The Department of Labor published on 10 September a list of 122 products from 58 countries that are believed to be made with child or forced labour. The list includes a range of products made in mainland China, namely artificial flowers (forced labour), bricks (child and forced labour), Christmas decorations (forced labour), coal (forced labour), cotton (child and forced labour), electronics (child and forced labour), fireworks (child and forced labour), footwear (forced labour), garments (forced labour), nails (forced labour), textiles (child labour) and toys (child and forced labour). The list also includes key products from several large U.S. suppliers, including garments from India, Thailand, Malaysia and Jordan; cotton from Brazil, Egypt, Pakistan, Turkey and Uzbekistan; footwear from Bangladesh, Brazil and India; textiles from Bangladesh; and leather goods and accessories from India. The list does not include any products made in Hong Kong.
The DOL notes that the listing of any particular good and country does not indicate that all production of that good in that country involves forced or child labour, but rather that there is a significant incidence of forced or child labour in the production of the good. In fact, the DOL acknowledges that there may be firms in any given country that produce listed goods in compliance with the law and others that wilfully employ child and forced labour.
This list has been published in accordance with the Trafficking Victims Protection Reauthorization Act of 2005, which also requires the DOL to work with persons who are involved in the production of the listed goods to create a standard set of practices that will reduce the likelihood that forced or child labour will be used in the production of their goods. The DOL explicitly states that the list is not intended to be punitive in nature and that its primary purpose is to raise public awareness about the incidence of child labour and forced labour in the production of the listed goods and promote efforts to eliminate such practices. The DOL hopes that better information on exploitive labour practices “will spur actions to eliminate child and forced labor and that goods and countries can be removed from the List over time.” The DOL will update the list as it obtains additional information through research and will also consider updates based on public information submissions, which may be filed at any time. Submissions requesting the removal of an item from the list must provide information that demonstrates that there is no significant incidence of child or forced labour in the production of that good in the country in question.
While inclusion on the list does not represent an import ban and the DOL does not have the authority to detain any of the listed goods at the border, the TVPRA also mandates the DOL to work with other U.S. agencies to ensure that products made (or harvested) by forced or child labour in violation of international standards are not imported into the United States. DOL officials could therefore work with the Department of Homeland Security’s Immigration and Customs Enforcement to selectively target violative products in the future, possibly beginning with imported products known for particularly egregious violations. As part of this process, ICE would have the authority to direct U.S. Customs and Border Protection to start issuing detention notices for those goods.
Perhaps a more pressing concern for Hong Kong and mainland Chinese exporters is the risk that the DOL list becomes a point of reference or even a sort of “black list” used by consumer groups and non-governmental organisations to pressure U.S. businesses to refrain from sourcing any of the listed goods. In addition, Congress could conceivably take steps in the future to assess specific sanctions on products included on the list or to otherwise expand labour-related enforcement efforts. For example, a provision included in a customs reauthorisation bill (S. 1631) that was introduced in the Senate on 6 August would expand existing prohibitions on the importation of goods made with forced, convict or indentured labour, including forced or indentured child labour, to include goods made by means of coercion or by persons subjected to a severe form of trafficking in persons. Specific penalties for violations of this law are provided in the amount of (1) three times the value of the violative goods for the first violation and (2) six times the value of the violative goods for the second and subsequent violations. In addition, any person determined to have engaged in a pattern or practice of violative actions would be banned from importing into or exporting from the U.S. The legislation would also mandate the establishment of an Office for Labor Enforcement within ICE to co-ordinate enforcement of the import prohibitions described above and oversee any investigations that are carried out.
Hong Kong and mainland Chinese exporters of any of the listed goods would be well-served to seek ways to participate in DOL efforts to create a standard set of practices that will reduce the likelihood that forced or child labour will be used in the production of their goods, so that these standards reflect business realities and promote compliant practices. Exporters should also begin moving now to ensure their own operations will pass muster, through measures such as assessing and understanding risk levels, strengthening compliance programmes, ensuring due diligence on monitoring enforcement, developing and documenting best practices, and effectively communicating efforts to appropriate audiences.
In a related action, the DOL issued on 11 September an updated list of products requiring federal contractor certification pursuant to Executive Order No. 13126 that it preliminarily believes might have been mined, produced or manufactured by forced or indentured child labour. This list includes four mainland Chinese products - bricks, cotton, electronics and toys. Interested parties may submit comments by 10 December on the DOL’s initial determination to include these products on the updated list. Following receipt and consideration of comments, the DOL, in consultation with the departments of State and Homeland Security, will issue a final determination in the Federal Register providing a final list of products.
If the DOL makes a final determination that forced or indentured child labour is being used in the production of any of the above products, the offending products would be added to the final list of products requiring federal contractor certification as to forced or indentured child labour. Inclusion on this list would require federal contractors who supply the subject products to certify that they have made a good faith effort to determine whether forced or indentured child labour was used to mine, produce or manufacture them and that, on the basis of those efforts, they are unaware of any such use of child labour. The list that is currently in force focuses almost exclusively on Burmese products, whose importation into the U.S. is already banned.