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CPSC Reissues Children’s Sleepwear and Loungewear Enforcement Policy

Grunfeld Desiderio, Lebowitz, Silverman Klestadt /

The Consumer Product Safety Commission (“CPSC”) recently reissued a policy statement regarding the treatment of sleepwear and loungewear under the children’s sleepwear flammability standards.

The CPSC’s letter to the trade reiterates its policy on this issue which was initially published in December 1996 and again in 2008. A copy of the statement can be found at

Children’s sleepwear garments are subject to strict flammability requirements. The regulations define the term “children’s sleepwear” to include any product of wearing apparel (in sizes 0 – 14), such as nightgowns, pajamas, or similar or related items, such as robes, intended to be worn primarily for sleeping or activities related to sleeping*. Significantly, the CPSC considers “loungewear” as well as similar garments marketed as comfort wear to be garments worn primarily for sleep-related activities. Therefore, loungewear must comply with the children’s sleepwear flammability requirements.

Companies are prohibited from selling, offering for sale, importing and/or distributing non-compliant children’s sleepwear. It is, therefore, critical for companies to assess their product lines and marketing in light of the CPSC’s position in order to avoid a product recall and potentially significant penalties.

Additional 3rd Party Testing Required for Children’s Products Manufactured After December 31, 2011

The new year brings additional requirements with regard to children’s products subject to the lead content, phthalate and toy (ASTM F963) standards. While compliance with these standards has been required dating back to 2009, importers and manufacturers must now issue compliance certifications based on testing performed by accredited 3rd party testing labs for goods made after December 31, 2011.

CBP, ICE Release Report on 2011 Counterfeit Seizures

U.S. Customs & Border Protection /

Washington – Theft of American intellectual property is a serious crime, and U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement announced today that their vigorous, ongoing efforts to protect America from the trade in counterfeit and pirated goods during fiscal year 2011 resulted in 24,792 seizures, a 24 percent increase over 2010.

Many fake goods seriously threaten the health and safety of American consumers and our national security. With this in mind, CBP and ICE continued to step up enforcement against these dangerous products resulting in a 44 percent increase in the number of seizures of health and safety products that could have harmed Americans. The value of these seizures soared to more than $60 million due to increases in pharmaceutical and perfume seizures.

Despite the significant increase in the number of seizures, the domestic value for seizures in fiscal year 2011 decreased by five percent to $178.9 million and the manufacturer’s suggested retail price declined slightly to $1.1 billion. This is primarily due to a shift toward using international mail, express courier and consolidated shipping services to import counterfeit and pirated goods.

“The growth of websites selling counterfeit goods directly to consumers is one reason why CBP and ICE have seen a significant increase in the number of seizures at mail and express courier facilities,” said Acting CBP Commissioner David V. Aguilar. “Although these websites may have low prices, what they do not tell consumers is that the true costs to our nation and consumers include lost jobs, stolen business profits, threats to our national security, and a serious risk of injury to consumers.”

“I'm very proud of the unrelenting efforts of the ICE-led National Intellectual Property Rights Coordination Center and our law enforcement partners," said ICE Director John Morton. "IP enforcement is a high priority for ICE and CBP because the trade in counterfeit and pirated goods robs Americans of jobs and puts their safety at risk, costs legitimate businesses billions of dollars in revenue, and fuels criminal activity. In fiscal year 2012, ICE and CBP will continue to focus on keeping these goods off the streets and bring those responsible for producing and distributing them to justice."

China continues to be the number one source country for counterfeit and pirated goods seized, accounting for 62 percent or $124.7 million of the total domestic value of seizures.

For the first time since FY 2005, footwear was not the top commodity seized in fiscal year 2011. Consumer electronics were the top commodity seized, and approximately one-third of this category was represented by IPR infringing cellular phones.

The top 10 categories of IPR-infringing products seized were pharmaceuticals, health/personal care, eyewear/parts, critical technology components, electronic articles, cigarettes, perfumes/colognes, batteries, exercise equipment and transportation/parts.

