This article is part of a series: Click Food Law in Vietnam: Part 1 for the next article.
This article is part of a series: Click Food Law in Vietnam: Part 2 for the next article.
by Russin & Vecchi's lawyers
All organizations and individuals have the right to lodge complaints regarding violations that relate to the quality of food products.110 They may even make a complaint regarding wrong-doing by a government official responsible for implementing or enforcing the laws and regulations on the quality of food products.111 The authorities must respond to such complaints.112
All individuals and organizations, including foreign individuals and organizations, that commit an administrative violation that relates to the quality of goods will be sanctioned.113 The Civil Code states that: "individuals, legal persons, etc. that are producers or who do business without ensuring the quality standards of goods and that injure any consumer must compensate" the consumer.114 Inspectors who specialize in technology and science (such as inspectors, Chief Inspectors and Head of a delegation of inspection of the Department of Science and Technology, Head of a delegation of inspection of the General Department of Standards, Metrology and Quality, Chief Inspectors and Head of a delegation of inspection of the MOST, Manager of the General Department of Standards, Metrology and Quality), presidents of People's Committees of all levels, the police, the customs department, market management agencies, and certain specific inspection agencies have the right to deal with administrative violations.115 Once a violation has been discovered, the law gives the government much flexibility in the form and scale of punishment.116
Depending on the nature and severity of violations which involve standards, measurements, and quality, an organization or individual may be subject to one or more specific types of sanctions. One such sanction is cancellation of the right to use certificates of conforming technical specifications; certificates on satisfaction of business conditions; inspection certificates; and so on.117
Apart from principle and additional sanctions, administrative violators may be subject to the following remedies: restoration of the condition which was altered by administrative violations, recovery of sums of money illegally gained from the commission of administrative violations, recall of products or goods or recall of measuring devices which violate standards, and so on.118 Also, products or goods must be destroyed if they are not safe for humans, animals, plants, and the environment.119
Enforcement agencies are given guidance as to which sanctions to impose or how large a fine should be.120 Generally, the maximum fine in measurement for an individual is VND100 million, and VND200 million for an organization. The maximum fine in standard or quality of products and goods for an individual is VND150 million, and VND300 million for an organization, except for several specific cases.121
The regulations do list extenuating and aggravating circumstances, as well as situations where sanctions are not to be applied. Such regulations are general and refer to violations of many laws, not just to violations related to food.
Extenuating circumstances include:122
- The offender attempts to mitigate the damage caused by the breach or to deal voluntarily with the consequences and to compensate the injured;
- The offender voluntarily declares his violation or repents of the violation;
- The violation is committed in a state of nervous excitement caused by the illegal acts of other persons;
- The violation is caused by coercion or force;
- The violating party is a pregnant woman, an old and sick person, a diseased person, a disabled person, or a person with limited awareness or control over his actions;
- The violation is committed in especially difficult circumstances not brought about by the offender; or
- The breach was committed as a result of backward thinking.
Aggravating circumstances include:123
- Organized violations;
- Repeated and/or extensive violations;
- Enticement by the offender of underage persons to commit a violation, or forcing dependent persons to commit a violation;
- Utilizing someone who is mental ill or who has impaired cognitive abilities, or impaired ability to control his or her behavior;
- Conduct abusive and defamatory actions to a person who is on duty;
- Undertakes administrative violations with hooligans;
- The offender abuses a position of power in committing the violation;
- The offender takes advantage of wartime conditions, natural disasters, or other social difficulties in order to commit the violation;
- An offender persists in the violation despite the request of an authorized person to cease;
- The violation is committed while the offender is serving a criminal sentence or subject to an administrative penalty;
- The offender attempts to evade responsibility for or conceal the violation;126
- Violations are large in scale or in value; and
- Violations affect a large number of people, children, the elderly, the disabled, or pregnant women.
Situations where no sanction should be applied include:124
- Where the offender had no choice due to urgent circumstances, unforeseen contingent events, natural disasters, war and similar situations, and every measure to overcome the difficulties has been taken;
- The offender suffers from a mental or other disease that is confirmed by a medical agency and which causes him or her to lose awareness or behavioral control.
