Abstract
The exponential increase of food safety incidents in the past two decades has heightened public criticism and distrust over government regulatory failure worldwide, which has been responded by a proliferation of reforms. Taiwan is no exception to this trend, as numerous food safety scandals have utterly struck the country, generating even more pressure for an expedient, effective, and efficient overhaul. Against such backdrop, the legislature in Taiwan has assumed massive regulatory borrowing. There have been five amendments adopted by the legislature to the Act Governing Food Safety and Sanitation since 2013, each of which addressed different aspects of food safety regulation. In many instances, the amendments directly and unsystematically referred to and borrowed from the regulatory approaches adopted by the United States and the European Union, arguably without adequate consideration of or adaptation to local contexts. This chapter describes this approach as “cocktail therapy” and offers an explanation that the legislature has undertaken such ad hoc regulatory borrowing to save costs and secure legitimacy. Nevertheless, this chapter points out the limit of such regulatory transplant and emphasizes that proper consideration of the local context, including social, economic, political, and cultural factors, is of significant importance in the process of regulatory borrowing. Looking forward, this chapter suggests a constructive next step for the legislative drafter to seriously consider local problems, practices, and needs when learning from a foreign legal model. Only an internationally inspired yet locally adapted regulatory reform can reap benefits from regulatory borrowing as well as reserve a fertile land for regulatory acculturation.
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Notes
- 1.
See Lin (2011), p. 665.
- 2.
See Global Risk 2008: A Global Risk Network Report, World Economic Forum http://www.weforum.org/pdf/globalrisk/report2008.pdf. Accessed 30 March 2016. Motarjemi et al. (2001), pp. 340–341. Käferstein et al. (1997), pp. 503–510. Käferstein and Abdussalam (1999), pp. 347–351.
- 3.
Shipin Anquan Weisheng Guanli Fa (Act Governing Food Safety and Sanitation ), first enacted as Act Governing Food Sanitation on January 28, 1975, and later renamed as its current form in 2014 (Taiwan) [Act Governing Food Safety and Sanitation].
- 4.
Melamine and Cyanuric Acid: Toxicity, Preliminary Risk Assessment and Guidance on Levels in Food, pp. 2–3, World Health Organization, http://www.who.int/foodsafety/fs_management/Melamine.pdf. Accessed 30 March 2016.
- 5.
Toxicological and Health Aspects of Melamine and Cyanuric Acid: Report of a WHO Expert Meeting in Collaboration with FAO, WHO/Food and Agriculture Organization of the United Nations , pp. 15–16, http://whqlibdoc.who.int/publications/2009/9789241597951_eng.pdf. Accessed 30 March 2016. Prior to this incident, Korea, in 2004, and the United States, in 2007, reported outbreaks of renal failure of household pets which was caused by deliberate melamine adulteration Brown et al. (2007), pp. 525–531.
- 6.
Questions and Answers on Melamine, World Health Organization, http://www.who.int/csr/media/faq/QAmelamine/en/. Accessed 30 March 2016.
- 7.
Gossner et al. (2009), pp. 1804–1805.
- 8.
Id.
- 9.
Vivek et al. (2009), pp. 774–779.
- 10.
Apart from domestic regulatory reforms, Taiwan also sought to cooperate with China on cross-strait food safety issues. The two sides of the Taiwan Strait, through the Straits Exchange Foundation and the Association for Relations Across the Taiwan Strait, negotiated and concluded the Cross-Strait Food Safety Agreement on November 4, 2008. Cross-Strait Food Safety Agreement (4 November 2008), http://www.fda.gov.tw/TC/siteList.aspx?sid=1569 . Accessed 30 March 2016.
- 11.
Taiwan Food and Drug Bureau Coming Next Year, Taiwan New Economy Newsletter, p. 7 (No. 101, June 2009), http://www.ey.gov.tw/Upload/RelFile/74/55192/20090612141528705256.pdf. Accessed 30 March 2016.
- 12.
For more details of the case, see Chen et al. (2013), p. 242.
- 13.
Act Governing Food Safety and Sanitation , art. 4.
- 14.
Act Governing Food Safety and Sanitation , art. 8.
- 15.
Act Governing Food Safety and Sanitation, art. 7.
- 16.
Act Governing Food Safety and Sanitation, art. 11.
- 17.
