Senate Commerce Committee Passes ‘Made in USA’ Legislation
If passed by Congress and signed into law by the President, it would allow the Federal Trade Commission’s regulation of "Made in USA" labeling to supersede any state laws relating to a product that is introduced, delivered for introduction, sold, advertised, or offered for sale in interstate or foreign commerce with a "Made in USA" (or "Made in America") label, or any equivalent thereof, in order to represent that such product was in whole or substantial part of domestic origin. As California is currently the only state with specific "Made in USA" labeling laws, this proposed legislation would likely have the most impact on products sold in California. However, S. 118 contains a clause that did not appear in prior versions of the Reinforcing American Made Products Act that allows enforcement of state law relating to the use of labels when such labels are not in compliance with the FTC regulations governing "Made in America" labeling. It remains to be seen whether this clause was intended to be a nod to California because of recent flexibility added to that state’s "Made in USA" laws.
The bill was introduced on January 12, 2017 by Sens. Mike Lee (R-Utah), Shelley Moore Capito (R-W.V.), Susan Collins (R-Maine), Deb Fischer (R-Neb.) and Angus King (I-Maine). The bill’s May 18 mark-up by the Senate Commerce Committee signals support for moving the legislation forward towards eventual passage by Congress. Further, passage of the bill out of committee will likely be well-received by members of industry that utilize "Made in USA" labeling and advertising claims for products marketed in the US and abroad, as industry is generally supportive of legislation establishing national regulatory requirements, as opposed to having to comply with a hodge-podge of state labeling requirements. The measure will now be taken up by the full Senate and House for further consideration.
The FTC remains committed to enforcement of its "Made in USA" advertising and labeling policies, as evidenced by the Commission’s ongoing issuance of investigatory "closing letters." Between 2014 and 2016, the FTC issued approximately 57 closing letters, and has already issued eleven closing letters thus far in 2017 regarding "Made in USA" claims made by companies selling a variety of consumer goods, including, in part, pillows, water filters, and furniture. Such enforcement activity, as well as the 2016 election of the domestic-industry-friendly Trump administration, has many companies wondering whether they can market their products as "Made in USA," as well as whether they can sell such products to the government under the provisions of the Buy American Act.
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