Legislative Council

LC Paper No. CB(2) 2711/98-99
(These minutes have been
seen by the Administration)

Ref : CB2/BC/18/98

Bills Committee on Chinese Medicine Bill

Minutes of meeting held on Wednesday, 7 April 1999 at 8:30 am in Conference Room A of the Legislative Council Building

Members Present:

Prof Hon NG Ching-fai (Chairman)
Hon HO Sai-chu, JP
Hon Cyd HO Sau-lan
Hon LEE Kai-ming, JP
Dr Hon LEONG Che-hung, JP
Dr Hon Philip WONG Yu-hong
Dr Hon TANG Siu-tong, JP

Members Absent:

Hon David CHU Yu-lin
Hon Michael HO Mun-ka
Dr Hon LUI Ming-wah, JP
Hon Mrs Selina CHOW LIANG Shuk-yee, JP
Hon Ronald ARCULLI, JP
Hon CHAN Yuen-han
Hon YEUNG Yiu-chung
Hon Ambrose LAU Hon-chuen, JP
Hon CHOY So-yuk
Hon LAW Chi-kwong, JP

Public Officers Attending:

Deputy Director of Health (2)

Miss Eliza YAU
Principal Assistant Secretary for Health and Welfare (Medical) 1

Miss Miranda NG
Senior Assistant Law Draftsman, Department of Justice

Dr LEUNG Ting-hung
Assistant Director of Health (Traditional Chinese Medicine)
Clerk in Attendance:
Ms Doris CHAN
Chief Assistant Secretary (2) 4
Staff in Attendance:
Mr Stephen LAM
Assistant Legal Adviser 4

Ms Joanne MAK
Senior Assistant Secretary (2) 4
I. Meeting with the Administration
(LC Paper Nos. CB(2)1637/98-99(01) and (02))

Experience of other countries in the regulation of traditional medicines

At the Chairman's invitation, Deputy Director of Health (2) (DD(H)2) briefed members on the salient points of the paper on "the regulatory systems for traditional medicine in some places outside Hong Kong". He advised that in the Mainland, a registration system for Chinese medicine practitioners would commence in mid 1999. However, information on the schedule of the implementation was not yet available. Apart from the Mainland, the Administration had also made reference to the regulatory systems for Chinese medicine practitioners and Chinese medicine in Taiwan, Singapore, Malaysia, Korea and the State of Victoria of Australia.

2. Mr HO Sai-chu asked for information about the practice of Chinese medicine in Korea and the regulation of Chinese medicine in Japan and Canada. The Chairman also requested to be provided with information on the regulatory systems adopted in the State of Victoria in Australia and the city of Vancouver in Canada. DD(H)2 agreed to seek the requested information and provide it to members when available.

(Post-meeting note : The Administration had subsequently provided a paper on the regulatory systems in the US, Canada and Japan which was issued to members under LC Paper No. CB(2)1778/98-99 (04).)

3. In response to members' enquiries, DD(H)2 pointed out that it had been agreed by the Preparatory Committee on Chinese Medicine that only registered Chinese medicine practitioners should be allowed to practise acupuncture in order to ensure that acupuncture was performed only by persons who had a full knowledge of Chinese medicine.

Restriction on the sale of Schedule 2 medicines

4. As requested by members, the Administration had compiled a paper listing those products containing Schedule 2 Chinese herbal medicines which were being sold in supermarkets. DD(H)2 pointed out that, with the passage of the Bill in the future, these products (mainly pre-packed soup ingredients) would be restricted to be sold in licensed Chinese medicine retail shops or in other retail outlets which had obtained a licence in respect of the scheduled Chinese herbal medicines. DD(H)2 explained that without such a restriction, it would create a loophole in the law in such a way that the scheduled Chinese herbal medicines could be sold in any retail outlets simply by packaging them as pre-packed soup ingredients. The Administration considered that as many other types of pre-packed soup ingredients not containing any scheduled Chinese medicines could still be sold in supermarkets, the impact on the businesses of supermarkets brought by this new restriction should be minimal.

5. DD(H)2 pointed out that the retail licence in respect of the scheduled Chinese herbal medicines would be easy to obtain and that the same licensing conditions as those applied to Chinese medicine shops might not be imposed on supermarkets when the latter applied for the retail licence. He advised that having regard to the mode of operation and facilities of supermarkets, the main requirements to be imposed would be mainly related to the keeping of record on the suppliers of the scheduled Chinese herbal medicines sold in the supermarkets. The purpose of these requirements was to facilitate the Administration to trace the suppliers of any problematic Chinese medicines sold.

6. However, Dr LEONG Che-hung considered that there would be double-standard in terms of the stringentness of the licensing requirements to be imposed on a Chinese medicine shop and on a supermarket. The Chairman suggested the Administration to consider separating supermarkets and Chinese medicine shops into two categories subject to different levels of stringentness of licensing requirements. However, DD(H)2 considered that this might create confusion to the sector as to which category individual retailers should belong.

