How to punish the unqualified tableware inspection

1. The nature of tableware According to the provisions of the "Food Safety Law", food-related products refer to packaging materials, containers, detergents, disinfectants used for food, and tools and equipment used for food production and operation. A more detailed distinction can be divided into the following situations (see Article 150 of the Supplementary Provisions of the "Food Safety Law" for specific regulations): the packaging materials and containers used to package and hold foods that are ready to be eaten directly ( The tableware mentioned below refers to this category). Those that come into direct contact with food or food additives during production and processing are tools and equipment for food production and operation. Therefore, in the practice of supervision and law enforcement, the first step is to distinguish whether the tableware is a food packaging container or a tool and equipment. The food safety requirements of the two are different. Therefore, only by clarifying the nature of the tableware, In order to correctly apply the relevant provisions. For example, if a plate is used to hold raw materials on the operating table, it belongs to tool equipment; if it is used to hold prepared dishes, it belongs to food containers (tableware).

2. Different requirements for packaging materials, containers, tools and equipment First, when purchasing food-related products, the legal obligation of users is Article 50 of the Food Safety Law: Do not purchase or use food-related products that do not meet food safety standards. Refers to the quality requirements of the product itself. The requirements for the use of tools and equipment are Article 33, Paragraph 1 (6) of the "Food Safety Law": they should be safe, harmless, and kept clean to prevent food contamination. The requirements for the use of packaging containers, that is, tableware are item (5) of this paragraph: they should be washed and disinfected before use. At the same time, item (7) stipulates the requirements for its own material: non-toxic and clean. At the same time, item (10) of this paragraph stipulates the cleaning requirements: the detergents and disinfectants used should be safe and harmless to the human body. However, in reality, there are still common cases of outsourcing of tableware cleaning and disinfection business. In this regard, Article 56 of the "Food Safety Law" stipulates that if a catering service provider entrusts cleaning and disinfection of tableware and drinking utensils, it shall entrust Centralized disinfection service units for tableware and drinking utensils under specified conditions.

3. Having clarified the above provisions, in practice, it is necessary to distinguish between different situations, and then apply the relevant legal provisions correctly:

Scenario 1: During the sampling inspection, the indicators of the material of the tableware itself are unqualified: it belongs to the purchase or use of food-related products that do not meet the food safety standards. Violation of Article 50, Paragraph 1 of the Food Safety Law shall be punished according to Article 125, Paragraph 1 (4).

Situation 2: The tableware is cleaned and disinfected by itself, but the test result is unqualified. There may be two reasons for this situation: one is that the cleaning agent or disinfectant used is unqualified; the other is that the water used for cleaning is unqualified or the cleaning and disinfection process is unqualified. Corresponding to Article 33, Paragraph 1, Items (9) and (5) of the "Food Safety Law", the specific situation should be judged according to the test results: For example, a friend from Hubei consulted the day before yesterday and said that the test result was anion If the synthetic detergent exceeds the standard, this situation should be that the cleaning process is unqualified, because if the cleaning agent or disinfectant is unqualified, it is not a problem of exceeding the standard, but a detection of toxic and harmful substances. But the question that confused this friend is that Article 33, Paragraph 1 (5) of the "Food Safety Law" only sets the obligation for operators to clean and disinfect, but does not set the results of cleaning and disinfection. Questions arose regarding the punishment in accordance with Item (5) of Paragraph 1 of Article 126. In fact, the answer is easy to understand: meeting the qualified requirements after cleaning and disinfection is an accompanying obligation of cleaning and disinfection, and there is no need for legal clarification. Therefore, it is not inappropriate to apply Article 126, Paragraph 1 (5) for punishment. At the same time, Article 70 of the "Regulations for the Implementation of the Food Safety Law" is also very clear: Except for the circumstances stipulated in the first paragraph of Article 125 and Article 126 of the Food Safety Law, the food producers and operators If the production and operation behavior does not comply with the provisions of Items 5, 7 and 10 of Paragraph 1 of Article 33 of the Food Safety Law, or does not meet the national food safety standards required by the relevant food production and operation process, the food safety law shall Penalties shall be imposed in accordance with the first paragraph of Article 126 and Article 75 of these Regulations.

Scenario 3: The outsourcing method of tableware cleaning and disinfection is adopted. In this case, mainly review the fulfillment of inspection obligations of catering business units, according to Article 56 and Article 58 of the "Food Safety Law" and Articles 26 and 20 of the "Regulations for the Implementation of the Food Safety Law" Article 7 stipulates that inspection obligations mainly include: first, review qualification (business license); second, inspection of disinfection certificate; third, inspection of unit name, address, contact information, disinfection date and batch number, and expiration date on the individual packaging of tableware. . If the inspection obligation is not fulfilled, such as the other party is an illegal unit, the disinfection certificate is not attached as required, and the content marked on the package does not meet the requirements, etc., it violates the provisions of the second paragraph of Article 56 of the "Food Safety Law", Penalties shall be imposed in accordance with the first paragraph of Article 126, and the legal basis is the provisions of Article 69 of the "Regulations for the Implementation of the Food Safety Law": Under any of the following circumstances, Article 126 of the Food Safety Law shall Paragraph 1, Article 75 of these Regulations shall impose penalties: (2) The catering service provider fails to check and retain the copy of the business license and the disinfection qualification certificate of the centralized disinfection service unit for tableware and drinking utensils; the theoretical basis is this Inspection, which belongs to the control requirements of food production and operation, is essentially different from the inspection of incoming goods in food circulation. The entrustment of tableware disinfection units that meet the provisions of this law as stipulated in the second paragraph of Article 56 of the "Food Safety Law" not only refers to the qualifications, but also includes substantive requirements. The tableware disinfection unit required by the law. If the inspection meets the requirements, but the test fails, it will be ordered to stop using it, and the disinfection unit will be transferred to the health department for punishment. Because whether it is the second paragraph of Article 126 of the "Food Safety Law" or Article 71 of the "Regulations for the Implementation of the Food Safety Law", the illegal acts of centralized disinfection service units for tableware and drinking utensils include cleaning and disinfection behaviors and The act of issuing relevant certificates and labels will be handled by the health department. However, the catering unit has fulfilled the inspection obligation in accordance with the law, and there is no fault, so it should not be punished. The problem is that if the inspection obligation is not fulfilled and the inspection is not qualified, how should the punishment be? The author believes that the catering unit should be punished if it fails to fulfill its inspection obligations; and the tableware test is unqualified