CBP Modifies Withhold Release Order in Response to Smart Glove’s Successful Actions to Address Forced Labor Supply Chain Issues - U.S. Customs & Border Protection
Smart Glove’s Elimination of Forced Labor from Their Supply Chain Demonstrates CBP’s Enforcement Success
WASHINGTON – U.S. Customs and Border Protection (CBP) today modified the Withhold Release Order (WRO) against synthetic, disposable gloves produced in Malaysia by a group of companies jointly known as Smart Glove. This group includes Smart Glove Corporation Sdn Bhd, GX Corporation Sdn Bhd, GX3 Specialty Plant, Sigma Glove Industries, and Platinum Glove Industries Sdn Bhd. Effective immediately, CBP will allow Smart Glove shipments to enter U.S. commerce, provided the imports are otherwise in compliance with U.S. laws. Shipments of Smart Glove’s synthetic gloves received on or after April 26, 2023 will no longer be detained at U.S. ports of entry.
“The Department of Homeland Security’s relentless enforcement efforts to prevent goods produced with forced labor from entering the United States are changing companies’ behavior, resulting in the elimination of forced labor from supply chains,” said U.S. Secretary of Homeland Security Alejandro N. Mayorkas. “Today’s modification of the withhold release order against Smart Glove proves that our enforcement efforts are driving responsible corporate citizenship and significant changes in corporate behavior, and that we will recognize those changes when they are instituted. Our efforts are driven by the core principle that every worker around the world deserves to be treated with dignity and respect.”
This is the third modification that CBP has issued in 2023. Over the past three years, CBP’s forced labor enforcement efforts have resulted in the improvement of living and working conditions for tens of thousands of workers including the repayment of more than $50 million in withheld wages and recruitment fees trapping workers in debt bondage.
In response to the implementation of that WRO, Smart Glove has taken various measures to address the indicators of forced labor that prompted the WRO to ensure that it is not utilizing forced labor throughout its supply chain. Smart Glove’s remediation efforts included repayment of recruitment fees, improvements to living conditions, and implementation of new worker-centered policies and procedures. CBP has determined the conditions of forced labor identified in the WRO have been remediated. Accordingly, the WRO has been modified and shipments of Smart Glove’s synthetic gloves received on or after April 26, 2023 will no longer be detained at U.S. ports of entry.
“We are witnessing a shift in behavior from importers and businesses as they identify and eliminate forced labor from their supply chains so that they can do business in the U.S., which ensures our economic security and enhances protections against forced labor,” said CBP Acting Commissioner Troy Miller. “CBP is proud to be a part of this positive change that directly impacts so many lives abroad and ensures fair competition for law-abiding American entrepreneurs and companies.”
The announcement of this modification demonstrates CBP’s commitment to working with foreign manufacturers and international supply chain stakeholders to achieve positive outcomes for workers trapped by forced labor across the globe.
19 U.S.C. § 1307 prohibits the importation into the U.S. of “[a]ll goods, wares, articles, and merchandise mined, produced, or manufactured wholly or in part in any foreign country by convict labor or/and forced labor, or/and indentured labor, including forced or indentured child labor[.]” When CBP has information reasonably indicating that imported goods are made with forced labor, the agency will order personnel at U.S. ports of entry to detain shipments of those goods. Such shipments will be excluded and subject to seizure and forfeiture if the importer fails to demonstrate proof of admissibility, in accordance with 19 CFR §12.43 or export the shipment.
CBP has established a process through which interested parties may request the modification or revocation of a WRO or Finding. The required evidence and timeline for modification or revocation may vary depending upon the specific circumstances of each individual case. CBP does not modify a WRO or Finding until the agency has evidence demonstrating that the subject merchandise is no longer produced, manufactured, or mined using forced labor.
