The Importation and Exportation of FoodsFood LawFSC-421

ImportationFDA and US Customs share jurisdiction over imported food productsFoods may be imported into the US so long as they meet the same standards as foods produced in US.USDA Jurisdiction over imported meat productsPursuant to 1906 Meat Inspection Act

US Customs ServiceSub unit of the US Department of the TreasuryCharged with assessing duties, fees, etcRequired to notify the FDA of the entry of any food products into the USNon-conforming food shipments will be seized by Customs and released only after written approval from FDA.

RegistrationFood products which are imported into the United States are require to meet all applicable requirements at the time of importationMust be conforming at the time they are offered for entry into the USNot adulterated or misbranded

ImportationCertain types of foods must comply with registration requirements:Specified dairy products (acidified milks, yogurts, cultured productsLow acid foodsAcidified foodsMeat processing facilitiesMust be manufactured according to specific processes

Entry and SamplingShipment must be filed with Customs within 5 daysCustoms notifies FDA if food productNotice to proceed or, Notice of SamplingRegistered foods almost certain to be sampled

Entry and SamplingNotice of Detention if nonconformingNotice of Refusal if nonconforming after samplingShipment destroyed unless exported within specified time

Importers Options if RefusedRequest hearing, within 10 days, to defend acceptabilityPermission to re-label or re-condition (IBP)Export shipmentRequest judicial review of Notice of Refusal

EnforcementFDA may order destruction of nonconforming goods if not reconditionedFDA may declare a bond violation if shipment distributed without Notice of AcceptanceFDA may order seizure and condemnation of nonconforming goods

Export OptionShipper has option after FDA condemnation of exporting the nonconforming goods as alternative to destruction if:Adulteration (or misbranding) did not occur after importationImporter had no knowledge of the nonconformityShipment is not otherwise in violation of US law

ExportationGoods intended for export need not meet FDA requirements if:Products meets specs of importing countryNot in conflict with laws of importing countryLabeling of shipment clearly indicates that it is for exportExport Exemption

Export ExemptionIs US less concerned with safety of products intended for export?Exempts exports from jurisdiction of FDA?Distribution into interstate commerce, nullifies the exemptionReferred to as the commodity dumping provision (Thalidimide, DES, Cyclamates)

Export ExemptionHow does exporter prove shipment complies with exemption requirements?Export Certificate issued by Official in importing country

ExamplesExporter wants to ship dried figs to Australian importer who uses them in coffee flavors. FDA seizes shipment because contaminated by worms and therefore Adulterated.What result?FDA alleges contaminated figs = impure material under Australian law. What result?

US v Catz American 53 F. 2d. 425Importer has options of re-conditioning goods to make them conform to Australian law or can divert them to some permitted use.So long as it is possible for the goods to comply with importers laws, US will allow exportation

Query:Agents Scully and Mulder tipped off about Progressive Inc., who is discounting nonconforming alien frog legs which were refused entry into US, to salvage purchasersSalvage purchasers selling frog legs in interstate commerce at premium pricesFDA wants to seize and condemn shipmentProgressive asserts export exemption as defenseWhat result?US v. 76,552 Pounds of Frog Legs

Banana Wars1980 Bananas big business1993 EU introduce preference for bananas from former colonies (404/93 Regime)Latin America countries protested and negotiations began but not binding1995 WTO established (rulings binding on members)

Bananas Producers

Banana Wars1996 Chiquita, Dole, Del Monte gave $5 Million in contributions to Democrats and RepublicansSame year US rep challenged EU preference for bananas from former EU coloniesBananas from former EU colonies allowed into EU tariff freePreference established as reparations for ills of European colonization of Africa and others

Banana WarsUS alleged this was barrier to free tradeCosting US market $520 million/yearChiquita and Dole accustom to monopoly (term Banana Republic)Caribbean countries started growing pot as opposition to US banana policies

Banana Wars1997 WTO (under US pressure) ruled in favor of USSaid EU preference was violation of international lawChiquitas right to make a profit superseded preference for former EU colonies farmsWTO appellate body upheld decision against the EU

Banana WarsEU responded by establishing a new scheme which tried to get around WTO problems with preference (first come/first serve policy)1999 - US responded by imposing 100% tariff (worth 1 billion dollars to EU markets) on a list of EU exports to USMostly EU luxury items

Banana War TariffsPecorino CheeseSweet biscuits, wafflesBath preparations and saltsCandles Handbags, and plastic coated items normally carried in handbags Greeting cardsCashmere clothesPaper boxes and cartonsCotton bed linenMetal chandeliers and other light fixturesDanish hams

Banana WarsApril 2001 Banana Wars resolvedUS agreed to drop tariffs on EU exportsEU agreed to drop preferenceQuota for bananas from former colonies decreasedQuota for US produced bananas increasedAlmost forced Chiquita into bankruptcyLost 40% of its share of EU market