Fashion Intel & Analysis

(Prepared by Brenda A. Jacobs, Sidley Austin LLP)

In this TDM:

CPSC Debates Proposed Rulemaking on Public Database

The Consumer Product Safety Commission once again revealed a wide divergence of views at a public meeting this morning to discuss a draft proposed notice of rulemaking on the public database. CPSC is required to create and implement, on its web site, a publicly searchable database of consumer product incident reports, to be known as

The proposed website is currently scheduled to be in place by March 2011. During the hearing, four commissioners on hand raised the following concerns and questions for this database:

  • the broad range of persons who could submit product incident reports (including bystanders and others without direct knowledge),
  • the absence of a limitation on the age of incidents (which could have happened many years before the database is in place),
  • whether there should be a limitation on the length/size of a response by a manufacturer,
  • whether a report should remain on the database indefinitely,
  • whether there should be a distinction between incidents caused by misuse of a product and those occurring in the course of normal use and abuse, and
  • the availability of adequate CPSC resources to review the reports once submitted (to determine whether the requirements for publication are satisfied).

The CPSC is expected to vote next week on whether to approve the draft notice for publication in the Federal Register. Once published, there will be a 60 day public comment period.

Separately, the Commission has postponed the hearing to discuss 15 month rule to April 15 instead of April 8. Voting will take place on April 21st.

Treasury Secretary in Beijing This Week; Deputy US Trade Representative Headed to Beijing Next Week

China is definitely front and center on the agendas of Obama Administration officials. First came reports this morning that Treasury Secretary Timothy Geithner is headed to Beijing to meet with Chinese Vice Premier Wang Qishan on Thursday, with currency presumably the primary topic. Subsequently, Deputy U.S. Trade Representative Demetrios Marantis, whose portfolio includes Asia, announced that he will travel to Beijing next week. Marantis stated that he expects to discuss a number of trade issues, including concerns about China's "indigenous innovation" policy (under which companies must have produced their intellectual property in China in order for their products to be considered for government procurement projects), other intellectual property rights issues, sanitary and phytosanitary rules that impact U.S. agriculture trade, investment restrictions, and border measures.

(Prepared by Brenda A. Jacobs, Sidley Austin LLP)

U.S. Reaches Agreement With Brazil On Path to Resolution, Ending Current Threat of Retaliation Against U.S. Exports

Last November, the Brazilian Government threatened to impose tariff increases on hundreds of products, including 72 different tariff provisions covering U.S.-made textiles, apparel and home furnishing products, and to disregard U.S. intellectual property rights, as retaliation against the United States for failing to abide by a World Trade Organization determination against several U.S. cotton subsidy programs. A final list was issued in March, with the punitive tariffs scheduled to go into force tomorrow. Today, however, a tentative agreement was announced that eliminates that threat, at least for now, even though the U.S. subsidies continue.

In what is described by the Administration as "a path toward a negotiated settlement," the United States has agreed to work with Brazil to establish a fund of more than $147 million per year to provide technical assistance and capacity building to Brazil, and to take steps that should allow Brazil to expand its exports of pork and beef to the United States. The two governments are still working on a Memorandum of Understanding that would provide that the fund will continue until passage of the next Farm Bill or a mutually agreed solution to the dispute is reached, whichever is sooner. The Administration has been limited in its ability to comply with the WTO decision, which found that several U.S. subsidy programs are inconsistent with U.S. obligations under the WTO, because it is up to Congress to change the relevant U.S. laws. This understanding should give the Administration time to work with Congress on the necessary changes.

It is important to emphasize, though, that the announced understanding does not represent a complete resolution. More negotiations are on tap. According to the Office of the U.S. Trade Representative and the U.S. Department of Agriculture, the U.S. and Brazil are aiming to agree by June to "a process . . . that will allow . . . a mutually agreed solution." That process may take a long while.

USTR Names New AUSTR for China

The Office of the USTR is expected to announce shortly that the current chief counsel for China trade enforcement, Claire Reade, will become the new assistant USTR for China affairs. Reade has been with the USTR general counsel’s office since 2006, and prior to that was a senior partner at Arnold & Porter LLP.

Clinton Says U.S. Committed To Finalizing ROZ Bill

Following the meeting on March 24-25th between U.S. Secretary of State Hillary Clinton and Pakistan Foreign Minister Shah Mahmood Qureshi, the two countries issued a joint statement on the U.S.-Pakistan Strategic Dialogue. According to the statement, the dialogue has been elevated to the Ministerial level, and a Policy Steering Group has been created to expand the U.S.-Pakistan dialogue on trade, the economy, and other issues. Most importantly, the statement says that the U.S. wants to finalize legislation to establish Reconstruction Opportunity Zones (ROZs), which would provide duty-free treatment for certain U.S. imports -- including apparel -- from Afghanistan and Pakistan. The ROZ legislation has been tied up in the Senate with opposition from U.S. labor groups and negotiations over product coverage and geographic coverage.