As the federal agency responsible for the management, control and protection of U.S. borders, CBP is on the frontline of IPR enforcement. The men and women of CBP protect our nation’s economy, the safety of its people, and our national security against harm from counterfeit and pirated goods. The continued vigilance of CBP personnel protects U.S. citizens and businesses every day.

As the largest investigative arm of the Department of Homeland Security, ICE Homeland Security Investigations plays a leading role in targeting criminal organizations responsible for producing, smuggling, and distributing counterfeit products. ICE HSI focuses not only on keeping counterfeit products off our streets, but also on dismantling the criminal organizations behind such illicit activity.

The National Intellectual Property Rights Coordination Center is one of the U.S. government's key weapons in the fight against criminal counterfeiting and piracy. The IPR Center uses the expertise of its 19 member agencies to share information, develop initiatives, coordinate enforcement actions, and conduct investigations related to IP theft. Through this strategic interagency partnership, the IPR Center protects the public's health and safety, the U.S. economy and the war fighters.

New Task Force on China Trade Expected to be Announced Soon by White House

Sandler Travis & Rosenberg PA /

Press reports indicate that President Obama is likely to announce as soon as his State of the Union address this month the creation of a new interagency task force primarily designed to enforce trade rules with respect to China. The task force will reportedly be headed by Deputy National Security Advisor for International Economic Affairs Mike Froman, and participants are expected to include the departments of Commerce, Energy and the Treasury as well as the Office of the U.S. Trade Representative. While The Wall Street Journal states that details are “still being worked out,” an Inside US Trade article states that only options that comply with World Trade Organization rules will be considered. The article notes that possible measures include a new WTO case against the value of China’s currency, despite the fact that the administration has consistently refused to name China a currency manipulator, or the self-initiation of new antidumping and/or countervailing duty proceedings by the Commerce Department, although the latter appears to have precluded by a recent appeals court decision.

Whether the forthcoming task force is anything more than election year politicking or will yield any kind of substantive change to U.S. policy on trade with China remains to be seen. In a Jan. 11 blog post published by the journal Foreign Policy, former U.S. trade official Clyde Prestowitz drew a parallel between the new China task force and a similar group targeting unfair trade practices that he led in the mid-1980s. Then, as now, the U.S. economy was struggling with persistent unemployment and foreign competition as national elections loomed. Prestowitz said that his panel identified European Union subsidies to Airbus as a “a beautiful target” for enforcement action but that this idea was summarily dismissed due to national security concerns, specifically the need to maintain cohesion with European allies against the Soviet Union. Given Washington’s current need for Beijing’s cooperation on a number of national security concerns around the world, he concluded, a similar outcome this time may be foreseen.

Proactive at the Ports: CPSC Stops Unsafe Products Before They Reach Consumers

Consumer Safety Products Commission /

WASHINGTON, D.C. - Stepped up efforts by the U.S. Consumer Product Safety Commission (CPSC) to be more proactive have resulted in hundreds of millions of violative or dangerous units of products being stopped at U.S. ports and prevented from ever reaching the hands of consumers.

Working with U.S. Customs and Border Protection (CBP), CPSC staff screened thousands of consumer products that were either in violation of U.S. standards or otherwise unsafe and stopped them from ever reaching store shelves. The hard work of CPSC and CBP staff in 2010 and 2011 resulted in more than 6.5 million units of about 1,700 different children's products being stopped at our nation's ports, due to safety concerns or the failure to meet federal safety standards.

"Intercepting dangerous products as quickly and as early as possible, well before they make their way into the hands of children and other consumers, is consistent with our vision for CPSC to continue enhancing its protection of America's families," said Chairman Inez Tenenbaum.

The products stopped are wide-ranging. In addition to toys and other children's products, items targeted at import include mattresses, art materials, household chemicals, lighters, fireworks, bike helmets and all-terrain vehicles. Some of the reasons they were stopped include violations of the standards for flammability, lead paint and lead content, phthalates and small parts.

