Regulations of Shanghai Municipality on Product Quality

· Document Number：Announcement No. 46 of the Standing Committee of Shanghai Municipal People’s Congress

· Area of Law： Industrial and Commercial Management

· Level of Authority： Provincial Local Regulations

· Date issued：04-19-2012

· Status： Effective

· Issuing Authority： Shanghai Municipality

Announcement of the Standing Committee of Shanghai Municipal People's Congress
(No. 46)
The Regulations of Shanghai Municipality on Product Quality are adopted on April 19, 2012 at the 33rd Session of the Standing Committee of the 13th Shanghai Municipal People's Congress, are hereby promulgated and shall come into effect as of September 1, 2012.
The Standing Committee of Shanghai Municipal People's Congress
April 19, 2012
Regulations of Shanghai Municipality on Product Quality
(Adopted at the 33rd Session of the Standing Committee of the 13th Shanghai Municipal People's Congress on April 19, 2012)
Chapter I General Provisions
Article 1 With a view to defining the product quality liability, strengthening the supervision and control over product quality, improving the level of product quality, protecting the legitimate rights and interests of consumers, and maintaining the social and economic order, these Regulations are formulated in accordance with the provisions of the Product Quality Law of the People's Republic of China, and other laws and administrative regulations, and in the light of the actual circumstances of this Municipality.
Article 2 These Regulations apply to the production and sale of products and relevant activities thereof, and the supervision and control over product quality in the administrative areas of this Municipality.
Products in these Regulations refer to the products processed or manufactured for the purpose of sale.
The provisions of these Regulations do not apply to construction projects but apply to building materials, components, accessory parts and equipment used in such construction projects which fall under the range of products specified in the preceding clause.
Article 3 Producers and sellers are main liability bodies of product quality, and shall engage in product production and marketing activities according to law, operate in good faith, take responsibility for the society and for the public, and accept administrative and social supervision.
Article 4 The municipal and district/county people's governments shall bring the work of improving product quality into the national economy and social development planning, strengthen the direction of the supervisory work on product quality, organize and coordinate all departments concerned to do well in supervision and control over product quality, and guarantee the implementation of these Regulations. The deliberation and coordination agency for quality safety set up by the Municipal People's Government shall take responsibility for research and deployment as well as the overall coordination of the major issues in the work of product quality in this Municipality.
The municipal quality and technical supervision department takes responsibility for the supervisory work of product quality in this Municipality, the district/county quality and technical supervision departments shall do well in exercising supervision and control over product quality in accordance with their respective functions and duties.
The industry and commerce administration departments of this Municipality takes responsibility for exercising the supervision and administration of product quality in the field of circulation; other relevant departments take responsibility for exercising supervision and control over product quality within their respective functions and duties.
Where laws and regulations provide otherwise for the supervisory department of product quality, such provisions shall prevail.
Article 5 This Municipality encourages enterprises to adopt advanced science and technology, and scientific quality control method to improve the quality of products, and push ahead with the creation of independent brand names.
This Municipality shall strengthen the basic construction of quality technology of product, raise the capability and level of such technical institutions as measurement, standardization, and quality test and detection, and shall encourage and promote the R&D of new technologies for quality test and detection to provide technical support for the work of product quality.
The municipal and district/county people's governments shall establish and perfect the system of quality award. Commendation and award shall be given to the units or individuals that have made outstanding achievements in exercising advanced quality management and making the product quality reach the international advanced level and to the units or individuals that have made conspicuous contributions for the study of the technology of production quality test and detection.
Article 6 Supervision by the general public and by public opinions over product quality shall be encouraged, supported and protected.
Relevant departments shall, in accordance with relevant provisions of the State and this Municipality, reward the units or individuals that have made meritorious deeds in reporting truthfully and giving assistance in investigating and dealing with the violations of laws and regulations on product quality.
Chapter II Responsibility and Obligation of Producers and Sellers
Article 7 The producer shall be responsible for the quality of its products.
