Circular No. 26/2012/TT-BKHCN dated December 12, 2012 of the Ministry of Science and Technology on the state inspection of quality of goods in circulation

CIRCULAR

ON THE STATE INSPECTION OF QUALITY OF GOODS IN CIRCULATION

Pursuant to the Law on Product and goods quality dated November 21^st2007;

Pursuant to the Government s Decree No. 132/2008/NĐ-CP dated December 31^st2008, detailing the implementation of a number of articles of the Law on Product and goods quality;

Pursuant to the Government s Decree No. 89/2006/NĐ-CP datedAugust 30^th2006 on goods labels;

Pursuant tothe Government s Decree No. 28/2008/NĐ-CP dated March 14^th2008, defining the functions, tasks, powers and organizational structure of the Ministry of Science and Technology;

The Minister of Science and Technology issues a Circular onthe state inspection of quality of goods in circulation,

Chapter 1.

GENERAL PROVISIONS

Article 1. Scope of regulation and subjects of application

1. This Circular deals with the content, order, procedures, and organization of thestate inspection of quality of goods in circulation.

2. This Circular is applicable to the product quality inspection agencies and the goods belonging to the Ministries, local authorities, relevant organizations and individuals.

Article 2. Subjects of inspection

1. The goods circulating on the Vietnam’s market.

2. The specialized goods serving National defense and security are not the inspection subjects of this Circular.

Article 3. Interpretation of terms

In this Circular, the terms below are construed as follows:

1. Goods in circulation include the goods in transit, goods being displayed, promoted goods, and goods in storage during the trading of goods, except for the transit of goods of the organizations and individuals that import goods from the border checkpoint to warehouses.

2.Other terms in this Circular shall be construed in accordance with the interpretation in Article 3 of the Law on Product and goods quality.

Article 4.The basis for inspection

The basis for inspecting the goods quality is the applicable technical standards, the regulations on goods labels, and other regulations of law.

Article 5. The methods of goods quality inspection

The methods of inspecting the quality of goods in circulation include:

1.Inspection according to annual plans approved by competent State agencies. The planned inspection shall be carried out without giving prior notice to the traders.

a) The basis for formulating the annual plan for inspecting the quality of goods in circulation include:

- The targets and plans requested by specialized managing agencies;

- The results of the inspections of qualityof goods in circulation include:

- The information on the mass media about the suspicious quality of goods;

- The domestic, foreign, regional, and international warnings about goods quality.

b) The inspection plan must provide the following information:

- The subjects of inspection

- The area of inspection;

- The time of inspection (month);

- The cost of inspection;

- The organization.

2. The irregular inspection of goods quality.

The basis for deciding a irregular inspectionof quality of goods in circulation:

a) At the requests of by specialized managing agencies;

b) The complaints and denunciations against goods quality;

c) The information and warnings from domestic and foreign organizations and individuals about suspicious quality of goods that threaten the safety of human beings, animals, plants, property, and the environment;

d) The inspections of quality of goods in circulation find goods of suspicious quality

Article 6.Samples of goods for testing serving the goods quality inspection

1. The goods samples shall be purchased randomly from the market and tested at laboratories to serve the survey and supervision of the goods quality on the market. The purchase of samples for quality inspection does not have to be kept.

2. If the quality of goods is suspicious, the chief inspector shall decide to take samples.  The samples taken and tested at laboratories:

a) The samples shall be taken in accordance with the sampling methods in the corresponding technical regulations and standards. In the absence of the regulations on the sampling method, the samples shall be taken randomly and adequately for testing. The samples is divided into two units. One unit shall be tested, one unit shall be kept at the inspecting agency. The Inspectorate shall specify the period of keeping samples at the inspecting agency depending on  the goods and their expiration date. This period must not exceed 90 days. If there is not complaints after the period of keeping samples expires, the inspecting agency shall handle the kept samples as prescribed by current regulations.

b) The samples taken must be sealed (according to the form of seal 4b. TNPL – in the annex enclosed with this Circular), bear the signatures of the sample taker, the representative of the premises where the samples are taken, and enclosed with the sampling record ( according to the form4a. BBLMin the Annex enclosed with this Circular). If the representative of the premises refuses to sign the sampling record, the seal, or the samples, the Inspectorate shall specify that “the representative of the premises does not sign the sampling record and the seal”. The sampling record and the sample seal that bear the signatures of the sample taker and the chief inspector are still valid.

c) The samples shall be sent to an appointed laboratory for testing.