Act Governing Food Safety and Sanitation, art. 9.
- 18.
Council Regulation 178/2002, Laying Down the General Principles and Requirements of Food Law, 2002 OJ (L 31) 1 (commonly referred to as EU General Food Law). See also Horng (2015), p. 1166.
- 19.
Act Governing Food Safety and Sanitation , art. 50.
- 20.
The case concerns Chang Chi Foodstuff Factory Co. which was found to have used copper chlorophyllin (an illegal coloring agent for cooking oil) in its olive oil and adulterated its higher-end cooking oil with cheaper cottonseed oil. Chang Chi Foodstuff Factory Co. was fined NT$ 28.6 million by the TFDA. See Flavor Full Food Admits Adulterating Its Edible Oil, Taipei Times (25 October 2013), http://www.taipeitimes.com/News/front/archives/2013/10/25/2003575318. Accessed 30 March 2016.
- 21.
Act Governing Food Safety and Sanitation , art. 56.
- 22.
Act Governing Food Safety and Sanitation, art. 56-1.
- 23.
Act Governing Food Safety and Sanitation , art. 4. See also Horng (2015), p. 1166.
- 24.
Queena Yen, Firm Sells Waste Oil as Cooking Oil, The China Post (5 September 2014), http://www.chinapost.com.tw/taiwan/national/national-news/2014/09/05/416497/Firm-sells.htm. Accessed 30 March 2016.
- 25.
Act Governing Food Safety and Sanitation, art. 2-1.
- 26.
Act Governing Food Safety and Sanitation , art. 7.
- 27.
Act Governing Food Safety and Sanitation, art. 9.
- 28.
FDA Food Safety Modernization Act, Pub. L. No. 111–353, 124 Stat. 3885 (2011) [FSMA] (codified in scattered sections of 21 USC §§301 et seq) §307.
- 29.
Act Governing Food Safety and Sanitation, Art. 8.
- 30.
See Guidance for Industry Codevelopment of Two or More New Investigational Drugs for Use in Combination, U.S. Food and Drug Administration http://www.fda.gov/downloads/Drugs/GuidanceComplianceRegulatoryInformation/Guidances/UCM236669.pdf. Accessed 30 March 2016. Of course, the levels of effectiveness, motivations of combining different ways, and regulatory backgrounds greatly differ between disease treatment (e.g., cancer and HIV/AIDS) and government regulation. Therefore, this “cocktail therapy” metaphor stays with its nominal meaning as described in the main text.
- 31.
Watson (1993), p. 21. The first edition of Watson’s book was published in 1974.
- 32.
Legrand (1997), pp. 111–113.
- 33.
Watson (1993), p. 95.
- 34.
Id., at p. 108.
- 35.
Id., at p. 96.
- 36.
Legrand (1997), p. 116.
- 37.
Cover (1983), p. 5.
- 38.
Of course, it is possible the borrowed rule can develop organically in the host country’s legal system under the influence of the cultural, political, economic, and social factors. Yet such transplant (not necessarily a transplant anymore) depends on the inherent integrative capacity of the country. See Legrand (1997), p. 118.
- 39.
See generally Echols (2002).
- 40.
Miller offers a typology of legal transplants, which serves as part of the basis of the analysis here. By examining the multifaceted developments in a variety of contexts relevant to regulatory transplants , Miller creates a typology that describes four types of factors that can motivate a transplant: the cost-saving transplant, the externally dictated transplant, the entrepreneurial transplant, and the legitimacy -generating transplant. See Miller (2003), p. 839.
- 41.
- 42.
deLisle (1999), pp. 280–302.
- 43.
Alstine (2002), p. 793.
- 44.
Miller (2003), p. 856.
- 45.
Id., at p. 845.
- 46.
Id.
- 47.
Id.; Watson (1996), p. 335.
- 48.
Miller (2003), p. 846.
- 49.
- 50.
Tushnet (1999), p. 1228.
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Lin, CF. (2016). The Limit of Regulatory Borrowing: “Cocktail Therapy” Reforms of Food Safety Law in Taiwan. In: Lo, Cf., Li, N., Lin, Ty. (eds) Legal Thoughts between the East and the West in the Multilevel Legal Order. Economics, Law, and Institutions in Asia Pacific. Springer, Singapore. https://doi.org/10.1007/978-981-10-1995-1_24
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