What penalties do businesses face under the Food Safety Law when a barbecue restaurant's bright kitchen and stove livestream captures a chef spitting mouthwash on the edge of a pot?
Lead
Recently, a live broadcast of a barbecue restaurant's "Bright Kitchen and Stove" has attracted widespread attention on social media. The screen shows that a chef in the back kitchen of the store allegedly spat mouthwash directly onto the edge of the pot during the operation. After the incident escalated, the chef involved responded that it was a "personal habit", while the store stated that they had taken action against the parties involved. Regardless of the final investigation conclusion, this incident has once again brought the issue of hygiene management in the catering kitchen to the public. From a legal perspective, this is not just an "operational error" or "personal behavior", but directly touches upon the mandatory provisions of the Food Safety Law on the control of food production and operation processes, involving multiple legal evaluations of administrative penalties, civil compensation, and even criminal risks.
1、 'Personal behavior' is not a shield from liability, and it is difficult to separate the responsibilities of employers
After the incident was exposed, the involved stores responded with "chef's personal behavior" and attempted to limit responsibility to individual employees. But under the legal framework of food safety, this kind of cutting is not valid.
Article 4 of the Food Safety Law stipulates that food producers and operators are responsible for the safety of their food production and operation. This means that regardless of who completes the specific operation, the catering service provider, as the operating entity, has a legal obligation to manage the hygiene status and operating standards of the kitchen. Article 33 of the Food Safety Law further clarifies that food processing, storage, and other places should maintain a clean environment and maintain a prescribed distance from toxic, harmful, and other sources of pollution; Food production and operation personnel should maintain personal hygiene. When producing and operating food, they should wash their hands and wear clean work clothes, hats, etc.
The chef spat mouthwash on the edge of the pot, clearly violating the above operating procedures. According to Article 126 of the Food Safety Law, if a food producer or operator fails to store, sell, or clear inventory of food in accordance with regulations, or if a catering service provider fails to formulate and implement production and operation process control requirements in accordance with regulations, the food safety supervision and management department of the people's government at or above the county level shall order correction and give a warning; Those who refuse to make corrections shall be fined not less than 5000 yuan but not more than 50000 yuan; Those with serious circumstances shall be ordered to suspend production and business until their license is revoked.
In other words, stores cannot claim exemption on the grounds of "employee personal behavior". The target of administrative penalties is the operators themselves, not just individual chefs involved in specific operations. If a store cannot prove that it has established and implemented an effective food safety management system, punishment is almost unavoidable.
2、 Mingchu Liangzao is not a "live show", but a transparency of legal obligations
In recent years, "Mingchu Liangzao" has been promoted nationwide, and many consumers understand it as a marketing tool for businesses. However, from a legal perspective, Mingchu Liangzao is a form of implementing the main responsibility of food safety for catering service providers, which corresponds to the legal obligations of information disclosure and process control.
Article 55 of the Food Safety Law stipulates that catering service providers shall formulate and implement requirements for raw material control, cleaning and disinfection of tableware and drinking utensils, and control of processing and production processes. The revised "Food Safety Operation Standards for Catering Services" in 2018 provide detailed regulations on personal hygiene, specialized operations, and waste disposal during the processing and manufacturing process. For example, regulations explicitly require that activities that may contaminate food must not be carried out in food processing areas, and employees must not smoke, eat, or engage in other behaviors that may contaminate food in food processing areas.
The promotion of Mingchu Liangzao is essentially putting the originally "hidden" kitchen operations under the supervision of consumers and regulatory authorities. Once violations are recorded on live streaming footage, their evidential value far exceeds that of traditional complaints and reports. According to the Regulations on Administrative Penalty Procedures for Market Supervision and Administration, electronic data and audio-visual materials are classified as legal evidence. The live streaming footage intercepted by consumers or regulatory authorities can be directly used as a basis for determining illegal facts after verification.
