Wednesday, 29 October 2008

Who Moved Our Milk?

At the kind invitation of Prof. Chang-fa Lo at the Asian Center of WTO & International Health Law and Policy (ACWH) at the National Taiwan University in Taipei, I attended the Workshop on Public Health: International Trade and Domestic Legal Issues in Taipei from October 16 to 17. I presented a paper titled "Who Moved Our Milk? A Primer on the Domestic and International Legal Issues in the Contaminated Milk Case in China". The following is the "Introduction" Part of the paper:

The time was the summer of 2008, a season of pride and excitement for the Chinese as China was about to fulfill its century-old dream to host the Olympic Games on the land of 5000 years of civilization. As the Olympic Torch was carried across China's shinning new cities along the coast, the rumor of deadly baby milk powders also traveled in the backward towns and villages in the hinterland of China. At Eight PM Beijing Time on August 8, 2008, the big game was launched in Beijing with the biggest Opening Ceremony the world has ever seen. For the two weeks after that, the deafening sound of "Zhongguo Jiayou", or loosely translated into "Go China", drew people's attention away from everything else that is happening on this vast land, including the lonely cries of the babies who have been suffering from kidney problems after drinking certain milk powers. After another lavish party finally drew an end to the Games on August 24, newspapers across the country started to report various cases of kidney failures of babies after they drank baby milk formula manufactured by "a certain brand". On September 11, 2008, the Shanghai-based Oriental Morning Post published a story titled "Fourteen Babies in Gansu Province Developed Kidney Stones after Drinking Milk Powers made by Sanlu". This story is the first one to reveal the identity of the manufacturer: the dairy giant Sanlu Group, which is based in Shijiazhuang, the capital of the northern province of Hebei with a name that means literally in Chinese as "The Place Where the (Kidney) Stones Come From". On the same date, Sanlu announced that, upon discovering melamine in some of its baby milk powers as a result of its self-inspection, it will recall all baby milk powders produced before August 8, or the day the Olympic Games opened. Just as the same date in the US seven years ago, this date, September 11, 2008, will forever be remembered by many in China, including, as the scandal unravels in the next few weeks, the 50,000+ children who were affected by the tainted milk powders and their relatives; the manufacturers, importers, and retailers of the thousands of products worldwide contaminated by the same chemical; the dozens of suspects who were arrested in connection with the scandal; and, last but not least, the handful of senior government officials who were sacked amid the fallout.  

At the time this article is written, it still remains unclear as to exactly how melamine, a chemical that is usually found in paint and has no nutritional value whatsoever, was so widely used in virtually all dairy products manufactured in China. However, as the author is neither a medical practitioner nor a chemist, this question will not be the focus of the inquiry here. Instead, this article will discuss the possible legal responses to the case. In carrying out this task, it is useful to first lay down several premises that we know for sure: first, the dairy products have been contaminated with melamine; second, the contamination occurred during the production process in China; third, melamine was added by someone intentionally rather than inadvertently; and fourth, the contamination affected products destined for both domestic consumption and exports. With these commonly-accepted facts as the background, this article proceeds to discuss how a public health crisis is handled under the rules of both the domestic legal regime and multilateral trading system. After discussing the pros and cons of the legal responses under both regimes, this article argues that, while domestic legal actions usually provides the most direct and effective remedy, this is not always the case. Instead, for countries with defective legal regimes, legal actions under international rules, though usually slow and not always effective, might turn out to be the best strategy to fix the problem.

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