7. Mr HO Sai-chu was also concerned about the impact on the businesses of supermarkets caused by the proposed restriction. DD(H)2 pointed out that after passage of the Bill, proprietary Chinese medicines would continue to be sold over the counter in supermarkets. The only new restriction to be imposed on supermarkets would be in connection with the sale of the pre-packed soup ingredients containing the scheduled Chinese herbal medicines. However, he assured members that the Administration would take into account the different mode of operation of supermarkets in stipulating the relevant licensing conditions. Assistant Director of Health (Traditional Chinese Medicine) AD(TCM) added that some supermarkets had registered as authorized sellers of poisons under the Pharmacy and Poisons Ordinance (Cap. 138) for the retail sale of poisons. Since they managed to satisfy the relevant requirements of registration, AD(TCM) believed that they would have no problems in meeting the requirements for application of the retail licence under discussion as the requirements in both cases would be similar.

8. Dr LEONG Che-hung noted that some dried sea products wholesale shops were also selling some of the Schedule 2 Chinese medicines and asked whether these shops would have to apply for the relevant retail licence. In response, DD(H)2 said that the answer was in the affirmative if these shops also engaged in the retail sale of the scheduled Chinese herbal medicines. However, he added that the licensing requirements would be mainly related to the labelling of the goods which would not be too complicated.

9. Mr HO Sai-chu expressed doubt as to whether or not it would be really so easy for retail shops like supermarkets and the dried sea products wholesale shops to apply for the retail licence in respect of the scheduled Chinese herbal medicines. He supported the Chairman's suggestion of grouping supermarkets and dried sea products wholesale shops under a separate category different from that for Chinese medicine shops. In response, DD(H)2 said that the Administration had all along maintained close contact with the sector and issued pamphlets to them explaining the basic requirements of applying for the retail licence in respect of the listed Chinese herbal medicines. He believed that it would not be difficult for them to apply for the licence. Nevertheless, DD(H)2 agreed that the suggestion could be further considered by the Chinese Medicine Council (CMC) when it was established.Adm

10. In response to Dr LEONG Che-hung's enquiries, DD(H)2 confirmed that shops (including supermarkets and dried sea products wholesale shops) after obtaining the retail licences in respect of the scheduled Chinese herbal medicines could sell both Schedules 1 and 2 medicines. In applying for such retail licences, these shops had to nominate a person to supervise the dispensing of Chinese herbal medicines in accordance with clause 114(2)(b)(i) of the Bill.

11. Miss Cyd HO noted that some market stalls in public housing estates also sold pre-packed soup ingredients some of which might also contain the scheduled Chinese medicines. She queried whether these markets stalls could meet the requirements and obtain the relevant retail licence. She took the view that obviously shops like supermarkets, dried sea products wholesale shops and the market stalls each had very different mode of operation and she supported the Chairman's suggestion of separating them into different categories subject to different levels of licensing conditions. Dr LEONG Che-hung added that these market stalls were different from supermarkets in that the sale of the pre-packed soup ingredients might make up a significant share of the their businesses. In response, AD(TCM) invited members to note that Schedule 2 actually contained only the essential items. Chinese medicines such as dried mushrooms and lotus seeds which were widely used as ingredients in common dishes and herbal soups had already been excluded from Schedule 2. He also referred to clauses 114 and 115(3) of the Bill and pointed out that provisions had been made to enable the Medicines Board to impose restrictions or conditions as it thought fit on the applicant in applying for the retail licence. He reiterated that the regulation on the sale of the scheduled Chinese herbal medicines was necessary as a way to lay the foundation for the future development of Chinese medicines.

12. Dr LEONG Che-hung requested the Administration to commit that the future CMC would consider making regulations for the purpose of dividing the retail outlets into different categories subject to different levels of licensing conditions to take into account their differences in their mode of operation and facilities. If not, he considered that the Health and Welfare Bureau should at least undertake that it would suggest CMC to consider this, and confirm that it would do so in the speech of the Secretary for Health and Welfare when the Second Reading of the Bill was resumed. In response, DD(H)2 undertook to convey the suggestion to CMC for consideration.

13. Dr LEONG Che-hung enquired how the Administration would publicize the relevant restrictions so that the retail sector would come to know the new regulations to be introduced on the sale of the scheduled Chinese medicines. In reply, DD(H)2 assured members that the Administration would inform the relevant groups of the sector of the restrictions to be introduced and explain to them thoroughly the new rules.