Port surveillance is not new. Imported products have long been screened at the port by CPSC and CBP. However, since its creation in 2008, CPSC's import surveillance and inspection team, has steadily increased the size of its staff at some of the largest U.S. ports of entry, at CPSC's headquarters and at a CBP operations center.

"The marketplace of imported consumer goods has expanded rapidly in recent years requiring CPSC to take an increasingly global view of consumer product safety," said Carol Cave, Director of the Office of Import Surveillance and Inspection.

"In response to the lead in paint recalls in 2007, CPSC started to place investigators at key ports of entry full time," Cave added. "Having CPSC staff who have the training and equipment necessary to identify non-complying products under CPSC jurisdiction at the ports has improved coordination and cooperation with CBP and industry."

According to Cave, working side by side at the ports has lead to more effective import enforcement by reducing exam times and increasing interagency communication. "We are working smarter," adds Cave, "but, because of the large volume of products being imported that are under CPSC's jurisdiction, it is critical that, as the agency moves forward, we systematically evaluate the risk of incoming shipments and expand the number of staff inspecting merchandise."

Chairman Tenenbaum is announcing that the results of efforts at the ports will be published regularly in 2012 to inform and reassure consumers that CPSC is on the job working to keep consumers safe by detecting and detaining dangerous or violative imports before they reach store shelves.

"We want the American public to know that CPSC stands for safety and we are doing all we can to identify and stop unsafe products from being introduced to our marketplace, so that consumers will have fewer things to worry about," Tenenbaum said.

San Juan CBP Finds Increase of Thrips in Imported Cut Flowers

U.S. Customs & Border Protection /

San Juan, Puerto Rico – Insects can find the most inconspicuous places to hide which may lead to significant effects on the local economy.

“As we are almost a month away from the busy Valentine’s Day season, CBP wants to caution importers to use appropriate phytosanitary measures to manage the presence of pests,” said Marcelino Borges, Director of Field Operations for Puerto Rico and the U.S. Virgin Islands.

For the past several weeks, CBP agriculture specialists in San Juan have documented an increase in the interception of Thrips (species of Thysanoptera) on various shipments of cut flowers; such as Roses, Dianthus, Chrysanthemums and Aster, imported from Colombia.

Common names for thrips include thunderflies, thunderbugs, storm flies, thunderblights, and corn lice. Thrips species feed on a large variety of sources, both plant and vegetables, by puncturing them and sucking up the contents. A large number of thrip species are considered pests, because they feed on developing flowers or vegetables causing discoloration, deformities, and reduced marketability of the crop.

Flower-feeding thrips may be responsible for pollination while feeding, but their most obvious contribution to their ecosystem remains on the damage they can cause during feeding. Flower-feeding thrips are attracted to bright floral colors, especially white, blue, and yellow, and will land on the flowers and attempt to feed. Some flower thrips will "bite" humans wearing clothing with such bright colors, though no species feed on blood. Such biting does not result in any known disease transmission, but skin irritations may occur.

Growers use limited pesticides or biological insecticides to control thrips populations in the field and in greenhouses.

All infested and contaminated shipments with actionable pests or violations are safeguarded and transferred for appropriate re-export and/or destruction under CBP agriculture specialist custody and/or treatment by the U.S. Department of Agriculture Animal and Plant Health Inspection Service/Plant Protection and Quarantine (USDA-APHIS-PPQ).

Invasive species include non-native, alien, or exotic plant pests (such as insects, mollusks, weeds, or pathogens); animal and zoonotic disease pathogens, which can transmit diseases between animals and humans; or other organisms that can cause economic or environmental harm to U.S. agriculture, range, and forest systems if they enter the United States.

While most plant pest introductions occur unintentionally as an end result of increased global travel and trade, acts of biological terrorism which threaten the United States' agricultural and natural resources are a rising fear. Plant pests, weeds, and diseases are all potential agents of bioterrorism.

