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21 Feb 2020

Meg Roggensack & Anasuya Syam, Human Trafficking Legal Center

Reading the Stevia Leaves: Early Clues to Federal Enforcement of the Ban on Imports Made with Forced Labour

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21 February 2020

Labor rights advocates cheered when Congress acted in 2015 to remove an exception to the longstanding ban on imports into the U.S. of products made with forced labor (Section 307 of the Tariff Act of 1930). That exception, known as the “consumptive demand” exception, swallowed the rule, allowing importation of goods not made in quantities sufficient for U.S. consumption. 

The Trade Facilitation and Trade Enforcement Act of 2015 eliminated that loophole. Since then, Customs and Border Protection (CBP) has gradually begun to issue orders detaining or preventing from entry into the U.S. all products tainted by convict labor, forced labor, and forced child labor. So far, CBP has issued thirteen orders halting importation of goods. Blocked goods include the artificial sweetener stevia from China, gold mined in Democratic Republic of Congo, tobacco harvested in Malawi, diamonds mined in Zimbabwe, and rubber gloves produced in Malaysia.

CBP can suspend a shipment based upon “a reasonable but not conclusive indication of a violation,” a standard lower than “probable cause.” Advocates and activists may submit petitions directly to CBP requesting an order against a specific good.  These third-party submissions must provide detailed information about the product and evidence exposing the use of forced labor in its production. Advocates have devoted decades to investigating and documenting forced labor. But Section 307 of the Tariff Act was, until recently, a largely unused tool in the advocacy toolbox. That is now changing. What is CBP looking for in these petitions?

The Human Trafficking Legal Center has analyzed the thirteen orders issued since the repeal of the consumptive demand loophole, along with CBP’s public statements about those orders. These materials provide useful clues to the types and quantity of information most likely to support a CBP investigation leading to enforcement action.  

CBP’s enforcement actions to date reflect five key findings:

  1. When workers speak, CBP listens. Worker testimonies and documentation of working conditions and treatment are among the most compelling evidence. This information provides concrete, verifiable proof of forced labor; links it to a specific place, time and product; and often helps establish the connection to a U.S. purchaser. Direct testimony matters.
  2. Creative evidence collection can overcome home government resistance. Inadequate cooperation by local government authorities is a significant challenge to CBP’s enforcement efforts. The  Congressonal Executive Commission on China highlighted this hurdle in its 2019 report, noting the difficulties for worker rights organizations and journalists.  But journalists and NGOs are starting to get creative, and their example provides some useful inspiration for future Section 307 petitions. Sparked by an Associated Press reporton forced labor at the Hetian Taida factory, the Worker Rights Consortium undertook a factory investigationusing technology and third-party information to corroborate the forced labor allegations. Aerial photos showed a heavily guarded and secure production facility adjacent to a detention center in Xinjiang. The photographs also provided evidence of restrictions on movement between these two facilities. The factory’s location correlated to information about China’s prison labor camps, including state press releases and other materials on the detention network and policies, reported by the New York Times. (Nine months after the original AP report, and three months after WRC’s factory report, CPB issued an order on garments from this factory. A subsequent AP report linked Costco to that factory.)
  3. Now is the right time. Since March 2016, CBP has issued 13 orders suspending shipments of goods made with forced labor (called withhold release orders, or WROs). In the 85 years prior to the amendments to the Tariff Act, CBP had issued only 33 such orders. But why does CBP decide to pursue some products and not others? In pressing their petitions, advocates should take into account policy priorities of other U.S. government agencies.  Recent CBP orders track with other federal policy initiatives, including a tougher stance on trade with China; Congressional concerns about Uighur detention centers; financial sanctions on nationals associated with Zimbabwe diamond mines; and ongoing cooperation with Brazil to address forced labor in cattle and charcoal sectors. The amendments make this the ideal time to press for new CBP orders, particularly in sectors that dovetail with other federal policy priorities. 
  4. The dots must connect. CBP is tasked with enforcing Section 307 against specific products landing at U.S. ports. CBP has its own data and conducts its own investigations, but submissions that connect the dots to specific abuses at a specific production site to a U.S. purchaser have a stronger likelihood of success. The 2018 Greenpeace report “Misery at Sea” provided extensive detail about the fishing harvest activities of a vessel, Taiwan Tunago No. 61. That reporting supported CBP’s decision to ban imports of any fish caught on that vessel, even though the fish was not brought to the U.S. aboard that vessel. The Associated Press’ Martha Mendoza has similarly provided extensive supply chain detail in her investigative reporting on seafood. In other instances, the type of product may make supply chain traceability issues simpler, as in the case of Malawi tobacco, where the type of leaf is distinctive, and the country is one of few producers in the world. In that case, CBP took the unusual step of banning all tobacco imports from Malawi. Other determinations involving an entire sector are Turkmenistan cotton, where advocates have a longstanding history of engagement and have forged a detailed understanding of the production process, and gold mined from artisanal mines in the Democratic Republic of Congo. 
  5. Better a choir than a soloist. In virtually all of CBP’s determinations, the agency relied on multiple, consistent sources to corroborate the forced labor allegations. Evidence and sourcing should go beyond that of one submitting organization. As the success of the Cotton Campaign (a coalition of NGOs focused on forced labor in Turkmenistan and Uzbekistan) shows, partnerships and cooperation matter. Advocates seeking to bolster their petitions have submitted detailed press investigations; U.S. government reporting on human rights, trafficking in persons, and forced and child labor; Congressional oversight reporting; U.S. industry advocacy and reporting; and evidence obtained through regional and international organization engagement. These multiple sources provide both a level of confidence and political support for CBP’s determinations. Multiple sources also increase the likelihood that the CBP order will, if challenged by the importer, withstand that scrutiny. Of the 13 WRO’s issued under Section 307 since the consumptive demand loophole’s repeal, only one has been revoked and one partially lifted. Prior to the change in the law, 9 of 33 were revoked in full and one partially revoked. Currently, CBP is currently enforcing 36 active WROs.

With the release of its Strategy to Combat Human Trafficking, the Importation of Goods Produced with Forced Labor, and Child Sexual Exploitation, the Department of Homeland Security has signaled its intention to use its enforcement authority aggressively. The Human Trafficking Legal Center, with support from Humanity United and the Freedom Fund, will soon release a template for advocates submitting petitions to CBP, as well as a guide on Section 307 petitions. These tools will strengthen long-standing efforts to hold corporations – and importers – accountable when their supply chains are tainted by forced labor.  DHS’s commitment to enforcement of these trade remedies provide an unprecedented opportunity: to eliminate forced labor from supply chains worldwide.


Meg Roggensack is a trade attorney and human rights expert who previously served as interim Executive Director of the International Corporate Accountability Roundtable (ICAR). She is a consultant to the Human Trafficking Legal Center.

Anasuya Syam serves as the Human Trafficking Legal Center’s Human Rights and Trade Policy Advisor.