Within 10 days (or 30 days for complicated cases) the relevant government agency will issue a decision on how to handle the administrative violation.
An injured party may demand compensation by filing suit with the Civil Division of the People's Court under the Civil Procedure Code.
Regulations on foods have been improved and simplified. A good example is the replacement of the complex rules regarding registration of food quality, hygiene, and safety. A regime of announced food quality, hygiene, and safety now applies. This change provides a shortened and simplified system which should not impair standards.
The rules on food continue to develop in a way that recognizes the greater sophistication of the Vietnamese food industry, consumer needs, and import, export, and processing standards. The reality is that the laws must continue to evolve. Rules that were intended to regulate the quality of goods in general are not adequate to regulate the quality of food products. There is a clear recognition of this, but, as is often the case in Vietnam, the process of change and implementation is measured, deliberate, and time-consuming.
List of cited Laws, Ordinances, Decrees, Circulars and Regulations classified by subject and by chronological order
|Subject||Pages||Name of legal documents||Issued by||Issued on|
|Law on Standards and Technical Specifications 68/2006/QH11||National Assembly||29 June 2006|
|Circular 21/2007/TT-BKHCN on the Establishment and Use of Standards, amended by Circular 29/2011/TT-BKHCN of the MOST dated 15 November 2011||MOST||28 September 2007|
|Law on the Quality of Products and Goods 05/2007/QH12||National Assembly||21 November 2007|
|Decree 63/2012/N?-CP providing the Functions, Duties, Authorities and Organization of the MOH||Government||31 August 2012|
|Decree 38/2012/N?-CP providing Detailed Regulations Implementing of some articles of the Law on Food Safety||Government||25 April 2012|
|Circular 19/2012/TT-BYT guiding announcement of standard conformity and announcement of food safety conformity||MOH||9 November 2012|
|Safety and Hygiene||6||Law on Food Safety||National Assembly||17 June 2010|
|Law on Consumer Protection||National Assembly||17 November 2010|
|Circular 15/2012/TT-BYT promulgating Regulations on General Conditions of Food Safety applicable to Food Processing Establishments||MOH||12 September 2012|
|Labeling||6-9||Circular 08/2004/TT-BYT guiding Management of Functional Foods||MOH||23 August 2004|
|Decree 89/2006/ND-CP on the Labeling of Goods||Government||30 September 2006|
|Decision 02/2007/QD-BYT promulgating Regulations on Hygiene and Safety of Cigarette Products, amended by Inter-Ministerial Circular 05/2013/TTLT-BYT-BCT guiding the label of and printing health warnings on packs of cigarettes of the MOH and MOIT dated 8 February 2013||MOH||15 January 2007|
|Circular 09/2007/TT-BKHCN guiding a number of Articles of Decree 89/2006/ND-CP, amended by Circular 14/2007/TT-BKHCN of the MOST dated 25 July 2007||MOST||6 April 2007|
|? Decree 119/2007/ND-CP on Manufacturing and Trading of Cigarettes||Government||18 July 2007|
|Circular 14/2007/TT-BKHCN amending Circular 09/2007/TT-BKHCN guiding a number of Articles of Decree 89/2006/ND-CP||MOST||25 July 2007|
|Circular 02/2011/TT-BCT of the MOIT guiding Decree 119/2007/ND-CP on Manufacturing and Trading of Cigarettes||MOIT||28 January 2011|
|Law on Prevention of Harmful Effects of Cigarettes||National Assembly||18 June 2012|
|Advertising||10-11||Decree 24/2003/ND-CP providing Detailed Regulations Implementing of the Ordinance on Advertising||Government||13 March 2003|
|Inter-Ministerial Circular 01/2004/TTLT-BVHTT-BYT guiding Advertising Activities in the Domain of Health||MOCI, MOH||12 January 2004|
|Decree 21/2006/ND-CP on the Business and Use of Nutritious Products for Infants||Government||27 February 2006|
|Inter-Ministerial Circular 06/2007/TTLT-BVHTT-BYT-BNN-BXD guiding One-door Procedures to Grant Advertising Permits||MOCI, MOH, MARD, MOC||28 February 2007|
