The new US forced labor law should heighten scrutiny of company supply chains that are linked to forced labor in China, Human Rights Watch said today in a submission to the federal Forced Labor Enforcement Task Force (FLETF). The law should also result in increased civil and criminal penalties for companies that import products linked to forced labor.
The Uyghur Forced Labor Prevention Act (UFLPA), signed into law by President Joe Biden in December 2021, creates a presumption that goods made in whole or in part in China’s northwest Xinjiang region, or produced by entities in China linked to forced labor, cannot be imported into the United States. Since 2017, China has detained as many as one million Uyghurs and other Turkic Muslims in Xinjiang and subjected them to various abuses that amount to crimes against humanity, including subjecting detainees and other Turkic Muslims to forced labor inside and outside Xinjiang.
“The US government has a powerful new tool to ensure that companies are not complicit in forced labor, but enforcement is everything,” said Jim Wormington, senior business and human rights researcher at Human Rights Watch. “The government should require importers to disclose their supply chains to identify links to Xinjiang or other forced labor sites, and should hold companies accountable where they or their suppliers continue to exploit forced labor.”
The multiagency taskforce chaired by the Department of Homeland Security on January 24, 2022, requested input into the strategy the US government should use to enforce the new forced labor law. The law builds on existing US legislation, the 1930 Tariff Act, which banned the import of “all goods, wares, articles, and merchandise mined, produced, or manufactured wholly or in part” by forced labor. Since 2019, US Customs and Border Protection (CBP) has issued a dozen orders requiring the seizure of certain categories of products from Xinjiang, including a January 2021 order covering all cotton and tomato products produced in whole or in part from Xinjiang.
The new law goes further by requiring customs officers to apply a requirement, scheduled to go into effect on June 21, that presumes that any goods “mined, produced, or manufactured wholly or in part” in Xinjiang are produced with forced labor and so prohibited from entry to the US. The presumption also applies to goods produced by entities – whether in Xinjiang or elsewhere in China – that the US government lists as linked to forced labor.
The new law states that companies can rebut the presumption against imports by providing “clear and convincing evidence” that goods are not linked to forced labor. However, the extent of Chinese government surveillance and threats to workers and auditors in Xinjiang currently make it impossible for companies to provide credible evidence that they or their suppliers in the region are free of forced labor. Even elsewhere in China, the arrests of labor activists, a prohibition on independent trade unions, government surveillance, and the Chinese government’s anti-sanctions laws pose serious obstacles to identifying and remediating the risk of forced labor and other human rights abuses.
In its submission to the task force, Human Rights Watch underscored that the most effective way to identify Xinjiang-linked goods would be to require all brands and retailers importing into the US to map their global supply chains, from raw materials to manufacturers, and disclose them in a time-bound manner. The task force should consider whether imposing this requirement is possible using existing executive powers and, if not, should recommend new legislation requiring mandatory supply chain mapping and disclosure and comprehensive human rights due diligence.
Customs and Border Protection’s own efforts to identify products from Xinjiang or from entities linked to forced labor should focus on high-risk sectors, including the priority sectors (cotton, tomatoes, and polysilicon) identified in the new law itself. Customs officers should identify which importers in high-priority sectors are at highest risk of forced labor links and should request information from those companies on their supply chains and their efforts to identify and address forced labor. If targeted importers fail to respond to questions, or provide inadequate information, Customs and Border Protection should view this as evidence that the products include material from Xinjiang or from entities linked to forced labor and are barred from import under the new law.
To demonstrate that it is effectively enforcing forced labor import bans, Customs and Border Protection should be transparent about its enforcement actions. It should disclose when it holds, re-exports, excludes, or seizes goods, including information on the company importing the banned goods; the nature of the goods; their approximate value; and the reason for the enforcement action. The US government should also impose financial penalties on companies for importing or attempting to import goods linked to forced labor and utilize laws such as the Trafficking Victims Protection Act to criminally prosecute individuals and corporations for their roles in imports linked for forced labor.
“US importers should no longer be able to plead ignorance over their links to forced labor in China and the Xinjiang region specifically,” said Sophie Richardson, China director at Human Rights Watch. “Companies with operations, suppliers, or sub-suppliers in Xinjiang should quickly exit the region or risk seeing their goods seized at the US border and their businesses subject to civil and criminal penalties.”