Retail, Fashion Industries Urge Public Database of Forced Labor Bad Actors

The Forced Labor Working Group (FLWG), an ad hoc group of retail and fashion industries, “proposes a holistic and collaborative multi-faceted framework” for enforcing the Uyghur Forced Labor Prevention Act (UFLPA) “that will meet U.S. jurisprudence and due process requirements.” The proposal includes keeping a public database of bad actors and the tainted import goods they’re associated with, the FLWG said, in docket DHS-2022-0001. The group was created by the American Apparel and Footwear Association, the National Retail Federation, the Retail Industry Leaders Association and the U.S. Fashion Industry Association.

The FLWG is composed of many "prominent companies," organizations and associations, "and its members condemn the use of forced labor and understand that traceable supply chains are an important goal in achieving ethical and compliant sourcing," the groups said. The U.S. approach to curbing forced labor historically has been to impose restrictions on the importation of merchandise allegedly produced with forced labor, “rather than rooting out forced labor at the source,” they said. “This indirect approach and the current inconsistent enforcement scheme is not effective at achieving the ultimate goal of eliminating forced labor.”

The FLWG’s proposed enforcement framework “embraces transparency and communication, which will encourage companies across all industries to vet their supply chains to ensure that suppliers do not have a nexus” to China’s Xinjiang Uygur Autonomous Region (XUAR), the groups said. The framework also emphasizes “uniform documentation” that CBP can “efficiently review,” they said. “To that end, due diligence and compliance programs should be practical from a financial and operational perspective and must consider the potential impact that the enforcement strategy will have on small and medium sized companies.”

The “safeguards and processes” in the proposed framework are aimed at avoiding most CBP “detentions” of incoming goods, “because importers will have the information necessary to structure supply chains to avoid a nexus to XUAR,” the groups said. The proposed uniform enforcement strategy “will apply to all goods, including merchandise from high-priority industries, and should effectively prevent goods produced with forced labor from entering the U.S.,” they said. Should goods be detained under the UFLPA, the FLWG proposes a “list of evidence and specific documentation that may be accepted so that CBP can expeditiously review submissions,” they said.

DHS’s Forced Labor Enforcement Task Force should publish a “prohibited list,” and store it in a public database, of entities that are “active or complicit in the use of forced labor in or from XUAR and the corresponding products they produce,” the groups said. “Public comment should be solicited in formulating this list,” they said. CBP should be directed not to detain merchandise unless an importer’s supply chain “definitively” involves an entity or product listed in the database, they said.

The task force should not include an entity on the prohibited list “unless clear and convincing evidence demonstrates that the entity manufactures merchandise using forced labor,” the groups said. “This evidentiary standard is necessary because the rebuttable presumption standard in the UFLPA is essentially a ‘guilty until proven innocent’ standard.”

After the prohibited list is published, importers would be afforded sufficient time “to conduct due diligence to determine whether any prohibited suppliers/products are in the supply chain before enforcement begins,” the groups said. The list should be accessible in a “variety of searchable data formats to allow importers and other end-users to integrate designated entities into automated scanning solutions,” they said.

The task force needs to develop a “clear procedure” for challenging the inclusion of any entity or goods on the prohibited list “at any time after the list is published,” the groups said. The government should also publish CBP “forced labor data and specific trends” to help companies with their due diligence efforts “by providing a better understanding of CBP’s concerns,” they said.

Importers conventionally “are forced to divine information from press releases or by attempting to aggregate trends through industry surveys,” the groups said. “The current process keeps CBP’s most effective allies in the dark. We understand CBP cannot disclose information that is law enforcement-sensitive or involves trade secrets, but increased information sharing would benefit all stakeholders.”