USA-ITA Congratulates Bersin and Sanchez

Following the recess appointments by President Obama, USA-ITA sent congratulatory letters to the new Customs Commissioner, Alan Bersin, and the new Commerce Department Under Secretary for International Trade, Frank Sanchez. The Bersin letter mentioned the disparity between duties on textile and apparel versus other manufactured goods, and urged working together towards more harmonized rules of origin and documentation requirements. The Sanchez letter highlighted the US-China trade relationship and the importance of the TPP negotiations. USA-ITA looks forward to working with Customs and Border Protection and the Commerce Department. Copies of the letters are available on the USA-ITA website here.

In this TDM:

(Prepared by Brenda A. Jacobs and Pete Kasperowicz, Sidley Austin LLP)

Treasury Delays April Currency Report

In typical Washington good cop-bad cop fashion, while Congress threatens China over its currency policies, the Administration has called a time-out, delaying by at least three months the report on currency manipulation that was due to be issued April 15.

Treasury has been under pressure from Congress to cite China as a currency manipulator in its April report on foreign currency practices, pressure that includes warnings from the Senate that legislation might be pursued if Treasury failed to cite China. Treasury was under similar pressure during the Bush Administration, and managed to avoid both citing China and legislation. This time, however, Treasury got around the problem at least in the short term by saying meetings over the next few months might lead to some progress in getting China to let the value of the renminbi appreciate.

In a Saturday statement, Treasury cited three reasons for delaying the report: 1) this month's G-20 meeting of finance ministers and central bank governors in Washington, 2) the next Strategic and Economic Dialogue (expected in May), and 3) the G-20 finance and leaders meeting in June. Treasury Secretary Tim Geithner said he thinks these meetings are "the best avenue for advancing U.S. interests at this time." Click here to read the statement.

But there is also speculation that Chinese President Hu Jintao's visit to Washington next week was a factor, as well as China's decision last week to agree to start substantive talks on a United Nations resolution that would tighten sanctions against Iran. While the White House has denied any link between currency and Iran, China’s participation in the UN process is critical and has long been sought by the Obama Administration, and it seems unlikely China would agree to cooperate with this U.S. priority in the wake of a Treasury citation. Another possible factor that went unspoken over the weekend is the expectation that China is about to allow the renminbi to appreciate very soon, and was waiting for its exports to recover before beginning the process.

Treasury's announcement prompted several members of Congress to reiterate their "bad cop" roles, notably Sen. Charles Schumer (D-NY), who said Congress would press ahead with currency legislation. House Ways and Means Committee Chairman Sandy Levin (D-MI), who has resisted legislation, said that if multilateral efforts failed legislation might be needed.

Consumers Groups Seek FTC Investigation into 'Organic' Product Claims

On March 12, the Consumers Union and the Organic Consumer Association filed a petition asking the Federal Trade Commission to investigate misleading claims that personal care products are "organic." The petition argues that the lack of a uniform standard is allowing some manufacturers to inappropriately claim their products as organic, without revealing which standard was used.

The petition has the potential to build momentum for some uniformity of standards. It follows a July 2009 decision from the U.S. Department of Agriculture that said USDA only regulates organic personal care products made with agricultural ingredients, and has "no plans" to develop standards in this area. Last November, the National Organic Standards Board, which advises USDA, voted to require USDA to certify organic personal care products, but USDA has yet to act on that recommendation. For more information, click here to see the Sidley Austin Client Alert on the USA-ITA website.

CPSC Posts More Proposed Rules, Including "15 Month Rule"

The staff of the Consumer Product Safety Commission has posted more proposed rules, including the so-called "15 month rule," which is intended to identify the testing and labeling requirements applicable to products subject to General Conformity Certificates and Third Party Certification. (It is called the 15 month rule because it was supposed to be issued no later than 15 months after enactment of the Consumer Product Safety Improvement Act (CPSIA), which was November 2009, but the CPSC determined that it needed more time to prepare the rule.) The draft proposed rules also include conditions and requirements for testing component parts. These very detailed draft rules are expected to be discussed at a public meeting of the CPSC this Thursday, although what gets published in the Federal Register for public comment may not be decided until later in the month.