|Law on Advertisement No. 16/2012/QH13||National Assembly||21 June 2012|
|Circular 08/2013/TT-BYT guiding food advertising under the control of MOH||MOH||13 March 2013|
|Decree 181/2013/ND-CP providing detailed regulations implementing some articles of the Law on Advertising||Government||November 14, 2013|
|Circular 10/2013/TT-BVHTTDL provides detailed regulations implementing the Law on Advertisement and Decree 181 on legitimate documents, the organization and operation of Appraisal Council of Advertised Products and the assignment of state management on advertisement||MCST||December 6, 2013|
|Recall||12-13||Decree 80/2013/ND-CP on Administrative Sanctions against Violations of Standards, Measurements and Quality of Products and Goods||Government||19 July 2013|
|Law on Food Safety 55/2010/QH12||National Assembly||17 June 2010|
|Law on Consumer Protection||National Assembly||17 November 2010|
|Inspections||13-14||? Law on the Quality of Products and Goods 05/2007/QH12||National Assembly||21 November 2007|
|Decree 79/2008/ND-CP regulating the System of Organization, Management, Inspection and Analysis of Food Hygiene and Safety||Government||18 July 2008|
|Import Requirements||15-17||Decree 163/2004/ND-CP Implementing a number of Articles of the Law on the Quality of Products and Goods||Government||7 September 2004|
|Circular 19/2012/TT-BYT promulgating on Announcement of Standard Conformity and Announcement of Food Safety Conformity||MOH||November 9, 2012|
|Decision 50/2006/QD-TTg promulgating the List of Goods subject to State Quality Examination||Prime Minister||7 March 2006|
|Circular 05/2007/TT-BYT guiding Conditions and Procedures to nominate Organizations to Implement State Inspection on Quality, Hygiene and Safety of Imported Foods||MOH||7 March 2007|
|Decision 23/2007/QD-BYT promulgating Regulations on State Inspection of the Quality of Hygiene and Safety of Imported foods||MOH||29 March 2007|
|Export Requirements||18||Decision 50/2006/QD-TTg promulgating the List of Goods subject to State Quality Examination||Prime Minister||7 March 2006|
|Decree 59/2005/ND-CP on Conditions of Manufacture and Business of a number of Aquatic Professions, amended by Decree 53/2012/N?-CP on the amendment of some articles in aquatic area dated 20 June 2012||Government||4 May 2005|
|Inter-Ministerial Circular 24/2005/TTLT-BYT-BTS guiding the Assignment and Co-ordination of State Management of Hygiene and Safety of Aquatic Products||MOH, MOAP||8 December 2005|
|Circular 55/2011/TT-BNNPTNT of the MARD providing the inspection, certification of quality and safety of aquatic products||MARD||3 August 2011|
|Decision 1149/Q?-BNN-PC abrogating certain legal documents||MARD||23 April 2009|
|Enforcement||23-25||Law on Dealing with Administrative Violations 15/2012/QH13||National Assembly||20 June 2012|
|Civil Code 33/2005/QH11||National Assembly||14 June 2005|
||National Assembly||11 November 2011|
||Government||3 October 2012|
|Law on the Quality of Products and Goods 05/2007/QH12||National Assemblytd>||21 November 2007|
|Decree 08/2013/ND-CP on Administrative Sanctions against Violations in Standards, Measurements and Quality of Products and Goods||Government||19 July 2013|
|Law on Food Safety 55/2010/QH12||National Assembly||17 July 2010|
110Law on the Quality of Products and Goods,
111Ordinance on Hygiene and Safety of Foods, art 49.1.
112Law on the Quality of Products and Goods, art 46.4.
113Decree 80/2013/ND-CP dated 19 July 2013 on Administrative Sanctions against Violations in Standards, Measurements and Quality of Products and Goods ("Decree 80"), art 2.
114Civil Code, art 630.
115Decree 80, arts 29, 30 & 31.
116Id, arts 2 & 3.
117Id, art 2.2.
118Id, art 2.3.
119Id, art 20.
120Id, Chapter II.
121Id, art. 3.
122Law no. 15/2012/QH13 dated 20 June 2012 on Dealing with Administrative Violations, art 9.
123Id, art 10.
124Id, art 3.6.
126Id, art 56.1.
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.