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Federal Register Notices:
• Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Invitation for Comment on the Agreement Suspending the Antidumping Duty Investigation of Certain Cut-to-Length Carbon Steel Plate From the Russian Federation
• Circular Welded Carbon Steel Pipes and Tubes From Turkey: Final Results of the Expedited Sunset Review of the Countervailing Duty Order
• Dioctyl Terephthalate From the Republic of Korea: Rescission of Antidumping Administrative Review; 2021-2022
• Stainless Steel Sheet and Strip From the People's Republic of China: Final Scope Ruling and Final Affirmative Determination of Circumvention for Exports From the Socialist Republic of Vietnam; Correction
• Investigations; Determinations, Modifications, and Rulings, etc.: Certain Active Matrix Organic Light-Emitting Diode Display Panels and Modules for Mobile Devices, and Components Thereof; Notice of a Commission Determination Not To Review an Initial Determination Granting Complainant Samsung Display Co., Ltd.'s Motion for Leave To Amend the Complaint and Notice of Investigation
• Investigations; Determinations, Modifications, and Rulings, etc.: Certain Active Matrix Organic Light-Emitting Diode Display Panels and Modules for Mobile Devices, and Components Thereof; Notice of a Commission Determination Not To Review an Initial Determination Granting Complainant Samsung Display Co., Ltd.'s Motion for Leave To Amend the Complaint and Notice of Investigation
• Investigations; Determinations, Modifications, and Rulings, etc.: Certain Oil-Vaping Cartridges, Components Thereof, and Products Containing the Same Commission Determination To Review in Part a Final Initial Determination Finding No Violation of Section 337 as to the Asserted Patent Claims; Request for Written Submissions on Issues Under Review and on Remedy, the Public Interest, and Bonding as to the Asserted Trademark
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USTR Releases 2023 Special 301 Report on Intellectual Property Protection and Enforcement - U.S. Trade Representative
WASHINGTON – The Office of the United States Trade Representative (USTR) today released its 2023 Special 301 Report on the adequacy and effectiveness of U.S. trading partners’ protection and enforcement of intellectual property (IP) rights.
“Innovation and creativity are at the heart of American competitiveness. That is why the Biden-Harris Administration’s new story on trade includes lifting up the 60 million jobs and workers in our IP-intensive industries through robust IP protection and enforcement in foreign countries,” said Ambassador Tai. “Our Administration will continue to engage with the trading partners identified in this year’s Report to empower our inventors, creators, and brands, and to demonstrate that trade can deliver tangible results across the American economy.”
This annual report details USTR’s findings of more than 100 trading partners after significant research and enhanced engagement with stakeholders. Key elements of the 2023 Special 301 Report include:
USTR added Belarus to the Watch List, in response to Belarus passing a law that legalized unlicensed use of certain copyrighted works if the right holder is from a foreign state “committing unfriendly actions,” including sanctioning Belarus for their role in Russia’s unprovoked invasion of Ukraine. Furthermore, Belarus can keep royalties from this unlicensed usage and shift them to Belarus’s general budget, meaning that the Lukashenka regime would directly financially benefit from this unauthorized usage.
USTR added Bulgaria to the Watch List because it did not sufficiently address deficiencies in its investigation and prosecution of online piracy cases, such as by allowing criminal investigations, expert examinations, and prosecutions to proceed with just a subset of seized infringing works. USTR will again conduct an Out-of-Cycle Review of Bulgaria in 2023 to assess whether Bulgaria makes material progress in this area.
The Special 301 review of Ukraine continues to be suspended due to Russia’s premeditated and unprovoked further invasion of Ukraine in February 2022.
As part of the Biden Administration’s comprehensive effort to combat the COVID-19 pandemic, the United States supported negotiations that resulted in the WTO issuing two Ministerial Decisions in June 2022. One was on the WTO Response to the COVID-19 Pandemic and Preparedness for Future Pandemics. The other was on the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). The United States supports continued discussions at the WTO on this issue, and USTR requested that the U.S. International Trade Commission conduct an investigation into COVID-19 diagnostics and therapeutics and provide information on market dynamics to help inform the discussion around supply and demand, price points, the relationship between testing and treating, and production and access. That report is due October 17, 2023.
