US Import Safety Advisory

The recent series of recalls involving imports of tainted, unsafe, or defective goods from China, including pet food, toothpaste, certain types of fish, blankets, chopsticks and a wide and growing variety of toys, has generated calls in Washington for closer scrutiny of imported consumer goods and food products.  Several pieces of legislation have been introduced, and it is likely that hearings will be held after Congress returns from its August recess.  While executive branch officials also have begun movement in this area (see Steptoe US Import Law Advisory of July 31, 2007), we expect that the Democratic-controlled House and Senate will be eager to move legislation quickly in this area.  There are likely to be oversight hearings followed by an effort to enact new legislation.  Businesses with interests related to the importation of consumer products or food should become active now to have input into this process.

In the very near term, Congressional action on food and product imports will likely take the form of oversight hearings.  The US House Energy and Commerce Committee recently sent letters to a number of different importers and retailers requesting information about their China imports, emphatically stating the Committee’s bipartisan intent to hold a hearing on these matters in September.  Although a specific date has not been set, and a final witness list has not been prepared, we are confident that a broad range of interested parties will be asked to testify.  Not to be jurisdictionally outdone, Representative Waxman (D-CA), Chairman of the House Oversight and Government Reform Committee, and an activist on food and consumer safety issues also is likely to hold hearings.  In the Senate, the Chairman of the Health, Education, Labor and Pensions Committee, Senator Kennedy (D-MA), may also become active.

Prior to adjourning earlier this month, there was flurry of legislation proposed to address the perceived problems with the US import system.  These proposals likely will form a basis for the upcoming hearings.  These proposals include: 

• The “Consumer Product Safety Modernization Act of 2007” (S.1847, introduced by Senator Durbin (D-IL)).  This legislation: (1) reauthorizes the Consumer Product Safety Act (CPSA); (2) intensifies the recall procedures available to the CPSC; and (3) increases fines and penalties for violations of the CPSA.  Senator Durbin is the Majority Whip, and therefore very influential in the movement of legislation.
• The “Imported Food Security Act of 2007” (S.1776, also introduced by Senator Durbin).  If enacted, this legislation would: (1) direct the Secretary of Agriculture to begin collecting “user fees” on the importation of food to pay for the new food safety inspection requirements under the Act; (2) require the Secretary to develop a new system, whereby foreign governments and foreign companies will be forced to receive a certification that their imports meet the “standards for food safety, inspection, labeling, and consumer protection that are at least equivalent to standards applicable to food produced in the United States;” and (3) permit the Secretary to halt the import of any specific food line unilaterally. 
• The “Safe Food Act of 2007” (S.654, also introduced by Senator Durbin, and H.R. 1148, introduced by Representative DeLauro (D-CT)).  This legislation: (1) establishes an entirely new “Food Safety Administration” (FSA), which would have consolidated control over food safety matters in the Federal government; (2) originates a sweeping new regulatory regime on virtually every aspect of food production and distribution, including a requirement for the registration of "foreign food establishments;" (3) requires regular inspections; and (4) imposes significant new civil and criminal penalties.  Significantly, Representative DeLauro is a member of the House Democratic leadership. 
• The “Food and Drug Import Safety Act of 2007” (a so-called "Discussion Draft" circulated by Representative Dingell (D-MI, noted above)).  This legislation: (1) imposes new food and drug safety inspection fees on imported foods; (2) restricts the ports to which foods may be imported; (3) requires country-of-origin and other labeling; and (4) affords significant new enforcement and recall authorities. 

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The accelerating pace of developments and the sweeping nature of the proposals being made suggests that businesses with interests in this area should promptly develop and implement programs to maximize their ability to impact the legislation that likely will result. 

Steptoe welcomes the opportunity to discuss these developments with you.  Please do not hesitate to contact Jim Barnette at 202.429.6207 with our Government Affairs Group for more information.