Memorandum of Understanding between Food and Drug Administration Department of Health and Human Services of the United States of America and Certification and Accreditation Administration of the People’s Republic of China Regarding Registration of U.S. Food Manufacturers Exporting to China

PREAMBLE
The Participants in this Memorandum of Understanding (MOU), the Food and Drug Administration (FDA), Department of Health and Human Services (HHS) of the United States of America, and the Certification and Accreditation Administration of the People’s Republic of China (CNCA), hereinafter referred to as the "Participants,"

Recognizing that the Food Safety Law of the People’s Republic of China and Decree 145 of the General Administration of Quality Supervision, Inspection and Quarantine of the People’s Republic of China (AQSIQ) require overseas manufacturers of certain food products offered for entry into China to be under the effective control and supervision of foreign competent authorities;

Recognizing that under Decree 145 overseas manufacturers of certain food products offered for entry into China are to be certified by the foreign competent authority exercising control and supervision over such manufacturers to be in compliance with the relevant laws and regulations of China, with respect to the food product categories identified in AQSIQ-related notices;

Recognizing that FDA is charged with the enforcement of the Federal Food, Drug, and Cosmetic Act (FD&C Act) and, pursuant to the FD&C Act, is charged with protecting public health by ensuring that foods are safe, wholesome, sanitary, and properly labeled,

Recognizing that U.S. based food manufacturers of certain food products offered for entry into China must be certified to be in compliance with the laws and regulations of China for food product categories identified in AQSIQ-related notices, and such certification is available only from third parties; and

Recognizing that the differences between the U.S. and Chinese regulatory systems as they apply to food manufacturers necessitate clarification of the registration processes in order for U.S. food manufacturers to be able to comply with AQSIQ Decree 145;

Have reached the following understandings:

I. PURPOSE

The mutual goals of FDA and CNCA, in signing this MOU, are to:

1. Establish a registration process that provides assurances to CNCA that U.S. food manufacturers subject to AQSIQ Decree 145, and their food products subject to AQSIQ Decree 145 that the manufacturers offer for entry into China, are in compliance with the relevant standards, laws and regulations of China, as specified in AQSIQ Decree 145;
2. Outline roles and responsibilities of each participant within this process so that each may operate according to the laws and regulations of their respective country;
3. Clarify that the third party certification bodies acknowledged by Participants are to serve the purpose of auditing manufacturers who offer food products subject to AQSIQ Decree 145 for entry into China according to the relevant standards, laws, and regulations of China; 
4. Provide greater clarity and certainty for all those offering food products subject to AQSIQ Decree 145 for entry into China regarding applicable processes for ensuring that the manufacturing facility and product meet the relevant food safety requirements of China; and
5. Provide for the cooperative exchange of scientific and regulatory information, technical assistance, and research to ensure an effective registration process of food products subject to AQSIQ Decree 145 and exported from the United States and offered for entry into the People’s Republic of China.

II. AREAS OF COOPERATION AND TYPES OF ACTIVITIES

A. CNCA

CNCA intends to:

1. Provide a list of third-party certification bodies for each food product category under the scope of AQSIQ Decree 145 as updates to the Annexes to this Memorandum;
2. Confirm that the third-party certification bodies have relevant technical capacity and conditions to conduct China Hazard Analysis and Critical Control Point (HACCP) certification audits;
3. Update the list of third-party certification bodies within the appropriate Annex as needed or as requested by the United States;
4. Accept facility certification from one of the third-party certification bodies identified in Annexes to this document;
5. Allow third-party certification bodies to attest, as indicated in Annex 1, that the U.S. manufacturer and its food products offered for entry into China, subject to AQSIQ Decree 145, meet the relevant standards, laws and regulations of China;
6. Approve the manufacturers which meet the registration requirements according to AQSIQ Decree 145 and publish online an updated list of registered manufacturers after receipt of the list of manufacturers from FDA;
7. Stipulate that registered manufacturers shall accept at least one audit every two years by the third-party certification body listed in the appropriate Annex;
8. Conduct evaluations of the U.S. regulatory procedures for listing food manufacturers and the recommended registration process according to CNCA’s work plan, as needed;
9. Evaluate acknowledged third-party certification body’s audit activities and inspect U.S. food manufacturers that have been registered with CNCA; and
10. Request that all U.S. food manufacturers registered in China at the time this MOU is signed receive an audit against the standards, laws and regulations of China and obtain a certification from the third-party certification body listed in the appropriate Annex within two years from the date of signature of this MOU.