There remain many serious concerns regarding IP protection and enforcement in China. In 2022, China continued implementation of amendments to the Patent Law, Copyright Law, and Criminal Law, as well as previous issued measures, but the pace of reforms aimed at addressing IP issues slowed. While right holders have welcomed some positive developments, they raise concerns about the adequacy and effective implementation of these measures, as well as about long-standing issues like technology transfer, trade secrets, bad faith trademarks, counterfeiting, online piracy, and geographical indications. Also, statements by Chinese officials that tie IP rights to Chinese market dominance still raise strong concerns. The United States continues to monitor closely China’s progress in implementing its commitments under the United States-China Economic and Trade Agreement (Phase One Agreement).
Several trading partners continued to advance IP protection and enforcement by enacting major legal reforms. For example, Thailand’s amendments to the Copyright Act entered into force in August 2022. Vietnam’s amendments to the IP Code entered into force in January 2023. Nigeria adopted the Copyright Act, 2022 in March 2023.
Some trading partners also joined major international IP treaties. Examples include Thailand and Tunisia acceding to the World Intellectual Property Organization (WIPO) Copyright Treaty (WCT). Tunisia also acceded to the WIPO Performances and Phonograms Treaty (WPPT), and Chile acceded to the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (the Madrid Protocol).
Concerns with the European Union’s aggressive promotion of its exclusionary geographical indications (GI) policies persist. The United States continues its intensive engagement in promoting and protecting access to foreign markets for U.S. exporters of products that are identified by common names or otherwise marketed under previously registered trademarks. The United States remains concerned about the proposed expansion of the EU GI system beyond agricultural products and foodstuffs to encompass non-agricultural products, including apparel, ceramics, glass, handicrafts, manufactured goods, minerals, salts, stones, and textiles, as well as the transfer of much of the GI application review process to EU Member States and the reduction of time periods for opposing registration of a GI that is part of the EU’s Common Agricultural Policy that entered into force on January 1, 2023.
The Report continues to highlight ongoing concerns related to online piracy and broadcast piracy. Examples include concerns related to stream-ripping, illicit streaming devices and related piracy apps, cable providers distributing pirated content, and illicit Internet Protocol television (IPTV) services. Stakeholders from both unions and companies in the creative sectors have underscored the importance of copyright protection and enforcement to their livelihoods and businesses.
USTR also continues to press trading partners to address concerns on IP protection and enforcement, including through bilateral engagement under Trade and Investment Frameworks (TIFAs) and through other mechanisms. Examples in 2022 and early 2023 include engagements with Algeria, Argentina, Bangladesh, Central Asia, Chile, China, Egypt, the European Union, Kenya, India, Indonesia, Mexico, Pakistan, the Philippines, Paraguay, Saudi Arabia, Taiwan, Thailand, and Trinidad and Tobago.
USTR is expanding and enhancing engagement with diverse and inclusive groups of stakeholders to consider their perspectives on IP issues. For example, the United States organized workshops with stakeholders on the margins of the Asia-Pacific Economic Cooperation (APEC) meetings in 2023. A roundtable of independent creators, producers, and union workers provided diverse perspectives on the importance of copyright protection and enforcement for promoting inclusive growth in the creative industries. At a workshop on geographical indications, producers that are small or medium-sized enterprises and other stakeholders spoke about the economic benefits of preserving the use of common names and the problems they encounter when common names are not preserved.
BACKGROUND
The “Special 301” Report is an annual review of the global state of IP protection and enforcement. USTR conducts this review pursuant to Section 182 of the Trade Act of 1974, as amended by the Omnibus Trade and Competitiveness Act of 1988 and the Uruguay Round Agreements Act.
USTR reviewed more than 100 trading partners for this year’s Special 301 Report, and placed 29 of them on the Priority Watch List or Watch List. The Special 301 review of Ukraine has been suspended due to Russia’s premeditated and unprovoked further invasion of Ukraine in February 2022.
In this year’s Report, trading partners on the Priority Watch List present the most significant concerns this year regarding insufficient IP protection or enforcement or actions that otherwise limited market access for persons relying on intellectual property protection. Seven countries are on the Priority Watch List: Argentina, Chile, China, India, Indonesia, Russia, and Venezuela.
These countries will be the subject of particularly intense bilateral engagement during the coming year.
