
72Id, art 19.7.
73Id, art. 25.3.
74Id, art 26.7.
75Id, art 27.4.
76Id, art 27.4.
77Decree 79/2008/ND-CP of the Government dated 18 July 2008 regulating the System of Organization, Management, Inspection and Analysis of Food Hygiene and Safety, art 2.
78Id, art 2.1.
79Id, art 2.3.
80Id, art 2.2.
81Id, art 2.5.
82LoQPG, art 64.1.
83LoFS, art 38.
84Decree 38, art 14.
85There are no specific provisions on application procedures. 86Decree 59 has been amended by Decree 14/2009/ND-CP dated 13 February 2009 and Decree 53/2012/ND-CP dated 20 June 2012.
87The MOAP is responsible for coordinating state management of aquatic products. See Inter-Ministerial Circular 24/2005/TTLT-BYT-BTS of the MOH and MOAP dated 8 December 2005 guiding the Assignment and Co-ordination of State Management of Hygiene and Safety of Aquatic Products, art I.1.a. 88Decree 59, art 17.
89Circular 55/2011/TT-BNNPTNT by MARD dated 3 August 2011 on Inspection and Certification of Quality and Safety of Aquatic Foods ("Circular 55"), art 2.1.
85Id, art. 2.2, and art. 1 of Circular 25/2010/TT-BNNPTNT by MARD dated April 8, 2010 on Inspection Hygiene and Safety of Imported Animal Foods ("Circular 25").
91Id, art 5.
92Id, art 11.
93Id, art. 16.1(a).
94Id, art 24.
95Id, art. 15.2.
96Id, art 15.3.
97Id, arts 15.1 and 15.2.
98Id, art. 1.
99Id, art. 27.1.
100Id, art. 5 and art. 21, and Circular 61/2012/TT-BNNPTNT dated November 13, 2012 of the MARD on the control of hygiene and safety of aquatic products before circulation for domestic consumption, art. 5.
101Id, art. 5 and art. 8.3(b) of Circular 25.
102Id, art 9.4.
103 These temporary regulations were issued in connection with Decision 425/2001/QD-BTS of the Minister of Aquatic Products dated 25 May
2001. This Decision was abrogated by Decision 1149/QD-BNN-PC by MARD dated 23 April 2009, but detailed implementing regulations on announcing quality standards for speciality aquatic products have not yet been issued.
104 Id, art 7.
105 The applicant is the producer if the speciality aquatic product is locally produced. The importer or the distributor is the applicant if the speciality aquatic product is imported.
106 Id, art 10.1.
107 Id, art 10.2.
108 Circular 55, art. 22.2.
109Id, art. 2.1.
This article is part of a series: Click Food Law in Vietnam: Part 3 for the next article.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.