Is Circular 37 against the law?

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Enterprises are afraid of extra cost, troubles when performing formaldehyde examination. (Photo: Tran Viet).

Illegal?

Circular 37 of the Ministry of Industry and Trade on testing the amount of formaldehyde and aromatic amines transformed from azo dyes (called formaldehyde test) in textile products was launched with the aim of handling the inadequacies which had existed for a long time (since Circular 32 was introduced in 2009). However, after only 6 months implementation, Circular 37 has received backlash from the business community because this Circular has made so much trouble and extra cost for enterprises.

Most recently, the information which was provided by a research group of the Central Institute for Economic Management (CIEM) was surprising. As Mrs. Nguyen Minh Thao (CIEM) said, the issuance of Circular 37 of the Ministry of Industry and Trade to replace Circular 32, which took effect from December 15, 2015 was against the Law on Product and Goods Quality. This is what her team has demonstrated in the process of reviewing the legal documents.

Specifically, according to Clause 1, Article 5, Law on Product and Goods Quality: "The quality of products and goods are managed on the basis of announced applicable standards and technical regulations respectively. Based on potentially unsafe products and goods, they are managed as follows: Products and goods in Group 1 are on the basis of quality standards announced by the producers; products and goods in Group 2 are managed in quality on the basis of the technical regulations by the State management agencies which have the authority to issue and standards of the producers to apply".

Regarding this provision, Mrs. Nguyen Minh Thao said: “Ministry of Industry and Trade only issued the regulations on the inspection of formaldehyde content in textile products if the textile products are under the management responsibility of the Ministry of Industry and Trade in Group 2. However, according to Circular No. 08/2012 / TT-BCT on April 9, 2012 of the Ministry of Industry and Trade issuing the list of products and goods potentially unsafe under the management responsibility of the Ministry of Industry and Trade, the textile products are not in this catalogue. Thus, the issuance of Circular 37 of the Ministry of Trade is against the Law on Product and Goods quality. The Ministry of Industry and Trade requiring companies to implement the inspection of the amount of formaldehyde for textile products is illegal. In the past 7 years, this provision has caused huge cost for enterprises’ time and expenses. Therefore, I propose the Ministry of Industry and Trade eliminate illegal Circular 37”.

Need a common voice

As noted above, the quality inspection of products and goods is based on the Law on Products and Goods quality. Circular No. 08 issued the list of products and goods potentially unsafe under the management responsibility of the Ministry of Industry and Trade, but the textile products are not in this list. So it can be said that the promulgation of Circular 32 and 37 of the Industry and Trade Ministry has no legal origin.

The Vietnam Textile and Apparel Association said that Circular 37 did not reflect the spirit of Resolution 19 of recent years as "comprehensive reform of regulations on business environment, the specialized management for export and import goods in accordance with international practice, a substantial change to the inspection". Furthermore, procedures for specialized inspection have been causing a lot of time and cost for businesses, causing delay in importing goods, leading to slow production, negatively affecting the time of delivery, which makes enterprises be fined, incur much more cost and lower their competitiveness.

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Thus, over the past many years, the authorities – the Ministry of Industry and Trade and business community still have not found a common voice and consensus. While the Government is trying to remove difficulties and problems to facilitate enterprises, especially in the key sector such as textiles, leather and footwear, these two circulars severely have impeded the development of the business community.