The test result given by the appointed laboratory is the legal basis for the inspecting agency to proceed the inspection.

3. The costs of goods sampling and testing are prescribed in Article 41 ofthe Law on Product and goods quality and the Joint Circular No.28/2010/TTLT-BTC-BKHCNdated March 03^rd2010 of the Ministry of Finance and the Ministry of Science and Technology, guiding the management and use of budget for the state inspection of goods quality.

Chapter 2.

THE CONTENT, ORDER, PROCEDURES, AND HANDLING OF VIOLATIONS

Article 7. Thecontent of goods quality inspection

1. Goods labels:

a) Inspect goods label shall in accordance with the laws on goods labels;

b) Inspect the display of the applicable standards and the conformity mark.

2. The quality:

a) Inspect the condition for goods preservation in accordance with the regulations or the content on the goods labels;

b) Inspect the content and display of warnings about the potential danger of goods;

c) Inspect the conformity of goods with the applicable technical standards, and enclosed documents.

If samples must be taken, the Inspectorate shall take samples in accordance with Clause 2 Article 6 of this Circular.

Article 8. The order and procedure for inspection

1. The Inspectorate shall carry out the inspection in the following order:

a) Present the inspection decision (made according to the form2a. QĐKTin the Annex enclosed with this Circular) before the inspection:  

b) Carry out the inspection in accordance with Article 7 of this Circular;

c) Make an inspection record (made according to the form 3a.BBKTin the Annex enclosed with this Circular). The inspection record must bear the signatures of the representatives of the inspected premises and the Inspectorate.If the representative of theinspectedpremises refuses to sign theinspectionrecord, the Inspectorate shallwrite“the representative of the premises does not sign the record”on the record;Theinspectionrecordthat bearsthe signatures of the chief inspectorand the members of the Inspectorate is still valid.

d) Report the inspection result to the inspecting agency and request the notification of the result of the test on the samples of goods of suspicious quality to the organizations and individuals having the inspected goods within 05 working days from the date on which the test result is received (according to the form5. TBKQTNKDin the Annex enclosed with this Circular);

dd)Handle the inspection resultin accordance with Article 9 of this Circular.

2.Thequality controller shall carry out the independent inspection in the following order:

a) Present the quality controller’s card before the inspection;

b) Carry out the inspection in accordance with Article 7 of this Circular;

c) Make an inspection record (made according to the form3b. BBKT - KSVCLin the Annex enclosed with this Circular).The inspection record must bear the signatures of the representatives of the inspected premises and thequality controller. If the representative of the inspected premises refuses to sign the record, thequality controllershall write “the representative of the premises does not sign the record”onthe record; The record that bears the signatures of thequality controller and the witnesses is stillvalid.

d) Handle the inspection result in accordance with Article 9 of this Circular.

Article 9. Handling violations

1. If the goods fails to satisfy the requirements of goods labels, announcement of applicable standards, certification of conformity, declaration of conformity, the measures for quality control according to the corresponding technical standards applicable to the goods, and the conditions related to the production, then:

a) The Inspectorate and quality controller shall request the seller to temporarily stop selling such goods, and request him or her to contact the producer or importer to take remedial measure within the period specified in the record.

Within 24 hours, the Inspectorate and quality controller must send reports to the inspecting agency for the inspecting agency to issue a notification of the suspension of goods circulation (according to the form 7. TBTDLTin the Annex enclosed with this Circular) and handle the situation intra vires; the period of suspending goods circulation in the announcement starts from the date on which the inspection record is signed;

b) The inspecting agency only issues the notification of the permission to circulate the goods (according to the form9. TBTTLTin the Annex enclosed with this Circular) when the seller has satisfied the requirements and sent written reports attached with evidences to the inspecting agency;

c) If the seller keeps committing the violations or refuses to comply with the requirements from the inspecting agency, within 07 working days from the date on which the conclusion about the continuation of the violations of the seller is made, the inspecting agency shall announce the name of the seller, the address of the shops, the names of goods, and the inconformity of goods on the local or central mass media depending on the seriousness and influence (according to the form10. TBKĐCLin the Annex enclosed with this Circular). Concurrently, the inspecting agency shall send the documents to the competent persons or competent State agencies and request them to handle the situation in accordance with law.

