Forced Labor Import Ban Receives Bipartisan Support

Nov. 4, 2020
By: David G. Forgue

It has long been against United States law to import articles made with forced labor. Section 1307 of the Customs Laws, 19 U.S.C. 1307, makes it illegal to enter articles into the United States that were produced with forced labor and/or indentured labor under penal sanctions (i.e. prison labor). However, this provision had become less commonly used over the last 24 years, with no findings by Customs of forced labor from 1996 until October of 2020.

However, in Fiscal Year 2020 Customs has renewed its focus on imports allegedly made with forced labor. In 2019, there were Withhold Release Orders or findings issued against gold from the Democratic Republic of Congo, bone black from Brazil, tobacco products from Malawi, disposable gloves and palm oil products from Malaysia, and diamonds from Zimbabwe. However, the main area of enforcement has been China, with findings or Withhold Release Orders for seafood, products of human hair, products of stevia extracts, computer parts, garments, and articles of cotton in 2019 and 2020. These findings and orders have impacted companies across the United States.

While many commentators believe that the number of actions related to Chinese products is an additional front in the Trump Administration’s trade war with China, there is broad political support for Customs’ enforcement actions. In September 2020, Democratic Senators Sherrod Brown (OH) and Ron Wyden (OR) sent a letter to President Trump urging the Administration to take further effective action against forced labor in support of the Uyghurs in China. A group of Republican Senators sent a letter expressing a similar sentiment the next day. Because the current Withhold Release Orders are focused largely on businesses in northwest China and businesses alleged to utilize forced Uyghur labor, these letters are effectively endorsing the current Customs effort and seeking an expansion of that effort.

In light of the bipartisan support for enforcement of the forced labor statute, it seems likely that Customs will receive resources and support for its efforts regardless of the 2020 elections, and likely regardless of the current trade war with China. However, it is important to note that in many (if not most) cases, United States importers are not aware of the actual facilities in which goods they import are made and may not have clear visibility to the status and treatment of workers in those facilities. Therefore, at least some of the companies whose shipments have been detained by Withhold Release Orders were completely ignorant of the role they may have played in production using forced labor. Nevertheless, the importers bear the weight of enforcement in the United States. Moreover, because Customs may issue Withhold Release Order on the basis of information that reasonably but not conclusively indicates the presence of forced labor, importers may be placed in the difficult position of trying to prove the absence of forced labor in the supply chain. This will almost certainly require the cooperation of the supplier.

Because of the importance and visibility of this issue, importers should take steps to ensure compliance with the laws. This includes (at a minimum):

• Understanding the International Labor Organization’s indicators of forced labor;
• Understanding due diligence to identify forced labor, prison labor and child labor;
• Securing commitments from suppliers that they do not use forced labor, prison labor, or child labor;
• Including those commitments as conditions in purchase orders and contracts;
• Subjecting suppliers to on-site audits (there are several third parties that perform this service); and
• Taking immediate remedial action whenever the presence of forced labor is indicated.

If you have questions or concerns about forced labor in your supply chain contact any attorney at Barnes, Richardson & Colburn for assistance.