United States: A Loophole In CBP's Forced Labor Statute Just Closed, And Every U.S. Importer Should Take Note

Lars-Erik Hijeim, Bernd Gjanzen, Christopher T. Timura

On March 29, 2016, following on the heels of the elimination of the consumptive demand exception, CBP issued two detention orders based on information obtained by CBP indicating that a Chinese company and its subsidiaries utilize convict labor in the production of certain commodities. The commodities barred from import by these orders are soda ash, calcium chloride, caustic soda, viscose/rayon fiber, potassium, potassium hydroxide and potassium nitrate. The expectation is that CBP will follow these orders with published findings.

On April 6, 2016, the International Labor Rights Forum's Cotton Campaign and Ruslan Myatiyev, a Turkmenistan national, filed a petition requesting that CBP bar the entry of certain specified cotton products into the United States that are allegedly being produced, wholly or in part, with cotton produced with forced labor in Turkmenistan. CBP has not, to date, acted on this petition and it is not clear if there is sufficient evidence in these referrals for investigation to allow CBP to issue detention orders that would withstand an importer's challenge—or judicial scrutiny.

Most recently, CBP created a trade enforcement task force that will focus on several areas, including shipments of items produced with forced or child labor. In its May 2, 2016, press release, CBP explains that the task force will "harness the agency's collective trade enforcement expertise as a focal point for coordination with other government agency partners, including the Department of Commerce and U.S. Immigration and Customs Enforcement's Homeland Security Investigations."... 

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