Recent comments from US Consumer Product Safety Commission (CPSC) officials, as well as import enforcement actions by the Environmental Protection Agency (EPA) and the Food and Drug Administration (FDA), indicate that importers should expect product safety issues to be a principal area of enforcement for the foreseeable future.

Specifically, the CPSC and other federal agencies have recently put importers on notice that they must comply with all applicable safety laws when importing goods or face detention of goods and/or monetary penalties as illustrated by the examples below. As such, US importers should continue to expect increasing enforcement of customs and import safety laws in the coming months and next year.

CPSC to begin issuing its own penalties and detention notices
At the recent Western Cargo Conference of the Pacific Coast Council of Customs Brokers and Freight Forwarders Association, held October 22-24, 2010, a CPSC official announced that CPSC will begin issuing its own detention notices, notably for failure to thoroughly test and certify all parts of an imported item.

CPSC is seeking injunctive relief to prevent a company from importing into the United States, relying on authority under recently enacted legislation. Under similar new authority, CPSC’s authority to impose penalties is now up to $100,000 per violation, with a maximum of $15 million for any related series of violations.

CPSC also announced that it expects to increase staff at ports, and will report to Congress in February on its staffing needs for the future. In the meantime, CPSC is working closely with US Customs and Border Protection (CBP) staff at ports that do not have a CPSC inspector.

FDA increases detentions of certain unapproved new drugs
In September 2010, FDA published an Import Alert containing a “Red List” of importers whose products would be detained automatically and without physical examination for FDA violations. The Red List includes more than 400 firms who allegedly have been importing misbranded unapproved new drugs.

EPA sues importer for failure to report imported pesticides
EPA filed a complaint against Millipore Corporation in October 2010 for failure to submit Notice of Arrivals (NOAs) to the EPA for imports on numerous occasions when importing unregistered pesticides (chlorine tablets) for distribution or sale. EPA’s complaint alleges that these Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) violations occurred from 2005 to 2008 and seeks a penalty of up to $6,500 for each violation.

Importers should remember that they are ultimately responsible for complying with import safety laws enforced by CPSC, FDA, EPA, and other government agencies. To ensure a smooth and compliant import process, importers should:

• Keep customs brokers aware of what types of goods are being imported and what agency rules apply;
• Make sure goods are classified correctly;
• Make sure necessary testing, certifications, and other documentation have already been completed and are available upon request;
• Ensure products are described in sufficient detail in the invoice and other import documentation; and
• In the case of goods subject to the Consumer Product Safety Improvement Act (CPSIA), make sure any third-party labs used to test covered products are accredited by CPSC.

If importers find themselves the subject of any of the above-described new enforcement actions, we strongly recommend that they contact someone knowledgeable with these agencies to assist in working to either cancel or mitigate the penalty or enforcement action taken.
For further information regarding import safety laws or customs and border protection issues, please contact the Arent Fox attorney with whom you work or a member of Arent Fox’s International Trade Practice Group.