The product quality shall fulfill the following requirements:
1. being free from any irrational danger that threatens the personal and property safety, and if there exists the state standard, the trade standard or the local standard that safeguards human health, and personal and property safety, such standard shall be met;
2. possessing such use properties as are inherent in the product, except with an explanation of the defects in its use properties; and
3. conforming to the product standard indicated on the product or on its package, or conforming to the quality conditions as indicated in the product instructions or by samples in kind or other means.
Gifts or awards provided by the producer, the seller or the service operator shall be in conformity with the provisions of Clause 2 of the present Article.
Article 8 An enterprise that has no state standard, no trade standard nor local standard in its production activity shall formulate an enterprise standard. Where there exists the state standard, the trade standard or the local standard, the enterprise is encouraged to formulate enterprise standard stricter than the state standard, the trade standard or the local standard to be applied therein.
Products manufactured by an enterprise shall be in conformity with its standard in effect by declaration.
Article 9 The producer shall establish a system for production quality control such as purchase inspection and check acceptance of raw auxiliary materials and parts, and product final examination to guarantee the product quality in conformity with requirements of laws, regulations and standards.
The producer shall establish product quality archives, recording truthfully matters about the purchase inspection and check acceptance of raw auxiliary materials and parts, and product final examination, sales and disposition of returns.
Article 10 Marks on the product or on its package shall be true and fulfill the following requirements:
1. showing certification of product quality inspection;
2. showing in Chinese the name of product, the name and address of the manufacturer;
3. showing in Chinese the specification, the grade, the name and the content of major ingredients of the product as necessitated by the properties and operation requirements of the product; where any matter needs to be revealed to the consumers, marks shall be made on the exterior package, or the relevant information shall be provided to the consumers beforehand;
4. showing clearly at the conspicuous place the production date and the service life or expiry date if the product has a limited service life;
5. showing warning marks or warning instructions in Chinese for the product that is liable to be damaged or to endanger the personal and property safety in case of misuse;
6. showing production license logo and serial number if the product is under the production license system;
7. showing the certification mark if the product is under the mandatory product certification system; and
8. other contents that shall be marked in accordance with relevant provisions of the State.
Product marks may not be attached to nude food or other nude products whose properties make it difficult to have marks attached.
Article 11 Imported products to be marketed by the seller shall bear indications in Chinese of the name and the address of the importer or the general distributor; products that are related to human health, or to the personal and property safety, or products that have special requirements for operation and maintenance, shall have instructions in Chinese attached; products with a limited service life must bear the expiry date in Chinese; products assembled with imported component parts or imported products separately packaged shall on themselves or on their packages bear the name and address in Chinese of the factory that did assembly or separate packing.
Article 12 Machinery, equipment, instruments, meters and complex durable consumer goods shall, in accordance with the properties of the product, be accompanied by instructions of installation, operation, repair and maintenance.
Article 13 Dangerous products that are fragile, flammable, explosive, noxious, corrosive or radioactive, and products that cannot be placed upside down during storage and transportation, and products that have special requirements shall have their packing quality conform to the relevant requirements and shall, in accordance with relevant provisions of the State, have warning marks or warning instructions in Chinese, showing points for attention in regard to storage and transportation.
Article 14 The seller shall implement the system of purchase inspection and check acceptance, check the inspection certificate and other marks, and record truthfully the matters thereabout. The seller shall also examine the license or the certificate of products that are under the mandatory product certification system in accordance with laws and regulations.
The seller shall, according to the product properties, take necessary storage measures in order to preserve the quality of the product for sale.
Article 15 The production or sale of the following products is prohibited:
1. the product prohibited from being produced or sold by the laws and regulations such as the Product Quality Law of People's Republic of China;
2. the product not conforming to the state standard, the trade standard or the local standard for ensuring human health, and personal and property safety;
3. the product beyond the safe use period or expiration;
4. the product that marks false production date, safe use period or expiry date;
5. the product that has the production quality test and detection certification fabricated or falsified ; and
6. the product without the product name, the manufacturer's name and the site of factory indicated in Chinese, except for those exclusively for export.
The service operators shall not provide or use the product specified in the preceding clause in the business service process.
The producer, the seller or the service operator shall not take the product specified in Item 1 of the present Article as an award or a gift.
Article 16 The seller shall take first responsibility for the quality of the sold product.
