US law targeting forced labor in China has implications for seafood trade

The recently introduced Uyghur Forced Labor Prevention Act, signed into law in the U.S. in December 2021, has relevance for seafood importers, according to a lawyer advising American seafood firms on compliance.

Jessica Rifkin, an attorney at Glen Burnie, Maryland, U.S.A.-based Benjamin L. England and Associates, said the law – which came into effect 21 June, 2022 – will impact the seafood industry despite the far-west location of Xinjiang, where China’s suppression of the local Uyghur population has taken place, including allegations of forced labor.

“While some seafood importers may assume that the UFLPA is largely irrelevant, the act actually does present a credible risk to seafood importers,” Rifkin told SeafoodSource. “UFLPA’s presumption that goods are made with forced labor is not limited to goods produced in Xinjiang, but it also extends to goods made outside of Xinjiang with the use of Uyghurs transferred from Xinjiang via government labor-transfer schemes.”

Rifkin cited a report published earlier this year by risk analysis and compliance advisory firm Kharon showing that as recently as February 2020, the Shandong Meijia Group, a seafood processing and distribution company located in Shandong, China, had accepted workers under the Uyghur labor-transfer program. Kharon reported seafood produced by the Meijia Group was exported to the U.S. and Canada as recently as April 2022.

The Uyghur Forced Labor Prevention Act could also impact value-added seafood products manufactured in China, Rifkin said.

“UFLPA presumes goods made in whole or in part in Xinjiang, or with the use of Uyghurs forcibly transferred outside of Xinjiang, are made with forced labor.  That means that even if an imported good was not produced in or is not being imported from Xinjiang, it is still presumed under UFLPA to have been made with forced labor if it contains any input or ingredient – no matter how small,” Rifkin said. “CBP has said there is no de minimis exception [if it] was made in Xinjiang, or by forcibly transferred Uyghurs, or by entities listed on the UFLPA Entity List.  This could cover, for example, frozen seafood dinners containing garlic or tomatoes grown in Xinjiang.”

Rifkin said her law firm is seeing increased awareness of forced labor issues in the seafood industry.

“That being said, we believe there is still work to do to heighten the community’s awareness of the risks posed by forced labor and importers’ obligations to ensure that they are not importing goods made in whole or in part with forced labor,” she said.

The U.S. government has been less reluctant to criticize China’s trade practices in recent years as the relationship between the two countries has deteriorated, Rifkin said. That trend, coinciding with a wider U.S. crackdown on unfair and illegal labor practices abroad, have resulted in U.S. agencies like Customs and Border Protection stepping up their inspections and enforcement of seafood imported from Asia.

“While we believe that CBP views Chinese-origin seafood imports as being at risk of forced labor, we believe that CBP is looking at the risk more broadly throughout the Asian region as well.  For example, the [U.S.] Department of Labor’s 2022 List of Goods Produced by Child Labor or Forced Labor lists seafood produced in Thailand, Taiwan, Vietnam, Myanmar, Bangladesh, and Cambodia, as well as China,” Rifkin said. “Similarly, the 2022 version of the [U.S.] State Department’s Trafficking in Persons (TIP) Report lists Thailand and Taiwan as producing seafood made with forced labor, although Thailand was upgraded to Tier Two status.”

The U.S. crackdown appears to have slackened recently, though Rifkin said that didn’t appear to be the result of a change in policy from the administration of U.S. President Joe Biden.

“While the pace at which [Customs and Border Protection] was issuing seafood-related Withold-Release Orders was increasing in 2020 and 2021 and while CBP issued a Finding [enforcement action] on seafood harvested by the Da Wang [a Taiwanese owned vessel] in January of 2022, CBP has not issued any seafood-related WROs or Findings since that time. Of course, because CBP does not give any notice before issuing WROs or Findings, this could change at any time.”

Rifkin said she advised seafood companies doing business in the U.S. to make sure they are in compliance with the latest U.S. forced labor legislation, including adding new provisions to their commercial documentation to address the issue explicitly.

“While we have successfully helped clients in other non-seafood sectors obtain the lifting of both WROs and a Finding, we have not performed these services for seafood clients to-date,” Rifkin said.

Obtaining the lifting of a WRO or a Finding is a “complex, fact-based process, requiring the aid of an auditor that will be viewed as credible by CBP, the submission of a petition for revocation or modification with CBP, and detailed factual follow-up,” Rifkin said.

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