US Authorities Increase Enforcement of Ban on Importing Goods Made with Forced Labor

An old trade law has emerged with new life. US authorities are increasingly enforcing the longstanding ban on the importation into the United States of goods made with forced labor. The new enforcement efforts and recent attention to the prohibition stem from the elimination in 2016 of a questionable exception to the law that existed for almost a century, combined with recent heightened attention to forced labor issues in China relating to the Uyghur population. (Notably, in just the last few days, face masks imported from China were found to be produced by Uyghur forced labor.) Our Advisory, published on June 17, 2020, provides background on the current law and the manner in which it has been enforced, and can serve as a helpful reference for companies importing goods that could be the product of forced labor.

Section 307 of the Tariff Act of 1930, 19 U.S.C. § 1307 (Section 1307), prohibits import into the United States of goods "mined, produced, or manufactured wholly or in part" by convict, forced, or indentured labor. While the language of the prohibition is extremely broad, there was very little US government enforcement from 1930 through early 2016, because the law included a "consumptive demand" exception that allowed goods to enter the United States, even if made with forced labor, if the domestically produced supply of the goods was insufficient to meet domestic demand for the goods.

In February 2016, Congress eliminated the consumptive demand exception, and the US government began to invoke Section 1307 more vigorously. From 1930 through February 2016, the US government had brought only 39 actions against imports due to forced labor concerns. Since February 2016, however, US Customs Border and Protection (CBP) has invoked the law 16 times. Three recent enforcement actions, known as detention orders, were issued against products from China's Xinjiang Uyghur Autonomous Region (XUAR). The significant international attention on forced labor in XUAR affecting the Uyghur population has led to several Congressional initiatives seeking additional enforcement tools. Three bills are now under consideration in Congress that address forced labor in XUAR. Notably, the Uyghur Forced Labor Prevention Act creates a rebuttable presumption that all goods produced in the XUAR should be subject to the import prohibition in Section 1307.

The recent press coverage, Congressional interest, and the increase in CBP enforcement suggest that the United States government may invoke Section 1307 much more frequently in the future to address a variety of forced labor issues around the world. Importers of goods into the United States should be aware of this issue and take actions to mitigate the risk that forced labor products may be present in their supply chains.

© Arnold & Porter Kaye Scholer LLP 2020 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.