B. FDA

FDA intends to:

1. Acknowledge the list of third-party certification bodies for each food product subject to the AQSIQ Decree 145 which is provided by CNCA as updates to the Annexes to this Memorandum;
2. Issue a Competent Authority Statement to CNCA when a manufacturer and its food products that are subject to the AQSIQ Decree 145 are certified by a third-party certification body as being in compliance with the standards, laws and regulations of China according to relevant requirement specified in AQSIQ Decree 145 (for template refer to Annex 1);
3. Evaluate relevant manufacturers’ regulatory standing with FDA through a review of regulatory compliance, inspection history and any pending regulatory action;
4. Upon completion of the third-party certification body’s review, receive certification from the third-party body and, if certified by the third-party body to be in compliance with the standards, laws and regulations of China according to relevant requirements specified in AQSIQ Decree 145, and if found by FDA to be in good regulatory standing, include the manufacturer on FDA’s internal list of manufacturers and food products;
5. Every quarter, or as otherwise decided between the Participants, provide CNCA with a list of manufacturers that would facilitate registration by CNCA, including any changes to previous lists of manufacturers;
6. Provide an attestation, as indicated in Annex 1, along with the list of manufacturers and any changes to previous lists, that the manufacturer and its food products are in good regulatory standing and have received a confirmation from a third-party certification body that the manufacturer and its food products are in compliance with the standards, laws, and regulations of China according to the relevant requirements specified in the AQSIQ Decree 145;
7. Notify CNCA of changes FDA is making to its list of manufacturers or their products when FDA is made aware of manufacturers and their products not being in compliance with the laws and regulations of China; and
8. Issue a Competent Authority Statement to CNCA to confirm the list of registered manufacturers already registered with CNCA before this MOU is signed once those manufacturers have successfully received the attestation referenced in Annex 1 from acknowledged third-party certification bodies.

III. ADMINISTRATIVE PROCEDURES

The Participants intend that this MOU not provide for the sharing of any proprietary or confidential business information between Participants. 

The Participants intend to designate points of contact under this MOU. The Participants are expected to notify each other or the points of contact in writing.

The Participants intend that nothing in this MOU affect the acceptance of U.S. government-issued export health certificates by AQSIQ.

The Participants intend to resolve any dispute regarding the implementation or interpretation of this MOU through timely consultations.

All activities carried out pursuant to this MOU are to be conducted in accordance with the laws and regulations of the United States of America and the People’s Republic of China and are subject to the availability of personnel, resources, and available funds.  This MOU is not intended to create any binding obligations under international or domestic law.

IV. PERIOD OF UNDERSTANDING

The activities under this MOU may commence upon signature by both Participants and are expected to continue indefinitely until the MOU is modified or discontinued.  The Participants intend to evaluate the MOU every five (5) years.  The MOU may be modified by mutual written consent of the Participants and may be discontinued by either Participant upon 30 days’ written notice to the other.

Signed in duplicate in the English and Chinese languages, both texts being equally valid. 

Annex 1 – Attestations

By the Third-Party Certification Body upon transmittal of a facility and product certification:

"It is hereby certified, relating to the requirements of AQSIQ Decree 145, that the manufacturer and the identified food products exported to China meet the relevant standards, laws, and regulations of China."

By FDA, upon transmittal of the manufacturer list to CNCA:

"It is hereby certified, relating to the requirements of AQSIQ Decree 145, that the manufacturers on this list are subject to the jurisdiction of the Federal Food, Drug, and Cosmetic Act and relevant FDA regulations, that each manufacturer on the list has been found by FDA to be in good regulatory standing and during the most recent facility inspection to be in substantial compliance with all applicable FDA regulations, including current good manufacturing practice requirements, and that each manufacturer and identified food products, as applicable, have been certified by an acknowledged third-party certification body to meet the relevant standards, laws, and regulations of China."

Annex 2 – Acknowledged Third-Party Certification Bodies
for Dairy and Infant Formula Products

Annex 3 – Acknowledged Third-Party Certification Bodies for Seafood Products