How does it happen? US customs officials don’t bother to investigate these imports—an 80-year-old exemption written into the US tariff code allows companies to bring goods made with forced labor into the US so long as they can claim a shortage of the item in the US. And since the “consumptive demands” of the US aren’t well defined, almost anything can wiggle through.
“Human rights groups and labor groups don’t even bother petitioning to have a detention order issued for a shipment because they know that customs won’t even investigate if it’s an item like cocoa or shrimp,” John Sifton, a Human Rights Watch official focused on Asia, tells Quartz. “Even if they were to investigate and then detain a shipment, the owner of that shipment could simply file a federal case, saying you know you don’t have a leg to stand on because of this loophole. As a result, [Immigrations and Customs Enforcement] doesn’t do this stuff anymore.”
That could change, as the fast-moving trade debate gave some US lawmakers a chance to close the loophole. While writing legislation that would give US president Barack Obama a guaranteed up-or-down vote on the trade deals he negotiates, senators Ron Wyden and Sherrod Brown included a trade enforcement bill that would, among other things, eliminate the “demand” exemption. All but four of the twenty lawmakers writing the bill voted to include the amendment.
Opposition to the amendment comes—quietly—from business groups, according to legislative aides who support the amendment but aren’t authorized to comment on it publicly, particularly in the confectionary industry. Cocoa imported from African conflict zones has frequently been a target of anti-slavery activists, and despite significant industry investments in stripping forced child labor from supply chains, there is still reason to believe it is common enough to complicate cocoa imports under new rules.
“We do not and have not utilized any provision of the more than 70-year-old customs law to import cocoa,” a spokesman for the National Confectioners Association tells Quartz. “We support efforts that will help end forced labor practices for all merchandise, goods, wares, and commodities imported into the United States.” Human rights activists would point out that these businesses don’t need to actually use the loophole, as a long as it continues to deter enforcement.
If the loophole were removed, activists and customs officials might become more interested in seizing shipments of goods connected to forced labor, and the list of sectors affected by the law could expand. The UN estimates that developed nations like the US gain almost $50 billion from cheaper goods due to forced labor. There have been reports of involuntary work in Chinese factories that supply electronic parts for many electronic devices, and in the mines that supply metals like tungsten and gold that are used in those devices.
While the trade bill cleared a key vote in the Senate, the biggest thing standing in the way of the effort to kill the forced labor exemption is its bedfellows: It is part of a controversial package of trade bills that includes language demanding stronger action from the US to fight currency manipulation by other countries. The White House has opposed this language, arguing that it is dealing with currency manipulation already and doesn’t want to incite a trade war. Republicans in the House may not even take up the enforcement bill if they elect to give the White House trade negotiating authority.
It would be ironic if efforts to protect US workers from competition with low-wage workers around the world didn’t block imports made by the least-paid workers of all.