2. If the samples test result is not conformable with the applicable standards, conformity certification, or corresponding technical regulations, the Inspectorate and quality controller shall:

a) Send reports to the inspecting agency on the sample test result of for the inspecting agency to send the seller the notification of the unsatisfactory sample test result  (according to the form5. TBKQTNKĐin the Annex enclosed with this Circular) within 05 working days from the date on which the inspecting agency receives the test result sheet. Theinspecting agency shall send the documents to the competent persons or competent State agencies and request them to handle the situation in accordance with law;

b) Make a sealing record and seal the goods in stock at the inspected premises (made according to the form 8a.BBNP - ĐKTin the Annex enclosed with this Circular).If the representative of the inspected premises refuses to sign the record, the Inspectorateand quality controllershall write “the representative of the premises does not sign the record”onthe record.The record that bears the signatures of the chief inspector and thequality controlleris still valid.Within 24 hours, the Inspectorate and quality controller shall send reports to the inspecting agency for the inspecting agency to issue an notification of the suspension of the goods circulation;

c) Request the seller to provide information about the goods of the same kind such as the amount of goods in stock and sold, and contact the producer or importer to carry out rectifications and fulfill the obligations as prescribed by law.

Send reports to theinspecting agency shallfor the inspecting agency to send documents to competent persons or competent agencies and request them to handle the act of selling goods of which the quality is not in conformity with applicable standards or corresponding technical regulations if the goods are sold;

d) If the seller does not concur with the sample test result, he or she shall request, in writing, the inspecting agency to appoint another laboratory to test the samples within 02 working days from the date on which the notification of unsatisfactory sample test result is received. This test result is the basis for the inspecting agency to give the final conclusion. The cost of this sample test shall be incurred by the seller;

dd) The inspecting agency only issue the notification of the permission to circulate the goods(according to the form 9.TBTTLTin the Annex enclosed with this Circular) when the seller has satisfied the requirements and sent written reports attached with evidences to the inspecting agency.

3. If the regulations on labels are seriously violated (the labels are fake, the goods are expired; the information and warnings on the label is incorrect and cause danger), or there are concrete evidences that the goods are dangerous, or the sample test result does not satisfy the applicable standards, conformity certification, and corresponding technical regulations in a way that threaten the safety of humans, animals, plants, property, and the environment, or the seller fails to comply with the requirements in the notification of the suspension of goods circulation, then the inspecting agency shall send documents to the competent persons or competent State agencies and request them the handle the situation as prescribed by law, and announce the name of the seller, the addresses of the shops, the names of goods, and the inconformity of goods on the mass media.

4. If administrative violations are discovered during the inspection:

a) If the members of the Inspectorate do not include specialized inspectors or market controllers, the chief inspector shall make a record on the administrative violations (according to the form11. BBVPHCin the Annex enclosed with this Circular) and request the inspecting agency to send documents to the competent persons or competent State agencies and request them to handle the situation as prescribed by law;1

b) If the members of the Inspectorate include specialized inspectors or market controllers, the specialized inspectors or market controllers shall make the record on the administrative violations and handle the situation as prescribed by law.

5. After finding that the goods in circulation do not satisfy the applicable standards and corresponding technical regulations, the inspecting agency shall notify and request  the inspecting agency where the goods are produced or import carry out the product quality inspection at that production or import establishment in accordance with Article 5, Article 6 and Article 8 of the Government s Decree No. 132/2008/NĐ-CP dated December 31^st2008, detailing the implementation of a number of articles of the Law on Product and goods quality;

6. The documents being sent to the competent persons or the competent State agency for handing the violations include: the inspection decision, the inspection record, the notification of sample test result or the evidences that the products are not satisfactory, the administrative violation record, the sealing record, the notification of the suspension of goods circulation, the written request from the inspecting agency that the competent agency carries out the handling procedure as prescribed by law.

