Miami-Based Trade is Booming (So is Enforcement)

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WorldCity, a Miami, Florida, media company focused on the impact of global trade “ and a strategic partner of Fuerst Ittleman “ reported on June 16, 2010 that import and export trade through South Florida ports is showing double-digit growth in 2010. From the Ports of Key West north to Palm Beach County, exports rose by more than 14% and imports surged by more than 26% through April.

This resurgence in trade is welcome relief following 2009, which saw record drops in trade activity in the Miami District. Tony Ojeda, executive director of Miami-Dade’s International Trade Consortium commented in a Miami Herald article, “I think 2009 didn’t exist. It was a terrible year for all of us. But this year, there’s a feeling of optimism.”

While many trade exports pin most of the trade growth on the revival of moribund Latin American economies, trade through the Miami Customs District with other countries such as the Bahamas, China and Switzerland are on pace to set new records in 2010. Moreover, the overall Latin American economy did not suffer as much as that of the United States and Europe in the recession which began in 2008.

Adding fuel to the resurgence in local trade is a significant increase in commerce between China and Latin America “ trade which very often transits the ports of the Miami area. Ojeda pointed out that Taiwan is planning to bring a 40-member delegation to South Florida later this summer. “They are very interested in establishing a foothold here in Miami to serve as their gateway to Latin America,” he told the Miami Herald.

Trade Enforcement is Increasing as Well

Yet hand-in-hand with this resurgence in trade is a surge in enforcement by U.S. Customs and Border Protection (CBP) and the other federal agencies which monitor imports and exports such as the U.S. Food and Drug Administration (FDA) and the U.S. Department of Agriculture (USDA).

CBP recently announced the seizure of almost $220 million counterfeit goods “ in April 2010 alone “ as part of a focused enforcement effort against intellectual property rights violations. Compare this number with fiscal year 2009, in which CBP seized a total of $260 million in counterfeit merchandise.

Similar enforcement initiatives by Investigative and Enforcement Services, an arm of USDAs Animal and Plant Health Inspection Service, have resulted in increased fines and penalties for importers introducing invasive species and not conforming to phytosanitary requirements. The FDA has also jumped on the enforcement bandwagon targeting importers of food products and medical devices for increased scrutiny.

For guidance on how your import/export business, or related business, can take advantage of the surging trade economy while maintaining strong regulatory compliance, contact Fuerst Ittleman at 305-350-5690 or contact@fidjlaw.com.

ANN TAYLOR ESCAPES FTC ENFORCEMENT ACTION

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On December 1, 2009, the Federal Trade Commissions New Endorsement Guides took effect.  One of the requirements in the endorsement and testimonials guide states that a blogger must disclose any material connection or remuneration received in connection with their review of a product or service.  If such disclosure is omitted the advertiser may be liable for any deceptive or misleading claims made in the blog.

In late January, only weeks after the FTCs New Endorsement Guides went into effect, the retailer of womens apparel, Ann Taylor LOFT, hosted a fashion show to preview the chains summer 2010 collection.  As is customary at these events, the attendees received special gifts.  Furthermore, to stir up excitement the attendees were told that if they blogged about the show they would be entered into a drawing for a gift card.  Sure enough, a few blogs appeared on the web, several of which did not disclose the bloggers “gift card incentive.”  Ann Taylor had placed signs around the event advising all would-be bloggers to disclose the “gift card” incentive in blogs reviewing the fashion show.  However, some bloggers did not see the sign and posted reviews without revealing the gift incentive.  The FTC took notice and launched the first public investigation into “compensated bloggers” since the guides took effect.

After the investigation, the FTC decided to forgo an enforcement action in which it would have sought a monetary penalty from Ann Taylor.  In the April 20th closing letter the FTCs Associate Director, Mary Engle, explained that the FTC was withholding enforcement because  “the January 26, 2010 preview was the first (and, to date, only) such preview event.”  Second, the number of overall bloggers at the event was small with an even smaller subset failing to disclose the gifts.  Third, Ann Taylor “adopted a written policy in February 2010 stating   [Ann Taylor] will not issue any gift to any blogger without first telling the blogger that the blogger must disclose the gift in his or her blog.”  While the letter closes the door on the investigation it stands as a warning to advertisers to be vigilant over how the blog-o-sphere reports on their products and services.

Court Authorizes Refund of EU Retaliatory Duties

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On June 16, 2009, Gilda Industries, a small bakery and importer in Hialeah, Florida, struck a blow for importers everywhere when it prevailed in its case in the U.S. Court of International Trade.  The result of this case is that importers everywhere may qualify for a full refund of the 100% retaliatory duties paid to U.S. Customs and Border Protection (CBP) on certain products imported from the European Union on or after July 29, 2007.

The decision in Gilda Industries v. United States becomes the latest chapter in what is known as the “EC-Beef Hormones” dispute.  The dispute began in 1985 when the European Community (now the European Union) banned imports of beef and beef products from the United States that had been treated with hormones.  As a result, the U.S. imposed a 100% retaliatory tariff on a “retaliation list” of European Union products.

