On 14 September 2020, as part of its increasing focus on the issue of forced labour, US Customs and Border Protection (CBP) issued five Withhold Release Orders (WROs) on goods it alleges were produced with forced labour in violation of 19 USC § 1307. This statute, commonly referred to as the “Forced Labor Ban,” prohibits the importation of goods into the US that are mined, manufactured, or produced using any form of forced, convict, or indentured labour. The five WROs issued targeted certain hair, apparel, cotton and computer products from China.
Inclusive of these five WROs, CBP has now taken enforcement actions under the Forced Labor Ban 25 times since 2016, when it began increasing its enforcement of this law. CBP has also messaged its intentions to continue ramping up its enforcement activities in this area during the CBP Virtual Trade Week session it presented on 9 September 2020.
The US enforces the Forced Labor Ban primarily through two mechanisms: penalties and WROs, as further described below.
Prior to 2016, CBP did not issue many WROs or prioritise enforcement of the Forced Labor Ban, but recent developments show that the agency has changed course since the US Congress eliminated the “consumptive demand exception,” a feature of the law that had previously made the Forced Labor Ban difficult to enforce. Following this change to the law, CBP, in 2017, established a permanent Forced Labor Division with its own dedicated staff and budget, and the Forced Labor Division has since issued numerous WROs, as noted above. Further, in August 2020, CBP collected its first forced-labor civil penalty amounting to $575,000.
In addition to the change in the law, several other factors also seem to have contributed to increased enforcement in this area. Specifically, CBP is now required to annually report its forced labour enforcement statistics to Congress. Members of Congress are also asking CBP to issue more WROs. For example, several Congresspersons have demanded in open letters that CBP issue WROs on cocoa from the Ivory Coast and on all goods from Xinjiang, China. Further, the Congress has recently introduced several bills that, if passed, may result in CBP’s issuance of more forced labour penalties and WROs. Finally, this area has also attracted the attention of various human rights organisations that have demanded the enforcement of this law.
For these reasons, potentially impacted companies should consider reviewing and enhancing their import compliance programmes to adequately address growing forced labour risks.
Deloitte’s Global Trade Advisory specialists are part of a global network of professionals who can provide specialised assistance to companies in global trade matters. Our professionals can help companies seeking to manage the impacts and potential impacts of the developments described above by:
Meng Yew Wong