Clause 86 - Limited registration

14. In response to members' concerns expressed at previous meetings, DD(H)2 said that the Administration agreed to consider defining clearly the meaning of an "educational/scientific research institution" under the relevant subsidiary legislation.Adm

Clause 122 - Registration of Chinese proprietary medicines : Factors relevant to determination of application for registration

15. Regarding the request made by Mrs Selina CHOW at the last meeting to make provisions under the subsidiary legislation for defining proprietary Chinese medicines, DD(H)2 said that the Administration had decided not to do so. He explained that any guidelines related to the definition and evaluation of proprietary Chinese medicines would need to be revised from time to time due to technical problems and quoted the example of the Mainland where such guidelines had been frequently revised. He said that the Administration was not in favour of giving the definition in the subsidiary legislation in order to give more leeway to the CMC to decide on the matter. Moreover, he undertook that with passage of the Bill, guidelines would be issued in the future to provide information on matters related to the registration of proprietary Chinese medicines for the reference of the sector. In addition, Senior Assistant Law Draftsman (SALD) confirmed that provisions could be made in the subsidiary legislation stipulating that such guidelines would be issued at intervals.Adm

Regulation of Chinese herbal tea shops

16. DD(H)2 explained that Chinese herbal tea shops were at present subject to the licensing control by the two provisional municipal councils. In fact, many of these shops also sold products like fish balls, sweet soup and so on and thus they were also looked upon as food shops. The Administration took the view that the Chinese herbal tea sold at these shops, though might not be as efficacious as claimed to be, would not be harmful to the health of people who consumed it. Moreover, the Department of Health (DH) had been responsible for examining the formula based on which the Chinese herbal teas sold at these shops were prepared. It also conducted investigations into complaints against the products sold in these shops. Therefore, the Administration was satisfied with the present arrangements and did not propose to include regulation of these shops under the Bill. However, Dr LEONG Che-hung considered that it was because there were no specific legislative controls on Chinese medicines, and that had put the Chinese herbal tea shops under the regulation of the two municipal councils. He said that as there would be regulation of Chinese medicine, and, as the Administration had already pointed out that it was easy to apply for a retail licence in respect of the sale of the scheduled Chinese medicines, he was in favour of requiring Chinese herbal tea shops to apply for such a retail licence. In response, DD(H)2 said that the current arrangements had already served the purpose of ensuring the safety standard of these shops to the benefit of public health. Nevertheless, he agreed to re-consider Dr LEONG's suggestion.Adm

17. Miss Cyd HO noted that some Chinese medicine shops provided the service of decoction of Chinese herbal medicines for customers. She expressed concerns about the need to regulate the provision of this service. In response, DD(H)2 admitted that there was no regulation of this kind of service and agreed to seek legal advice.Adm

18. Dr TANG Siu-tong questioned what mechanism would be put in place for the purpose of distinguishing whether a particular Chinese medicine was genuine or not. In response, DD(H)2 pointed out that given the vast number of different kinds of Chinese medicines, it was impossible for the Administration to put in place such a mechanism immediately after the establishment of the relevant regulatory systems. Moreover, it had yet to develop a standardized method for carrying out the work. Nevertheless, he noted that some research work in this regard was being conducted by academic institutions. He agreed that there was a need to develop scientific methods for distinguishing genuineness of Chinese medicines which at present had to be judged based on the experience of the personnel in the relevant sector. He said that Hong Kong could further explore the way forward by borrowing experience from the Mainland through some co-operation.

Binding effect of the Bill

19. Miss Cyd HO noted that it was stated in paragraph 25 of the LegCo Brief that "the Bill does not bind the State by express provision" and enquired the reasons behind. In response, Principal Assistant Secretary for Health and Welfare (Medical) 1 (PAS(HW)(M)) said that by this proposal, the Bill would have no binding effect on the State, which included, among others, the Government of the Hong Kong Special Administrative Region and subordinate organs of the Central People's Government under the Interpretation and General Clauses Ordinance (Cap.1). She explained that the purpose of this proposal was to release the DH officers, who might not be registered Chinese medicine practitioners, from restrictions under the proposed legislation, so that they might give public health advice on Chinese medicines during conferences or in the media. She added that this was in line with the existing arrangement in respect of other health care professionals under statutory regulation. Miss Cyd HO further enquired whether Chinese medicine traders in the Mainland belonged to the category of "subordinate organs of the Central People's Government" and would therefore fall outside the control of this Bill. PAS(HW)(M) said that as far as she knew none of the importers and wholesalers of Chinese medicine in Hong Kong were "subordinate organs of the Central People's Government". Assistant Legal Adviser 4 (ALA4) advised that the meaning of "subordinate organs of the Central People's Government" under the definition of "State" given under clause 3 of Cap.1 had already excluded any organizations which, among other things, exercised commercial functions.

Acceptance of the medical certificates issued by Chinese medicine practitioners for sick leave and insurance purposes and their referral letters for X-ray service

20. In response to the Chairman's enquiry, DD(H)2 explained that no such provisions were included in the Bill but subject to further consultation with health care professional bodies and other parties concerned (such as the Labour Advisory Board and the insurance sector), they would be dealt with separately. Members discussed and agreed that these issues were outside the scope of this Bill.

II. Date of Next Meeting

21. Members agreed to schedule meetings on the following dates for further discussion -

  1. 26 April 1999 at 2:30 pm; and

  2. 5 May 1999 at 8:30 am.
22. The meeting ended at 10 am.

Legislative Council Secretariat
23 August 1999