In theory, the retaliatory measures should have ended in mid-2007.  However, when CBP continued to collect the retaliatory tariffs after that date, Gilda took the matter to court.

The Court found that the 100% retaliatory tariffs did, in fact, terminate on July 29, 2007, and it ordered CBP to refund the retaliatory duties collected on Gilda’s imports after that date.  The Court’s opinion, however, opens the door for a full refund on all of the retaliatory duties paid to CBP after that date for all of the affected products

Importers who qualify for refunds should immediately file an action with the U.S. Court of International Trade to preserve the right to the refunds.  These actions must be filed before July 29, 2009.

The list of products subject to the 100% retaliatory duties – for which refund may be due -includes various meats, cheeses, vegetables and other food items.  For the complete list of products affected, click here.

For the decision of the Court in Gilda Industries v. United States, click here.

If you are importer who believes that you may be due refunds of duties from CBP under this decision, please contact Fuerst Ittleman at 305-350-5690 or contact@fidjlaw.com.  You should not delay.

Fuerst Ittleman Assists Clients and Earns a “Thank You”

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Bio-Nucleonics, Inc., a leading Florida company specializing in radiopharmaceuticals, medical devices and imaging agents, gave a hearty “Thanks” to Fuerst Ittleman in its most recent issue of BioBulletin, the companys newsletter.

Fuerst Ittleman recently assisted Bio-Nucleonics with gaining FDA approval for the companys new Doral, Florida product manufacturing facility. The FDAs approval certifies that Bio-Nucleonics uses “current Good Manufacturing Practice” (cGMP) in all its production at this state-of-the art facility.

The FDA also gave approval to Bio-Nucleonics for its proposed release criteria and timeframes for specific lot release tests to be completed prior to shipment of finished drug products. The importance of this ruling is that no material is lost to radioactive decay and each dose can be shipped immediately to the customer.

FHI assisted Bio-Nucleonics with both of these efforts. We found it such a pleasure to work with clients who were as knowledgeable, dedicated, and thorough as the team at Bio-Nucleonics, and were glad that they liked working with us, too.

Let Fuerst Ittleman help guide your company to its next success. For more information, contact us today at 305.350.5690 or contact@fidjlaw.com

Food Safety Legislation Update

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The House Energy and Commerce Committee convened to discuss draft legislation that would broadly affect regulation of food production, importation, and manufacturing inside and outside of the U.S.  Newly confirmed FDA Commissioner Margaret Hamburg testified before the committee on The Food Safety Enhancement Act of 2009 (FSEA).

 

FSEAs major initiatives are:

  • Registration fees for domestic and foreign producers as well as importers
  • Creation of an identification system for businesses in the food supply chain
  • Risk-based frequency levels of inspection
  • Increasing FDAs subpoena power
  • Two tier approach to recalls: voluntary and mandatory

Democratic Party proponents, led by Representative Dingell of Michigan, emphasized the “dire situation” of food safety and characterized the legislation as a means of recreating the FDA with new and stronger enforcement and financing tools.  Opponents largely criticized the passing of costs to consumers, regulation that does not guarantee results, and also chided the hearing on draft legislation, rather than a finalized text.  Another recurring critique was the broad discretion given to make mandatory recalls.  Some committee members took exception to the Commissioners admission that senior officials, not only the Commissioner, might be given the power to issue mandatory recalls.

 

Commissioner Hamburg unequivocally supported the legislation, saying that it would base food safety monitoring on prevention.  She also agreed with the legislations legal empowerment of the agency as well as its requirement that user fees be generated by the food industry.

Foreign Bank Accounts and the IRS

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Original Article: Mitchell S. Fuerst: Foreign Bank Accounts and the IRS [pdf]

Federal Agencies Publish “Good Importer Practices”

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On January 12, 2009, the Interagency Working Group on Import Safety published draft guidance for industry entitled “Good Importer Practices.” The working group is comprised of the U. S. Departments of Health and Human Services (Food and Drug Administration), Agriculture, Commerce, Homeland Security, and Transportation and the U.S. Consumer Product Safety Commission, the U.S. Environmental Protection Agency, and the Office of the U.S. Trade Representative.

The Working Group organized the guidance into four broad “guiding principles”:

– establishing a product safety management program;
– knowing the product and applicable U.S. requirements;
– verifying product and firm compliance (throughout supply chain and life cycle); and
– taking corrective and preventive action (when necessary).

These principles give importers a roadmap they can follow to ensure that the products they import, and the processes they use to import those products, comply with myriad U.S. statutes and regulations. While the document is not a “how to” guide “ with steps that match up to specific code citations “ the guidance is an indispensible tool for management, which they can use to make sure that they are asking the right questions, and establishing the right programs and processes, for regulatory compliance.

The draft guidance encourages importers to focus on the life cycle of an imported product; for example, from growing and harvesting, to processing, packing, transporting, and distributing. At each step, importers should consider how to implement controls to help decrease the risk that the product could cause harm to people, animals, or the environment. In doing so, importers will help ensure overall regulatory compliance.