The seller shall be responsible for repair, replacement, and return of the sold product, and shall give compensations for losses, if any, to the users and consumers, if the product is in one of the following circumstances:
1. lack of operation properties inherent in the product without any prior explanation;
2. inconformity with the adopted product standard indicated on the product or on the package; and
3. inconformity with the quality condition indicated in the product description or by a sample product.
If the responsibility rests with the producer or supplier who has supplied goods to the seller, the seller shall have the right to recover losses from the producer or supplier.
Article 17 If the product defect causes personal injuries or property damages, the victim may claim compensation against the producer or the seller of the product. If the responsibility rests with the producer while damages have been paid by the seller, the latter shall have the right to recover from the producer or the importer of the imported product. The importer of the imported product shall have the right to recover according to law from the supplier of the imported product. If the responsibility rests with the seller while damages have been paid by the producer, the latter shall have the right to recover from the seller of the product.
Article 18 The producer shall carry out an investigation on initiative after the active circulation of the product upon learning that the product of a certain batch, model number or type possibly has any irrational danger to endanger human health as well as personal and property safety. Where a defect in the product is confirmed, the producer shall in a timely manner adopt such remedial measures as warning or recalling, and report to the quality and technical supervision department. The producer is encouraged to launch recalling activities for other issues regarding product quality.
Article 19 This Municipality encourages the producer and the seller to take out relevant product liability insurance to improve the level of product quality and the compensation capability for accidents of product quality.
Article 20 Every unit and individual that organize a trade fair or provide places or facilities to a seller shall, after the end of the trade fair or the termination of the lease of place or facilities, assume the quality liability of imperfect and defective products according to law, and have the right to recover from the seller of the product.
No unit or individual shall provide conditions facilitating transportation, preservation or storage for production and sales of the product specified in Clause 1 of Article 15, and, upon finding that the producer or the seller has any law-breaking act, shall report to the relevant department, and shall not give indulgence or shelter.
Article 21 The printer of product marks, when printing product marks, shall check the relevant certificates, and shall not print or provide fake product marks, nor provide the non-consigner with product marks.
Chapter III Administrative Supervision
Article 22 The municipal quality and technical supervision department shall, jointly with the municipal administrative departments of industry and commerce administration, economy and informatization, business affairs, construction and communications, public security and fire control, public health, food and drug supervision, agriculture, and finance, organize the formulation of this Municipality's quality control catalogue of major products and the citywide inspection scheme for product quality control.
This Municipality's quality control catalogue of major products shall be made public by the municipal quality and technical supervision department.
Article 23 The quality and technical supervision department shall, in accordance with relevant provisions of the State and this Municipality, organize random inspection of product quality and make public the result thereof at regular intervals. Major points of random inspection are as follows:
1. the product which is likely to endanger human health and personal and property safety;
2. the major industrial product that has impact on the national economy and the people's livelihood; and
3. the product with quality problems reported by consumers or relevant organizations.
Article 24 The industry and commerce administration department shall, in accordance with the State's relevant provisions and this Municipality's requirements on product quality supervision, exercise quality monitoring over the product in the field of circulation which is likely to endanger human health and personal and property safety as well as the product with quality problems reported by consumers or relevant organizations.
Article 25 Relevant administrative department shall coordinate mutually and avoid repetition in exercising the random inspection or quality monitoring.
The test job of random inspection and quality monitoring shall be assigned to a qualified test agency; where a required test item is beyond the scope of the qualifications of the test agency owing to such special circumstances as contingencies, the municipal quality and technical supervision department may temporarily appoint another test agency with corresponding detection capability to do the test job.
Article 26 The municipal quality and technical supervision department shall, jointly with relevant departments, formulate this Municipality's predetermined schemes on the disposition of major product quality safety accident, and organize the coordinated investigation and disposition of accidents.
Article 27 The basis for test and determination of product quality include:
1. the state standard, the trade standard, the local standard, and the enterprise standard;
2. the quality conditions manifested by the product mark, the content expressed on the product package, or the product description or a sample in kind;
3. the technical standard for random inspection of product quality approved by the State and the municipal quality and technical supervision department; and
4. other provisions provided by laws and regulations.
Article 28 The product quality test agency shall make tests by the standard, the procedures and the method according to law, shall not counterfeit test data and results, and shall assume the legal liability for the test report issued.
