The U.S. law prohibiting imports of goods made with forced labour is Section 1307 under Title 19 of the United States Code. Since the Trade Facilitation and Trade Enforcement Act in 2016 that repealed the statutory exception that allowed many products made using forced labour to enter the U.S., CBP has ramped up enforcement of products made using forced labour, which are primarily from China.1 Since then, CBP has issued over 50 Withhold Release Orders (WROs), assessed millions in civil penalties associated with forced labour products, and detained over 900 shipments under the authority of those WROs and Findings. The major industry areas that are targeted for U.S. forced labour enforcement include cotton and other textiles, cell phones, computers, electronics, foodstuffs and seafood.
Defining forced labour Although forced labour is defined under U.S. law under 19 U.S.C. 1307, much of the terminology surrounding forced labour is defined by international law in the Forced Labor Conventions administered by the International Labor Organization (ILO).2 The term “forced labour” is defined as all work or service which is exacted from any person under the menace of any penalty for its nonperformance and for which the worker does not offer himself voluntarily.3 The term “forced labour” includes slave labour, but also includes forced or indentured child labour and indentured servitude. As defined by the ILO , the phrase “menace of any penalty” refers to a wide range of penalties used to compel someone to work. The phrase “offered voluntarily” means the free and informed consent of a worker to take a job and his or her freedom to leave at any time.
The ILO has published several indicators that forced labour is occurring, including debt bondage, abuse of worker vulnerabilities or disabilities, withholding of identity documents and wages, restriction of movement, intimidation and threats, physical and sexual violence, abusive workingand living conditions, and excessive overtime. However, certain types of nonconsensual labour do not fall under the ILO’s definition of “Forced Labor,” such as community service imposed by a court of law, work in an emergency (such as war, fire, flood, famine, or earthquake), prison labour under supervision and control of a public authority, and normal civic obligations (such as compulsory military service).
Penalties and forced labour enforcement
Under U.S. law, penalties for importing goods made using forced labour are severe and can include issuance of new import restrictions (such as WROs and Findings), the detention/seizure/forfeiture of violative merchandise, civil penalties for entering merchandise contrary to law under 19 U.S.C. 1595a(b), up to 20 years of imprisonment for individuals under 18 U.S.C. 1589, and revocation of import privileges, such as bond or CTPAT privileges. For an example of penalties for importing goods made using forced labour, in 2020, CBP collected $575,000 in penalties under 19 U.S.C. 1595a(b) from Pure Circle U.S.A., Inc., which was found to have violated a WRO targeting a Chinese company named Inner Mongolia Hengzheng Group Baoanzhao Agricultural and Trade LLC (“Baoanzhao”) after an investigation into twenty of Pure Circle’s stevia shipments. Another example includes a seizure at the port of New York/Newark of 13 tons of hair products worth over $800,000 in 2020 that were imported in violation of a WRO on hair products from Chinese company Lop County Meixin Hair Product Co. Ltd.
Withhold Release Orders (WROs) and Findings.
CBP can issue WROs and Findings after investigating4 foreign companies that use forced labour, which prohibit the goods made by those companies to enter the U.S. The goods that are subject to a WRO or Finding are subject to detention, seizure, and forfeiture by CBP if the goods are imported into the U.S.
Withhold Release Orders (WROs)
When CBP determines that there is a reasonable suspicion that a company is using forced labour in its foreign factory, supply chain, or geographic region, the agency may issue a WRO. The WROs will list the foreign company that is using forced labour, provide a product description of the prohibited goods, and provide the ILO indicators of forced labour present. WROs are posted to the forced labour page on CBP’s website at https://www.cbp.gov/trade/programs-administration/forced-labour. At the request of an interested petitioner, WROs and Findings can be modified (suspended) if the forced labour indicators are remediated at the foreign company, and revoked if there is proof the foreign company is no longer engaged in forced labour. The most notable5 and comprehensive WRO in effect is the Hoshine Silicon Supply Chain WRO, which applies to “silica-based products made by Hoshine Silicon Industry Co. (Hoshine) and its subsidiaries as well as to materials and final goods derived from or produced using those silica-based products, regardless of where the materials and final goods are produced.” The WRO further specifies that the prohibition applies to all products in the company’s supply chain, including component materials (including metallurgic grade silicon, silicon oxide and certain silicones in primary forms), intermediate goods (such as additives for aluminium alloys and concrete, integrated circuits, and semiconductor devices), and finished Hoshine goods (such as adhesives, electronics, lubricants, photovoltaic cells, solar generators, solar panels, and parts thereof). The most guidance on forced labour compliance comes from this WRO, including a highly detailed WRO description, frequently updated FAQs, and a detailed importer guidance document. To continue reading about Forced Labour, please click here.
1 Prior to 2016, Section 1307 contained an exception that allowed for the importation of merchandise produced with forced labour if the goods were not produced in sufficient quantities in the United States to meet the consumptive demand of the United States.
2 https://www.ilo.org/dyn/normlex/ en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C029.
3 https://www.ilo.org/global/topics/forced-labour/definition/lang–en/index. htm
4 For more on the investigation timeline and process for WROs and Findings, visit CBP’s at https://www.cbp.gov/sites/default/files/assets/ documents/2021-Sep/Slicksheet_Forced_Labor_timelines_investigative_ benchmarks_508Compliant_Pub_2.pdf.
5 The UFLPA superseded the WROs related to XUAR for goods imported after June 21, 2022.
