Recently, the Beijing Municipal Health Commission announced the “Beijing Traditional Chinese Medicine Regulations (Draft for Comment)” (hereinafter referred to as the “Regulations”) to openly solicit opinions from the public.
After careful discussion and research, the China Biodiversity Conservation and Green Development Foundation (CBCGDF) Legal Work Committee proposed five amendments to the Regulations, and it has been submitted to the Beijing Municipal Health Commission via email.
Suggestions for modification are as follows.
I. “Maintain Ecological Safety” should be clearly written into the purpose of the regulations.
The development of Chinese medicine should not only focus on human health, but also consider the important ecological impacts in the process of Chinese medicine treatment and Chinese herbal medicine cultivation. However, the relevant content is not reflected in the legislative purpose of the Regulations.
It is proposed to amend Article 1 of the Regulations to read: “In order to inherit and promote traditional Chinese medicine, guarantee and promote the development of Chinese medicine, maintain ecological safety, and protect people’s health, these Regulations are formulated in accordance with the “Chinese Medicine Law of the People’s Republic of China” and related laws and regulations, combined with the actual situation in Beijing.”
II. Make regulations on Chinese medicinal materials of rare and endangered species.
At present, the rate of species declines and extinction on the earth is accelerating, and the loss of biodiversity is intensifying. Therefore, there is an urgent need to increase the protection of rare and endangered wild species, strictly control their use as Chinese medicinal materials, and accelerate the replacement of alternative materials for research and application of Chinese medicines. However, the “Regulations” do not make relevant provisions in this regard.
1. Add an article between Articles 4 and 5: “This city establishes a control system for the total amount of rare and endangered species of Chinese medicinal materials and promotes the research and application of alternatives to rare and endangered wild Chinese medicinal materials.”
2. Add an article between Article 50 and Article 51: “In violation of the provisions of Article 5 of the Regulations, exceeding the total amount control standard, and using rare and endangered wild species of Chinese medicinal materials, the competent Chinese medicine authority shall disqualify them for drug use.”
III. Add regulations on information disclosure.
Information disclosure is an important means to protect the public’s right to know and establish the credibility of government departments, and it is also an important way to urge the government and enterprise departments to do well in the service and management of Chinese medicine. Especially for the use of Chinese medicinal materials in rare and endangered wild species, the public deserves the right to know.
It is proposed to modify the fourth paragraph of Article 48 to read: “Strongly support the construction of TCM informatization, develop TCM Internet services, and improve the system of TCM information disclosure.”
IV. Increase administrative penalties for violations of the “Regulations”.
Generally speaking, the “Regulations” mostly adopt the method of fines in terms of administrative punishment, but only stipulate the upper limit of the amount of punishment, but not the lower limit of the amount. In this way, it is easy to lead to excessive discretionary power of administrative agencies in practice, and it is difficult to truly achieve the purpose of deterring and punishing offenders.
It is recommended that the “Regulations” make corresponding amendments to Articles 51, 52, and 53, and establish a lower limit for the amount of administrative penalties that cannot be too low according to the actual situation.
V. Amend the relevant regulations on the legal liability for slander and defaming Traditional Chinese Medicine.
Article 8 of China’s “Legislation Law” stipulates that laws can only be formulated for crimes and penalties. “Accounting for criminal responsibility” belongs to the category of crime and punishment, and only the Basic Law can regulate it. The Regulations do not have such legislative authority.
It is recommended that Article 54 of the “Regulations” delete the expression “If a crime is constituted, criminal responsibility shall be investigated according to law”.
Original Chinese article:
By / Maggie
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