The product quality test agency shall not recommend to the public the producer's product; nor participate in business activities thereof by means of supervising manufacture or sales; and shall not use the check result of random inspection and quality monitoring to launch activities of product recommendation and appraisal through comparison to profiteer illegally.
Article 29 Any producer or seller who has objection against the test result may make a recheck application in writing in accordance with the State provisions within 15 days upon the receipt of the test result. Where the recheck result conforms to the original result, the recheck expense shall be borne by the producer or seller who raised the objection; where the recheck result does not conform to the original result, the recheck expense shall be borne by the administrative department that assigned the test.
Where the producer or the seller does not make a recheck application within the prescribed time limit, the test result is deemed to have been accepted.
Article 30 Where a product is found unqualified by a random inspection and a quality monitoring conducted according to the law, the producer or seller shall check up the stock and the product on sale, dispose of the unqualified product in accordance with the law, and report in writing to relevant departments. Relevant departments may organize the examination and verification as required.
Where a product is found unqualified by a random inspection conducted according to law, the producer shall make rectification and apply for recheck as required. The producer who fails to apply for a recheck within the prescribed time limit without rational reasons is deemed as failing to make rectification, and shall be made public by the municipal quality and technical supervision department; in case of failure to make the rectification and to apply for the recheck after the announcement, the product is deemed as unqualified after recheck.
Where the producer of unqualified products found out in the random inspection is in other provinces or cities, the municipal quality and technical supervision department shall refer the matter to the provincial-level quality and technical supervision department at the locality of the producer.
Article 31 The quality and technical supervision department as well as the industry and commerce administration department, when dealing with suspected violations of the provisions of these Regulations based on the suspected law-breaking evidence or report obtained, may exercise the following powers:
1. to conduct on-site inspection over the place where the party engages in production and marketing activities in suspected violation of these Regulations;
2. to take sampling evidence of the product;
3. to investigate and inquire of the legal representative of the party concerned, the chief person in charge and other persons concerned about the matters relating to the production and marketing activities in suspected violations of these Regulations;
4. to review and duplicate the relevant contracts, invoices, account books, and other relevant materials of the party concerned; and
5. to seal up or seize the product thought with reason to be incompliance with the state standard, the trade standard or the local standard for safeguarding human health and personal and property safety, or the product with other severe quality problems, as well as the raw accessory materials, wrappers and production tools directly used in the production and sale of the said product.
Article 32 This Municipality pushes ahead with the building of a good faith system of product quality, exercise quality credit classification administration, increase the supervision frequency of the producer and the seller with bad credit records; launches the work of the enterprise's self-declaration of product quality, and an enterprise which has its self-declaration inconsistent with the reality or fails to observe the self-declaration shall be brought under the bad credit record and be made known to the public according to law.
Relevant departments of this Municipality shall jointly strengthen the supervisory management of the enterprises that have illegal activities of product quality, the administrative departments of quality and technical supervision, industry and commerce administration, economy and informatization, commercial affairs, construction and communications, public security and fire control, public health, food and drug supervision, and agriculture, shall establish a copy system for the law-enforcement information.
For an enterprise that has been on-file-case for investigation owing to its law-breaking acts of product quality, the department that received the copy information shall give a prompt in the annual inspection examination and in the re-issuance of relevant certificates and licenses, urging that enterprise to accept disposition at relevant department.
Article 33 The municipal and district/county quality and technical supervision departments shall, jointly with the administrative departments of industry and commerce administration, economy and informatization, business affairs, construction and communications, public security and fire control, public health, food and drug supervision, and agriculture, release the analysis report of product quality status at regular intervals.
Chapter IV Social Supervision
Article 34 Any unit or individual has the right to report against problems of product quality. Relevant departments shall keep confidentiality for the reporter.
The quality and technical supervision department, the industry and commerce administration department, and relevant departments shall make public the contact manner for accepting the report on product quality; and shall record and keep in a timely and properly manner the received information in whole. In respect to a report that falls into its duty, the department shall accept the report and make objective, just and timely verification, disposition and reply; if the matter does not fall into its duty, the department shall refer the matter within 5 working days to the department that has the right to handle it, and shall notify the reporter as well.