CBP recommends exporters, importers and producers to be cognizant of the U.S. Phytosanitary measures and packing procedures before shipping/importing their products.

Nonetheless, CBP agriculture specialists safeguard American agriculture by demonstrating careful diligence as they examine imported shipments detecting and preventing entry into the country of plant pests and exotic foreign animal diseases that could harm agricultural resources. They do this with inspection and prevention efforts designed to keep prohibited agricultural items from entering the United States. These items, whether in commercial cargo or as “hitchhikers” with an international airline/vessel passenger or a pedestrian crossing the border, could cause serious damage to America’s crops, livestock, and the environment.

U.S. Customs and Border Protection Import Specialists and Officers Seize over $782,000 in Counterfeit Camcorders, CD and MP3 Players

U.S. Customs & Border Protection /

Laredo, Texas – The U.S. Customs and Border Pro tection Laredo port of entry Import Specialist Enforcement Team targeted and seized 18,000 items, including digital camcorders with memory cards, car radios and parts that infringed on the Secure Digital or “SD” registered trademark. The merchandise was valued at over $782,000 and seized in two separate trademark enforcement actions.

In the first enforcement action, CBP import specialists from the Laredo ISET team targeted a manifested shipment of 15,000 items, including digital camcorders with memory cards, for an enforcement examination. CBP import specialists and officers conducted an examination at World Trade Bridge and discovered possible infringement on the SD trademark, which is a trademark recorded with CBP. A determination was made that the camcorders bearing the SD trademark did not have the required legal authorization needed for use of the SD trademark and the shipment was detained pending trademark infringement verification. CBP later determined the merchandise to be counterfeit and seized it.

In a second case, CBP import specialists from the Laredo ISET team targeted and detained a shipment containing more than 3,000 items, including CD players, MP3 players and spare parts (face plates, remote controls, connectors, brackets and integrated circuits) which also lacked the required documentation for the use of the SD recorded trademark. Trademark infringement verification by CBP revealed the merchandise to be counterfeit. All merchandise was seized.

The combined manufacturer’s suggested retail price of both shipments, had the trademarks been genuine, was more than $782,000.

CBP’s vigilant enforcement of Intellectual Property Rights protects America’s businesses against the threat of unfair and illicit competition from foreign companies and prevents goods that may be dangerous to consumers or national security from entering the United States.

“CBP’s Import Specialist Enforcement Team and CBP officers detained and seized two significant shipments of goods that infringed on the SD trademark. Their astute targeting and vital work protects American consumers from potentially substandard merchandise infringing on legitimate trademarks,” said Sidney Aki, CBP Laredo Port Director.

The Department of Homeland Security’s recent annual report on IPR seizure statistics documents the increasing illicit activity that CBP faces every day in the ports of entry. In fiscal year 2011, DHS made 24,792 seizures with an MSRP of $1.1 billion. Goods from China accounted for 62 percent of all the goods seized and the number of potentially dangerous goods seized increased by 40 percent in fiscal year 2011 over fiscal year 2010

Overview of IPR Enforcement: A Priority Trade Issue

U.S. Customs & Border Protection /

The trade in counterfeit and pirated goods threatens America’s innovation economy, the competitiveness of our businesses, the livelihoods of U.S. workers, and, in some cases, national security and the health and safety of consumers. The trade in these illegitimate goods is associated with smuggling and other criminal activities, and often funds criminal enterprises.

Safety and Security Threats
CBP has targeted and seized an increasing number of counterfeit products that pose safety threats to American consumers, to our infrastructure, and potentially to our security. These products range from electrical articles such as power cords and lights that can catch fire or shock consumers, to batteries that may explode or leak mercury, to personal care items such as toothpaste and shampoo that may contain harmful bacteria, to computer network components and semiconductors that can cripple infrastructure vital for national security.