The persons and State agencies competent to handle violations shall consider and handle the violations in accordance with law, then notify the result to the inspecting agency for monitoring and summarizing.

Chapter 3.

REGULATIONS ON THE IMPLEMENTATION

Article 10. Responsibility of the inspecting agency for formulating the inspection plan

According to Clause 1 Article 5 of this Circular, the inspecting agency shall formulate the annual inspection plan as follows:

1. Before December 01^stevery year, the local inspecting agencies must finish formulating the plans for inspecting the quality of local goods in circulation for the next year.

2. Theplansfor inspecting the quality of local goods in circulation for the next yearmade by the local inspecting agencies must be reported to the central inspecting agencies in charge of the same disciplines, and sent to  the Services of Science and Technology after they are approved

Before December 31^stevery year, the Services of Science and Technology shall summarize and report the inspection plans of the local inspecting agencies to the People’s Committees of central-affiliated cities and provinces and the Ministry of Science and Technology (the Directorate for Standards, Metrology, and Quality).

3.BeforeJune 30^thevery year, thecentralinspecting agencies must finish formulating the plan for inspecting the quality of local goods in circulation for the next year.

The plans for inspecting the quality ofcentralgoods in circulation for the next year made by the local inspecting agencies must be reported to theMinistries in charge of the same disciplines, and the Ministry of Science and Technology (the Directorate for Standards, Metrology, and Quality)after they are approved.

4. Before July 15^thevery year, the Directorate for Standards, Metrology, and Quality shall formulate the inter-sectoral inspection plan and send it to the Ministry of Science and Technology for approval and execution in cooperation.

Article 11. Responsibility of inspecting agencies and relevant agencies for the cooperation in inspecting and handling violations of the laws on goods quality.

1. The inspecting agency shall handle the situation within 03 working days from the date on which the administrative violation record is made. The inspecting agency shall senddocuments to the competent persons or the competent State agency for handing the violationsas prescribed by law.

2.The persons and State agencies competent to handle violations shall consider and handle theadministrative violationsin accordance with law, then notify the result to the inspecting agency for monitoringthe rectification of the consequences after the administrative violations are penalized.

3. The Police, the Customs, the Market management agencies, specialized inspectorates, and other agencies shall make administrative violation records and handle the administrative violationswithinthe functionsandpowersassigned when they discover violations of laws on quality of goods in circulation while performing their duties.

Article 12. Reporting the inspection results

1. The inspecting agency shall summarize and report the inspection results every 6 months, every year, on demand, or after carrying out irregular inspections. The report content (according to the form6. BBCTKTin the Annex enclosed with this Circular):

a) The local inspecting agencies shall summarize and report the result of the inspection of quality of goods in circulation under their charge to the managing agencies and the Services of Science and Technology, for summarizing and sending reports to the People’s Committees of central-affiliated cities and provinces and the Ministry of Science and Technology (the Directorate for Standards, Metrology, and Quality)

a) The central inspecting agencies shall summarize and report the result of the inspection of quality of goods in circulation under their charge to the managing Ministries and the Ministry of Science and Technology (the Directorate for Standards, Metrology, and Quality).

2. Based on the reports from the localities, Ministries and agencies, the Ministry of Science and Technology shall summarize and send reports to the Prime Minister.

Article 13. Effects

This Circular takes effect on January 27^th2013 and supersedes the Circular No. 16/2009/TT-BKHCNdated June 02^nd2009 of the Minister of Science and Technology, guiding the state inspection of quality of goods in circulation.

Article 14. Effects

1. The Ministries, ministerial-level agencies, Governmental agencies, People’s Committees of central-affiliated cities and provinces, inspecting agencies, organizations, individuals, and relevant agencies are responsible for the implementation of this Circular.

2.the Directorate for Standards, Metrology, and Qualityshall guide and inspect the implementation of this Circular.

3. Inspecting agenciesare recommended to send feedbacks on the difficulties arising during the course of implementation to the Directorate for Standards, Metrology, and Quality forsending reports to the Ministry of Science and Technology for consideration and settlement./.