Under the CPSIA's "15 month rule," the Commission shall by regulation

(A) initiate a program by which a manufacturer or private labeler may label a consumer product as complying with the certification requirements of subsection [and]
(B) establish protocols and standards— (i) for ensuring that a children’s product tested for compliance with an applicable children’s product safety rule is subject to testing periodically and when there has been a material change in the product’s design or manufacturing process, including the sourcing of component parts; (ii) for the testing of random samples to ensure continued compliance . . . .

The draft Federal Register notice lays out the proposed rule that would establish requirements for a reasonable testing program and for compliance and continuing testing for children's products. The proposal would also address labeling of consumer products to show that the product complies with certification requirements under a reasonable testing program for non-children's products or under compliance and continuing testing for children's products. A lengthy 75 day comment period is proposed – and given the complexity and detail of the proposal, that much time may be necessary for affected manufacturers, importers and sellers to fully consider their implications.

Very briefly, under the draft testing program proposal, a reasonable testing program for non-children’s products consists of five elements:

  1. A product specification that contains a description of the consumer product and lists the applicable rules, bans, standards or regulations to which the product is subject;
  2. Certification tests that provide evidence that a product identified in a product specification complies with the applicable rules, bans, standards, or regulations, based on testing of a sufficient number of samples that are identical in all material respects to the product to be distributed in commerce;
  3. a production testing plan that describes what tests must be performed and the frequency at which those tests must be performed to provide a high degree of assurance that the products manufactured after certification continue to meet all the applicable safety rules, bans, standards, or regulations;
  4. a remedial action plan that identifies the steps to be taken whenever samples of a product or a component part of a product fails a test or fails to comply with an applicable rule, ban, standard, or regulation; and
  5. a recordkeeping system to document the reasonable testing program.

More detailed rules are proposed for children’s products (which are subject to a third party testing requirement), including sufficient and random sampling for testing by an approved assessment body. (Interestingly, the CPSC staff recommends that a low volume for purposes of random testing be defined as less than 10,000 units.) Under the draft, each manufacturer also must establish procedures to safeguard against the exercise of undue influence by a manufacturer on a third party conformity assessment body.

The draft proposed rule also would allow manufacturers and private labelers of a consumer product to indicate, by a uniform label on or provided with the product, that the product complies with any consumer product safety rule, or with any similar rule, ban, standard or regulation under any other act enforced by the CPSC. Specifically, the draft rule would require “the label to be printed in bold typeface, using an Arial font of not less than 12 points, be visible and legible, and state ‘Meets CPSC Safety Requirements.’” The agency decided any other wording would not be adequate.

The proposed Federal Register notice also includes an extensive discussion of the costs of a reasonable testing program, acknowledging that the requirement for third party certification testing could be a barrier to new firms entering the children's product market, unless they expect to have relatively high volume products. The Commission invites comments on alternatives that could provide some relief to small businesses that would be adversely impacted by the proposed rule.

© Copyright 2010 USA-ITA, All rights reserved.

(Prepared by Brenda A. Jacobs, Sidley Austin LLP)

CPSC Approves Request For Comments On Children's Products Definition, To Hold Hearing On Toxicity of Heavy Metals

The Consumer Product Safety Commission continues to be very busy. On Wednesday, the five commissioners approved, with some changes that have not yet been publicly identified, a draft proposed guidance document on how it will determine whether an article is a children's product (and thereby subject to all the additional rules that apply to children's products). That proposal will be published in the Federal Register, possibly as soon as next week, kicking off a 60 day public comment period. (Originally only a 30 day comment period was proposed, but the extended time to file comments is among the changes agreed upon so far by the commissioners.)

Also this past Wednesday, the formal notice of the civil penalty factors the CPSC will take into consideration in the event of violations of the Consumer Product Safety Act (CPSA), the Federal Hazardous Substances Act (FHSA) and the Flammable Fabrics Act (FFA) was published in the Federal Register. Therefore, those factors now govern.

Two notable events are scheduled at the CPSC next week. First, on Wednesday morning, April 7, the Commission will hold a public hearing at which it will discuss its notice of proposed rulemaking on the public database. As USA-ITA members will recall, under Section 212 of the Consumer Product Safety Improvement Act, the CPSC is required to create a web-based searchable public repository of alleged product safety failures and allegations. The website that will house this database, to be known as "," is currently scheduled to be in place by March 2011. USA-ITA plans to attend the hearing, but you can too, because the meeting will be webcast by the CPSC.

The next morning, Thursday, April 8, the CPSC will hold a hearing on the toxicity of heavy metals, including lead and cadmium. Two expert witnesses are scheduled to testify in what appears to be a step in the process toward establishing CPSC rules on the use of heavy metals in children's products. USA-ITA members with comments or questions that should be addressed during this hearing are urged to contact USA-ITA. This hearing will be accessible via the web.

© Copyright 2010 USA-ITA, All rights reserved.