EU Forced Labor Ban Includes Enforcement Process, Wider Scope, Lawyer Says
The proposed European Union forced labor trade ban waits to stop goods until after a government investigation finds the goods contain forced labor, in contrast to the U.S. approach, which automatically bans all imports that are suspected to be made with forced labor, without a separate investigation, trade lawyer John Foote said.
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The proposal, which was discussed by Foote in a substack post on Dec. 15, was revised by the European Parliament in October (see 2310170031).
"It’s only if an enforcement action is initiated (via investigation by a national-level authority, or the European Commission itself) and successfully completed that any goods end up being banned from the common market," Foote said. This is the opposite to the U.S. forced labor ban which is "unilateral and crate blanche," he said. The U.S. forced labor ban doesn't rely on enforcement action and simply bans goods made with forced labor. That means importers who bring in goods that are later determined to be made with forced labor are already breaking the law.
The European approach will lead to "high-stakes investigations," which will be "heavily lawyered," fiercely contested, and "may or may not result in certain goods being banned from the EU common market," Foote said.
Another difference between the EU approach and the U.S. approach is that it is a "'can’t sell it on the common market' ban" rather than an import ban, he said. This means the proposed EU ban is "multi-directional," Foote said.
Foote also discussed some of the positives of the EU proposal. He liked that the proposal was "rules forward" and has more codified language than current U.S. law. This is not because more language is inherently better, but if "you take the time to spell out everything you expect to do in the context of enforcement" you’re likely to have a "more coherent theory of the case," he said. By writing everything out, hopefully the EU will "avoid mistakes" that were made by the original Uyghur Forced Labor Prevention Act, Foote said. He said the critical mistake was assuming CBP officials could spot forced labor when goods arrive.
Foote also liked the addition of a publicly available database. "In a general sense, if you’re going to enforce a law on the basis of information, the more that information can be public knowledge, the better it is for everyone involved," he wrote.