Article 35 Every consumer has the right to inquire the problems of product quality of the producer or the seller, and to complain to the department of technical supervision, industry and commerce administration, and other relevant departments. Relevant departments that accepted the complaint shall take the responsibility for disposition.
Article 36 The social organization for the protection of consumers' rights and interests may suggest that the relevant departments handle the problems of product quality reported by consumers, may participate in the supervision and inspection of product quality organized by relevant departments, and may support consumers in filing lawsuits to the people's court for damages caused by inferior product quality.
Article 37 The mass media such as broadcast stations, television stations, newspapers and periodicals, and Internet websites shall exercise social supervision over product quality, introduce to consumers the knowledge of product quality, publicize laws and regulations on the supervision and control of product quality, expose and criticize the illegal acts in the production, sale and test of products.
Article 38 The trade associations shall strengthen self-discipline, guide and urge the producers and the sellers to operate business according to law, push ahead with the building of good faith, participate in the formulation of standards, find out and report in a timely manner to the administrative department the protruding problems and potential safety hazards of product quality in their own industry, disseminate and popularize the knowledge of product quality.
Article 39 The judicial organs, arbitration institutions, administrative departments, relevant social organizations for handling disputes of product quality as well as both parties to a dispute of product quality shall, in need of an assessment of product quality, entrust an assessment agency of product quality to conduct assessment. The name list of assessment agencies shall be made public by the municipal quality and technical supervision department.
Chapter V Legal Liability
Article 40 Where relevant laws and administrative regulations have provided for punishment of the violations against the provisions of these Regulations, such provisions shall prevail.
Article 41 Where a product has marks inconsistent with the requirements, in violation of the provisions of Article 11 of these Regulations, or has no specifications attached, in violation of the provisions of Article 12 of these Regulations, the quality and technical supervision department or the industry and commerce administration department shall issue an order for corrections in accordance with their respective functions and duties; in case of a serious case or refusal to make corrections, an order shall be issued for cessation of production and sale, and a penalty of not more than 30% of the amount of the value of the product illegally produced and sold shall be imposed; and the illegal gains, if any, shall be confiscated.
Article 42 Where a producer, seller or service operator has one of the following circumstances, the quality and technical supervision department or the industry and commerce administration department shall give punishment in accordance with their respective functions and duties:
1. For production or sale of a product that does not conform to the state standard, the trade standard or the local standard for safeguarding human health and personal and property safety, in violation of the provisions of Item 1, Clause 1 of Article 15 of these Regulations, an order shall be issued for cessation of production and sale, the product illegally produced and sold shall be confiscated, and a fine of not less than the equivalent amount of but not more than three times the value of the product illegally produced and sold (including both the sold and unsold product, similarly hereinafter) shall be cumulatively imposed; the illegal gains, if any, shall be confiscated.
2. For sale of a product that is either beyond the safe use period or the expiration, in violation of the provisions of Item 3, Clause 1 of Article 15 of these Regulations, punishment shall be given in accordance with Article 52 of the Product Quality Law of the People's Republic of China regarding the provisions on punishment for selling expired and addle products.
3. For production or sale of a product marked with a false production date, a false safe use period or a false expiry date, or a product with the test and check certificate of product quality that is fabricated or falsified, in violation of the provisions of Item 4 and Item 5, Clause 1 of Article 15 of the Regulations, an order shall be issued for cessation of production and sale, the product illegally produced or sold shall be confiscated, a fine of not more than the equivalent amount of the value of the product illegally produced or sold shall be imposed; the illegal gains, if any, shall be confiscated.
4. For production or sale of a product without the product name, the manufacturer's name and the site of factory indicated in Chinese, in violation of the provisions of Item 6, Clause 1 of Article 15 of these Regulations, an order shall be issued for the producer to make corrections and for the seller to stop sale; for refusal to make corrections or to stop sale, a fine of not more than 30% of the amount of the value of the product illegally produced or sold shall be imposed; the illegal gains, if any, shall be confiscated.