Strategic Approach to IPR Enforcement
Stopping the flow of fake goods is a priority for the U.S. government, and CBP has designated intellectual property rights (IPR) enforcement as a Priority Trade Issue (PTI). Our strategic approach to IPR enforcement is multi-layered and includes seizing fake goods at our borders, pushing the border outward through audits of infringing importers and cooperation with our international trading partners, and partnering with industry and other government agencies to enhance these efforts. CBP provides considerable resources, diverse personnel and focused training to respond to IPR issues.

IPR enforcement is integrated into the work of several offices throughout CBP. The Office of International Trade develops national IP enforcement policy and initiatives, directs foreign diplomacy, targets shipments of IPR infringing goods, audits infringing importers, and provides training and legal guidance on IPR seizures and penalties. CBP officers and Import Specialist from the Office of Field Operations inspect and seize IPR infringing shipments at ports of entry on a daily basis. Other CBP offices, including the Office of Information and Technology and the Office of International Affairs and Trade Relations, provide valuable expertise in laboratory analysis and provide assistance with foreign diplomacy to further CBP’s IPR enforcement mission. CBP internally coordinates IPR strategy through an intra-agency PTI IPR Working Group. This Working Group, which includes representatives from the Office of International Trade (OT), the Office of Field Operations (OFO), the Office of Chief Counsel, the Office of International Affairs and Trade Relations (INATR), the Office of Information Technology (OIT), and U.S. Immigration and Customs Enforcement (ICE), meets on a regular basis to address IPR policy and enforcement issues and to focus the resources of offices throughout CBP.

Domestic Partners in IPR Enforcement
CBP’s enforcement is accomplished through the cooperative efforts of our trained enforcement officers, other government agencies, and the trade community. We coordinate our enforcement efforts with U.S. government trade policy and law enforcement agencies. In addition, CBP works closely with ICE to carry out criminal IPR enforcement actions. As the primary border enforcement agency, CBP is a key player in The Administration’s inter-agency Strategy for Targeting Organized Piracy (STOP!).

CBP also works closely with the trade community on IPR enforcement. CBP conducts industry outreach by partnering with rights owners and industry organizations to collaborate on IPR education, and to share information on trends, and where appropriate, on individual cases of suspected IPR infringement. CBP has an on-line recordation system, Intellectual Property Rights e-Recordation, which allows rights owners to electronically record their trademarks and copyrights with CBP, and facilitates IPR seizures by making IPR recordation information readily available to CBP personnel.

International Partners in IPR Enforcement
CBP collaborates with international organizations and foreign governments to enhance IPR border enforcement efforts globally. CBP actively participates in the IPR working groups of several international organizations including the World Customs Organization, the G8, and APEC. CBP also has significant ongoing bilateral efforts. CBP has a memorandum of cooperation with the People’s Republic of China to strengthen the enforcement of intellectual property rights laws through exchange of information on seizures and trends, and effective enforcement programs. CBP also is implementing a five point IPR action plan with the European Union, and is partnering with Canada and Mexico through the Security and Prosperity Partnership (SPP) on a strategy to reduce counterfeiting in North America.

Additional Information
More information on CBP’s IPR enforcement can be found in CBP’s Appendix to the 2008 Report to the President and Congress on Coordination of Intellectual Property Enforcement and Protection.

FDA Bars Woman from Importing Food for 30 Years for Smuggling Adulterated Dairy Products

Sandler Travis & Rosenberg PA /

The Food and Drug Administration has issued an order prohibiting a woman from importing or offering for import into the United States any article of food for 30 years, effective Jan. 13. FDA is basing this order on a finding that the woman was convicted of six felony counts related to the smuggling of adulterated dairy products into the U.S. Specifically, FDA states, the woman (a) failed to disclose the location of, and then distributed, shipments of dairy products after learning that FDA had slated specific shipments for examination due to concerns of adulteration, (b) failed to redeliver for destruction and exportation shipments of dairy products that FDA had determined to be adulterated, and (c) distributed dairy products that were adulterated and not authorized for entry.

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