Twenty-two trading partners are on the Watch List, and merit bilateral attention to address underlying IP problems: Algeria, Barbados, Belarus, Bolivia, Brazil, Bulgaria, Canada, Colombia, Dominican Republic, Ecuador, Egypt, Guatemala, Mexico, Pakistan, Paraguay, Peru, Thailand, Trinidad & Tobago, Turkey, Turkmenistan, Uzbekistan, and Vietnam.
In addition, Out-of-Cycle Reviews provide an opportunity to address and remedy such issues through heightened engagement and cooperation with trading partners and other stakeholders. USTR announced an Out-of-Cycle Review of Bulgaria.
PUBLIC ENGAGEMENT
USTR continued its enhanced approach to public engagement activities in this year’s Special 301 process. USTR requested written submissions from the public through a notice published in the Federal Register on December 15, 2022 (Federal Register notice). In addition, due to COVID 19, USTR fostered public participation via written submissions rather than an in-person hearing with the interagency Special 301 Subcommittee of the Trade Policy Staff Committee (TPSC) sending written questions about issues relevant to the review to those that submitted written comments, including to representatives of foreign governments, industry, and non-governmental organizations. USTR posted the written questions and the written responses online at www.regulations.gov, docket number USTR-2022-0016.
The Federal Register notice drew submissions from 71 non-government stakeholders and 17 foreign governments. The submissions filed in response to the Federal Register notice are available to the public online at www.regulations.gov, docket number USTR-2022-0016.
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Louisville CBP & Food and Drug Administration Team Up to Stop Fraudulent Botox Shipments Arriving in the U.S. - U.S. Customs & Border Protection
LOUISVILLE — U.S. Customs and Border Protection (CBP) officers at the Louisville Port of Entry with the help of the Food and Drug Administration (FDA) intercepted more than 700 unapproved Botox and derma fillers during Operation No Tox from April 10-14.
CBP officers at the Port of Louisville focused on suspect shipments of Botox imported without FDA approved license, permit, authorization, or prescription attempting entry into the United States. Officers’ primary focus was on merchandise exported from South Korea, Malaysia, Indonesia, and Turkey described as lotions, creams, skin care and other related merchandise.
Operation No Tox was an enforcement effort between the Port of Louisville, FDA, and Homeland Security Investigation. This operation helped protect the public health and safety, corporations and support the agency’s overall goals. Additionally, prior to this operation, since October 1, CBP officers in Louisville have made over 100 Botox seizures.
During these five days CBP officers stopped 150 shipments that contained 744 unapproved, misbranded, counterfeit, fraudulent, and otherwise illicit Botox, and other brands of Botulinum Toxin Type A products, as well as derma fillers. Of the 150 parcels that were seized, 42 were determined to be destined to either a licensed individual or the owner of an establishment that employs licensed individuals engaged in medical outpatient procedures.
“Consumer health and safety are our key concerns when Customs and Border Protection officers enforce cosmetic imports,” said Thomas Mahn, Louisville Port Director. “Unapproved products that you inject could seriously hurt you. They are manufactured in unregulated and unsanitary facilities with ingredients that you cannot be sure are authentic.”
Botox, or botulinum toxin, is restricted by the U.S. Food and Drug Administration (FDA) and cannot be imported into the U.S. without proper documentation. The FDA provides guidance on how human drugs can be legitimately imported into the United States while meeting strict safety requirements.
“Medical products that ignore the safeguards of the legitimate supply chain can jeopardize consumers’ health,” said Special Agent in Charge George A. Scavdis, FDA Office of Criminal Investigations Metro Washington Field Office. “We commend our CBP partners for our joint work in protecting the public health.”
CBP's border security mission is led at ports of entry by CBP officers from the Office of Field Operations. CBP officers use a variety of techniques to intercept narcotics, unreported currency, weapons, prohibited agriculture, and other illicit products, and to assure that global tourism remains safe and strong.
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USITC Makes Determination in Five=Year (Sunset) Review Concerning Pure Magnesium from China - U.S. International Trade Commission
The U.S. International Trade Commission (USITC) today determined that revoking the existing antidumping duty order on pure magnesium from China would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time.
As a result of the Commission’s affirmative determination, the existing order on imports of this product from China will remain in place.
Chairman David S. Johanson and Commissioners Rhonda K. Schmidtlein, Jason E. Kearns, and Amy A. Karpel voted in the affirmative. Commissioner Randolph J. Stayin did not participate.
