Likelihood of Shop Safe Movement in House Recedes

Momentum on a bill to prevent the sale of counterfeit goods in e-commerce has slowed, Rep. Darrell Issa, R-Calif., acknowledged. Earlier, he had hoped the Shop Safe (Stopping Harmful Offers on Platforms by Screening Against Fakes in E-commerce) bill would move in the House Judiciary Committee in May or June.

"I don't know if that's still on the agenda," Issa said in a hallway interview this week. He and Judiciary Committee ranking member Rep. Jerry Nadler, D-N.Y., introduced a revised version of the bill June 12. Issa noted that the Judiciary Committee has also spent time on what Republicans call the weaponization of the federal government, "so the availability of time for hearings and markups was limited." Issa is chairman of the Judiciary Subcommittee on Courts, Intellectual Property and the Internet. That IP mission is linked to Shop Safe.

The Judiciary Committee's Select Subcommittee on the Weaponization of the Federal Government has held three hearings since Issa said in May that he thought Shop Safe would have a markup "in the next few weeks" (see 2405070082). Those hearings were on the New York state case on payments to Stormy Daniels by the Trump campaign; on purported overreach by the Bureau of Alcohol, Tobacco, Firearms and Explosives; and on the broader concept of using prosecution as political warfare, which covered former President Donald Trump's classified materials case in Florida (which has since been dismissed by a federal judge).

"It's just time's running out on all of us," Issa said, though he added: "We think we'll still get [a markup] in September."

The House is scheduled to be in session for three weeks in September, and then won't return to Washington until Nov. 12, for a lame-duck session.

Judiciary Committee Chairman Jim Jordan, R-Ohio, when asked about the possibility of a markup on the bill, said, "Is that Darrell's? Let me go check [with him] because I just haven't thought about it for a while."

Jennifer Hanks, American Apparel and Footwear Association senior director of plan protection, said in a recent telephone interview: "We're hoping that it moves forward." She said bill advocates have held lobby days once a month since March.

The Shop Safe Coalition includes more than 25 industry group associations, she said. "The lack of proactive action on [e-commerce] platforms is a huge issue," she said. "We are advocating not only for our members but for all consumers."

Hanks said companies that host online commerce platforms "claim that they’re doing so many of these things" that the Shop Safe Act would mandate. She said feedback from those companies resulted in changes to the last version of Shop Safe.

The act has not been able to pass the Senate since it was first introduced in 2020 (see 2003030049); while brands that are plagued by counterfeits want to see it pass (see 2212280036), it has faced strong opposition from e-commerce giants and other tech interests (see 2310030071).

Hanks said that while some people would say this version doesn't go far enough, she said it's a fair compromise. "It’s the floor of what we need," she said. "We really need to have the platforms come to the table, because brands are constantly doing all the work [of identifying counterfeits] for the platforms."

The bill would direct rights holders to notify the platforms of their marks to help the platforms screen for counterfeits, but it doesn't allow each platform to have a proprietary program to do so. While the bill aims to implement contributory liability for e-commerce platforms that don't take down counterfeits, companies can avoid such liability in many other ways, for instance, by requiring their overseas sellers to agree to U.S. court jurisdiction, including a U.S. address to be served for a lawsuit.