The guidance is also important for third-parties in the import process, such as consolidators, shippers, brokers and distributors. In the current regulatory environment, in which the government is focusing on everyones role in the security and safety of imports (and penalizing those who break the rules), even these third-parties should have processes in place to make sure that the importers with whom they work are complying with government rules and regulations.

Following this guidance laid out by the government is essential for all U.S. importers. If you dont follow the roadmap, you may soon be lost.

The complete “Draft Guidance for Industry Good Importer Practices” can be found here.

Let Fuerst Ittleman help you with your roadmap for regulatory compliance. Our attorneys have years of experience in designing programs, policies and procedures to help importers stay on the right path and avoid problems with regulators. Contact us at 305-350-5690 or contact@fidjlaw.com.

A Rosa gallica by any other name?USDA Levies New Requirements on Imported Plants and Plant Products

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The Lacey Act is the U.S. Department of Agriculture’s primary tool for combating illegal imports of wildlife, fish, and plants. Under the Act, it is unlawful to import – or for that matter to “export, transport, sell, receive, acquire, or purchase” – any plant harvested or traded in violation of any state’s laws, or most foreign laws.

Amendments to the Act in 2008 expanded its reach to protect more plants and plant products. (Before these amendments, many of these restrictions only applied to endangered species.) As of December 15, 2008, certain plants and plant products cannot be imported into the United States without an import declaration. This declaration must indentify the following information:

– scientific name of any imported plant (including genus and species),
– value of the importation,
– quantity of the plant, and
– name of the country from which the plant was taken (not just exported).

There are certain types of plants that are exempt from the new amendments. These include “common cultivars” (except trees), common food crops, scientific specimens of plant genetic material used in research, and plants that are to remain planted or to be planted or replanted. The USDA will be defining exactly what is meant by a “common cultivar” in the coming months.

It is important to note that import declarations are also required for plant products. Examples of such products – to the extent that they contain covered plants – include lumber, paper, furniture, sporting goods, musical instruments, vehicles, pharmaceuticals and textiles. The effect for importers will be far-reaching.

An electronic system soon will become available for collecting the information required on the declaration. In the meantime, importers may submit a paper form containing the required information on a voluntary basis. Once the electronic systems are in place, declarations will be mandatory and civil and criminal penalties may apply for failure to comply. Merchandise found to be in violation of these provisions may be subject to seizure and forfeiture.

To help importers generate the required information, USDA’s Animal and Plant Health Inspection Service (APHIS) has developed an online tool for looking up the genus and species names of plants. The tool is invaluable for complying with the new Lacey Act amendments. It can also make you sound smarter as you present your loved one with a gorgeous bouquet of Dianthus caryophyllus.

Fuerst Ittleman has years of experience in meeting USDA and other government agency requirements for the importation of plants and plant products. For assistance with your valuable importations, please contact us at 305 350 5690 or contact@fidjlaw.com.

A Happy, and More Secure, 2009

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Instead of merely wishing its people a “Happy New Year” for 2009, U.S. government regulators have taken many recent actions to ensure that 2009 will be a more secure new year as well – secure from potential threats posed by foreign imports.

U.S. Customs and Border Protection recently (CBP) enacted its “10+2” rule, more formally called the “Importer Security Filing and Additional Carrier Requirements.” This rule requires U.S. importers to provide CBP with ten additional data elements (such as the manufacturer and country of origin) as part of import filings, and requires import vessel carriers to provide two extra pieces of information to the agency. The purpose of this rule is to enhance CBP’s ability to identify high-risk shipments – such as potential weapons for terrorists – before they enter the United States.

Similarly, the Consumer Product Safety Improvement Act (CPSIA) was signed into law in 2008 and gives the Consumer Product Safety Commission powerful new tools to safeguard us from hazardous imported products. The CPSIA is primarily aimed at protecting children from imported toys and other products, which may contain hazardous substances such as lead and other contaminants. It requires that manufacturers – including importers – and private labelers of certain products certify (by issuing a certificate that accompanies the product) that the products comply with all applicable consumer product safety rules.

Joining the fight against potential threats posed by hazardous, imported products, the U.S. Food and Drug Administration’s Food Protection Plan targets the $49 billion worth of food imported into the United States each year, and the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service is busy safeguarding the meat, poultry, egg product, and agricultural commodities coming over our borders every day.

Does all of this regulation make us more secure?

We know so. We have seen melamine-laced consumer products stopped at our ports and disease-infested meats denied entry to the U.S. We have first-hand knowledge of dangerous materials being intercepted by CBP and unsafe medical products kept from entering U.S. commerce.

Thanks to the tireless efforts of these government regulators and the men and women serving at our borders, like you, we are looking forward to a happy, prosperous and more secure 2009.

Best wishes to all of our friends and clients in the coming year!

For more information on how Fuerst Ittleman can assist you in meeting these requirements or your other regulatory or legal needs, please contact us at 305 350 5690 or contact@fidjlaw.com.