The inspiration for catering enterprises is very clear: bright kitchens and stoves are not just about installing cameras, but also forcing enterprises to truly implement daily operating standards. Otherwise, live streaming footage will become a "fixed evidence" for administrative penalties and civil claims.
3、 What can consumers claim? Application and boundary of punitive damages
For customers who have made purchases at the involved stores, the most concerning question is' Can I claim compensation? '.
Article 148, Paragraph 2 of the Food Safety Law stipulates that if a consumer produces food that does not meet food safety standards or knowingly sells food that does not meet food safety standards, in addition to demanding compensation for losses, they may also demand compensation from the producer or operator for ten times the price or three times the loss; If the increase in compensation amount is less than one thousand yuan, it shall be one thousand yuan. This is commonly known as the "punitive damages" clause.
However, it should be pointed out that the application of punitive damages has strict conditions. Firstly, it is necessary to prove that the food itself does not meet food safety standards. If the chef's behavior of spitting mouthwash does indeed cause food contamination, resulting in food not meeting safety standards, consumers can claim punitive damages. But if live streaming footage alone cannot prove that a specific batch of food has been contaminated, the difficulty for consumers to claim ten times compensation will significantly increase.
In judicial practice, the court tends to be cautious in determining punitive damages. The relevant judicial interpretations and typical cases of the Supreme People's Court indicate that consumers need to preliminarily prove that there are safety issues with food, rather than simply inferring that the food is unqualified based on hygiene defects in the business premises. Therefore, for such incidents, the more feasible path for consumers to protect their rights is to file complaints and reports with market regulatory authorities, and have administrative agencies investigate and collect evidence; If the administrative agency determines that it is illegal and imposes penalties, consumers can then claim civil compensation based on this, and the evidence chain will be more complete.
4、 How can catering enterprises maintain compliance bottom line? Several practical suggestions from lawyers
This incident has sounded the alarm for all catering operators. From the perspective of legal practice, we suggest that catering enterprises improve compliance management from the following four aspects:
**Firstly, institutional implementation rather than paper-based compliance. **Many catering enterprises have food safety management systems, but they are merely formalities. It is recommended that companies develop a list of actionable kitchen behavior norms, clearly prohibiting behaviors such as spitting, rinsing mouth, smoking, eating, etc., and include them in employee onboarding training and daily assessments.
**Secondly, the combination of technical defense and human defense. **The camera of Mingchu should not only be used for "display", but also serve internal management. It is recommended that companies arrange dedicated personnel to regularly review monitoring, promptly correct any violations found, and keep inspection records. These records can serve as evidence that the enterprise has fulfilled its management obligations in response to administrative inspections or lawsuits.
**Thirdly, employee behavior is linked to employment management. **In the labor contract or rules and regulations, it is clearly stated that a serious violation of food safety operating standards is a serious disciplinary offense, and the enterprise may terminate the labor contract in accordance with the law. This can not only strengthen employees' sense of responsibility, but also provide legal basis for the company to handle disputes.
**Fourthly, crisis response must be legal and compliant. **After the incident occurs, enterprises should cooperate with regulatory authorities to investigate and take the initiative to rectify, rather than rushing to "cut" or shirk responsibility. According to Article 32 of the Administrative Penalty Law, if a party voluntarily eliminates or mitigates the harmful consequences of an illegal act, they shall be given a lighter or mitigated administrative penalty. Actively rectifying is not only a public relations strategy, but also a legal mitigating circumstance.
Food safety is no small matter. For consumers, when encountering similar problems, retaining their consumption vouchers, taking screenshots and recording screens, and promptly complaining to 12315 are the most effective starting points for safeguarding their rights. For catering enterprises, every detail of the kitchen may be magnified by the camera, and compliant operation is no longer a "bonus point", but a bottom line for survival. Guangdong Zhiming Law Firm has long focused on the field of food safety and compliance in the catering industry. It can provide full process legal services for catering enterprises, including system construction, employee management, administrative response, and dispute resolution. It can also provide professional guidance for consumers' rights protection.
