Economic Observer Online
April, 20, 2012
By Xu Zhiyong (许志永), a public interest lawyer and activist
Translated by Song Chunling
Original article: [Chinese]

With the Melamine Milk Scandal of 2008 still lingering in people's minds, the news of the widespread use of "poisonous capsules" that was exposed by the mainland media last week has once again shocked the public.

As soon as news of the poison pills began to emerge, local governments made a big show to the media of how much they were doing to deal with the scandal - the State Food and Drug Administration, the General Administration of Quality Supervision, Inspection and Quarantine, the State Administration for Industry and Commerce and other government departments were all clamoring to react swiftly and decisively.

However, despite this noise and fury, a drug manufacturer in one of the regions where these poison capsules were produced - the county of Fucheng (阜城县) in the central province of Hebei - had already been exposed for similar crimes by the media eight years ago.

At the time, the company was strictly regulated by local authorities for a three-month period but here we are eight years later and industrial gelatin is still being used in the manufacture of medical capsules.

How could this happen?

In a democratic society that operates according to the rule of law, citizens have many ways of protecting themselves from harm - these include both litigation and regulation by the state.

For example in the U.S.,  if an elderly person is burned by the hot coffee served in a McDonald's restaurant, he or she could turn to the media, lawyers and perhaps even an NGO to help sue the restaurant and get hundreds of thousands of dollars in compensation.

Another example is the role played by regulatory authorities. The Food and Drug Administration in the US acts like the "food police," and employs 9,000 people across the country. If it's found not to have enforced the regulations properly, the regulator can also be sued and may have to pay compensation.

However in China, food scandals exposed by the media can be "harmonized," the rights of lawyers and NGOs are limited and as the courts are too weak, when cases are considered in the least-way public, they become "sensitive."

Given the importance of food and drug safety, it’s obviously not enough to simply depend on market competition, the media, public interest lawyers and litigation to make sure that companies act in accordance with regulations.

Real-time supervision by the State Food and Drug Administration, the General Administration of Quality Supervision, Inspection and Quarantine, the State Administration for Industry and Commerce and other relevant departments is also needed.

Compared with the American institutions, the comparative administrations in China are bigger and employ more staff. So why do serious food and drug safety incidents happen time and time again?

What are these regulators up to?

It seems only when a scandal is suddenly exposed by the media and when higher levels of government begin to take an interest, that these institutions become nervous and act fast, often unreasonably and with disregard for legal procedures.

When things die down, however, everyone who was caught up in the scandal attempts to make use of their personal relationships with people in power.

Those officials who were removed from their positions find work in another area, those who were sent to jail are released on bail for medical treatment, the factories that were shut down are reopened - whereever there are personal relationships (guanxi), there is also the chance of a new lease on life.

Chinese laws are strict and the Chinese government can be harsh - however when personal connections are so important and all enterprises know how important it is to have someone looking out for them, is it still possible to expect the regulators to fulfill their duties when they have such a complicated relationship with the industries they are expected to regulate?

To quote the title of an essay by the well-know Taiwanese author Lung Ying-tai (龙应台), or Long Yingtai in pinyin, from a collection titled The Wild Fire published in the 1980s, "Chinese People, Why Aren't You Angry?" (中国人，你为什么不生气?)

Although we know most of the time it's no use getting angry, this is simply the way things are in China.

There are many things that we can do to improve food and drug safety, for example making the payment of punitive damages part of our legal system; constantly reforming and adjusting the roles of the regulators and even engaging in large scale attempts to improve morals - but we soon learn that these only treat the symptoms and cannot cure the disease.

There has only been an opening-up of the economy - not of society or politics, the regulators are failing at their tasks and the legal authorities lack backbone, now is the time for us to start rethinking how we plan to reform and open-up.

This commentary was edited by Paul Pennay