Today’s action comes under the five-year (sunset) review process required by the Uruguay Round Agreements Act. See the attached page for background on this five-year (sunset) review.
The Commission’s public report Pure Magnesium from China (Inv. No. 731-TA-696 (Fifth Review), USITC Publication 5420, May 2023) will contain the views of the Commission and information developed during the review.
The report will be available by June 12, 2023; when available, it may be accessed on the USITC website at: https://www.usitc.gov/commission_publications_library.
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BACKGROUND
The Uruguay Round Agreements Act requires the Department of Commerce to revoke an antidumping or countervailing duty order, or terminate a suspension agreement, after five years unless the Department of Commerce and the USITC determine that revoking the order or terminating the suspension agreement would be likely to lead to continuation or recurrence of dumping or subsidies (Commerce) and of material injury (USITC) within a reasonably foreseeable time.
The Commission’s institution notice in five-year reviews requests that interested parties file responses with the Commission concerning the likely effects of revoking the order under review as well as other information. Generally within 95 days from institution, the Commission will determine whether the responses it has received reflect an adequate or inadequate level of interest in a full review. If responses to the USITC’s notice of institution are adequate, or if other circumstances warrant a full review, the Commission conducts a full review, which includes a public hearing and issuance of questionnaires.
The Commission generally does not hold a hearing or conduct further investigative activities in expedited reviews. Commissioners base their injury determination in expedited reviews on the facts available, including the Commission’s prior injury and review determinations, responses received to its notice of institution, data collected by staff in connection with the review, and information provided by the Department of Commerce.
The five-year (sunset) review concerning Pure Magnesium from China was instituted on March 1, 2022.
On June 6, 2022, the Commission voted to conduct a full review. Chairman David S. Johanson and Commissioners Rhonda K. Schmidtlein, Jason E. Kearns, and Amy A. Karpel concluded that the domestic interested party group response was adequate and the respondent interested party group response was inadequate. Chairman Johanson and Commissioners Kearns and Karpel voted for a full review. Commissioner Schmidtlein voted for an expedited review. Commissioner Stayin did not participate.
A record of the Commission’s vote to conduct a full review is available from the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436. Requests may be made by telephone by calling 202-205-1802.
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FTC Sends 37 New Cease and Desist Letters Regarding Agency’s Eyeglass Rule - Federal Trade Commission
Eyeglass prescribers must provide patients with prescriptions after an exam; cannot charge a fee or require eyeglass purchase for prescription release to consumers
Federal Trade Commission staff sent 37 new cease and desist letters to eyeglass prescribers, including optometrists and ophthalmologists, warning them of potential violations of the agency’s Ophthalmic Practice Rules, known as the Eyeglass Rule, which ensures consumers the right to comparison shop for prescription eyeglasses.
The Eyeglass Rule requires prescribers to provide patients with a copy of their eyeglass prescription immediately after an eye exam that includes a refraction, even if the patient does not request it. Under the rule, prescribers also cannot require that patients buy eyeglasses as a condition of providing them with a copy of their prescription, place a liability waiver on the prescription, require patients to sign a waiver, or require patients to pay an additional fee in exchange for a copy of their prescription. Prescribers further cannot refuse to perform an eye exam unless the patient buys eyeglasses, contact lenses, or other ophthalmic goods from them.
The letters, sent as a result of reported violations, remind the prescribers that they are required to provide patients with a copy of their eyeglass prescription immediately after an eye exam, even if the patient does not request it. The letters also warn the prescribers that violations of the Eyeglass Rule may result in legal action, including civil penalties of up to $50,120 per violation.
Finally, the letters require the recipients to contact the staff within five days of receipt describing the specific action they plan to take to address the reported violations.
Along with the letters, staff provided prescribers with links to its business guidance publication, Complying with the Eyeglass Rule. The FTC has recently updated information to help consumers understand their rights under federal law. See: Buying Prescription Glasses or Contact Lenses: Your Rights.
The primary staffer responsible for the cease and desist letters announced today is Sarah Botha in the FTC’s Bureau of Consumer Protection.