5. For provision or use, in business service, of the product prohibited from production or sale, in violation of the provisions of Clause 2 of Article 15 of these Regulations, an order shall be issued for cessation of use; if the user knows or ought to know that the product in use is prohibited from production and sale by these Regulations, punishment shall be given in accordance with the provisions of items 2 to 4 of this Article on punishment imposed on the seller by reference to the amount of the value of the product illegally used (including that used and unused).
6. For giving a product prohibited from production or sale as an award or a gift, in violation of the provisions of Clause 3 of Article 15 of these Regulations, an order shall be issued for corrections, the award and gift shall be confiscated, and a fine of not more than 50% of the amount of the value of the award or gift shall be cumulatively imposed.
Article 43 Where a person provides convenience for transportation, preservation or storage of a product that he/she knows or ought to know is prohibited by these Regulations from production or sale, in violation of the provision of Clause 2 of Article 20 of these Regulations, the illegal gains shall be confiscated by the quality and technical supervision department or the industry and commerce administration department according to their respective functions and duties, and a fine of not less than 50% of but not more than three times the illegal gains shall be cumulatively imposed.
Article 44 Where a printer of product marks fails to check the relevant certificates when printing or making product marks or prints and provides false product marks, or provides product marks to a non-consignor, in violation of the provisions of Article 21 of these Regulations, the quality and technical supervision department or the industry and commerce administration department shall, according to their respective functions and duties, issue an order for cessation of production and provision, confiscate the product marks illegally printed or provided and the sales income therefrom, and may, in addition, impose a fine of not less than one time but not more than five times sales income; if a crime is constituted, the wrongdoer shall be prosecuted for criminal liability according to law.
Article 45 Where a test agency has one of the following circumstances, the quality and technical supervision department shall give punishment:
1. For counterfeiting test data and results, in violation of the provisions of Clause 1 of Article 28 of these Regulations, an order shall be issued for corrections, a fine of not less than 50,000 yuan but not more than 100,000 yuan shall be imposed on the unit, and a fine of not less than 10,000 yuan but not more than 50,000 yuan on the person in direct charge and other person directly responsible; the illegal gains, if any, shall be confiscated; if the case is serious, the test qualification shall be cancelled.
2. For recommending to the public a producer's product, participating in product business activities by means of supervising manufacture or sales or using the check results of random inspection and quality monitoring to launch activities of product recommendation and appraisal through comparison to profiteer illegally, in violation of the provisions of Clause 2 of Article 28 of these Regulations, an order shall be issued for corrections and clearance of influence, the illegal gains, if any, shall be confiscated, and a fine of not more than one time the illegal gains shall be cumulatively imposed; if the case is serious, the test qualification shall be canceled.
Article 46 Where a producer or a seller fails to clear up or dispose of sub-quality products, or fails to report in writing to relevant department, in violation of the provisions of Clause 1 of Article 30 of these Regulations, a fine of not less than 10,000 yuan but not more than 50,000 yuan shall be imposed by the quality and technical supervision department or the industry and commerce administration department in accordance with their respective functions and duties.
Article 47 A fine of not less than 10,000 yuan but not more than 100,000 yuan shall be imposed for any law-breaking act set out in these Regulations without sales income or illegal gains or with sales income or illegal gains whose amount of the goods value is difficult to confirm owing to no provision of true information concerned.
Article 48 The party may, through consultation or mediation, solve a civil dispute about product quality. The party that is not willing to solve the dispute or cannot have the dispute solved through consultation or mediation may apply for arbitration to the arbitration institutions in accordance with the agreement of the parties concerned; the party may also file a lawsuit to the people's court directly.
Article 49 Any state employee who abuses powers, neglects duties, or practices favoritism and irregularities in the work of product quality supervision and control shall be given administrative sanctions by the unit he/she works in or by the superior authority. If the act constitutes a crime, the wrongdoer shall be prosecuted for criminal liability according to law.
Chapter VI Supplementary Provision
Article 50 These Regulations shall be effective as of September 1, 2012. The Regulations of Shanghai Municipality on the Supervision of Product Quality adopted at the 12th Session of the Standing Committee of the 10th Shanghai Municipal People's Congress on August 26, 1994 and amended at the 3rd Session of the Standing Committee of the 11th Shanghai Municipal People's Congress on June 24, 1998 shall be repealed at the same time.