Preparing Your Business For the Coronavirus

Face maskThe coronavirus is fast becoming a global concern, with the potential to significantly impact supply chains on a global scale. Over the last few days, our Labor & Employment and Intellectual Property & Technology teams have produced a series of blog posts to help you navigate any potential risks to your business:

Coronavirus and Trade – The World Health Organization has the power to make non-binding recommendations as to how countries can successfully contain coronavirus, and this can include advice relating to trade.

Coronavirus and Contractual Penalties – The coronavirus outbreak may result in increased force majeure-related claims under commercial contracts, as well as a further risk of customers seeking to enforce various penalties in connection with supplier failure or delays arising from coronavirus-related issues. We provide a reminder of the UK law in that area, looking at the enforceability of penalties and/or limiting liability, and the difference between a breach and a right.

Coronavirus and Force Majeure – A force majeure provision seeks to exclude the liability of one or more parties for events beyond their reasonable control. The impact of the coronavirus outbreak on global supply chains is likely to bring such provisions into sharp focus. We look at the top 10 issues to be aware of under UK law for anyone seeking to rely on force majeure protection, or who is at the receiving end of a force majeure defense.

Pandemic or Pandemonium? US Employers Brace for the Coronavirus – Despite (at the time of writing) only a few confirmed cases of coronavirus in the US, there is widespread panic – and paranoia – that the virus will spread. As a result, many employers are preparing for the possibly of employee absences. We highlight some of the steps that employers and human resources professionals can implement to avoid employment-related risk to their business.

Travel Ban Updates: Temporary Ban of Foreign Nationals Traveling From Mainland China Per Novel Coronavirus Outbreak; Additional Countries Added To Travel Ban 3.0 – The US, in particular, has effected various measures to circumvent the risk of a coronavirus outbreak, including a travel ban on certain foreign nationals. We provide an update on the fast-moving developments and travel restrictions related to travel to the US.

Federal Focus on Forced Labor in Xinjiang: Supply Chain Risks

There have been longstanding tensions in the Xinjiang province of China between the Chinese government and the Uyghurs, a predominately Muslim ethnic group.  The UN estimates that there are more than 1 million Uyghurs in detention camps, and there are reports of pervasive surveillance, wide-spread forced-labor, and “re-education” programs. 

These human rights abuses present significant risks for companies whose supply chains include products from Xinjiang.  Xinjiang produces the majority of China’s cotton, and cotton from Xinjiang may be mixed with cotton from other regions (or not be labeled as being from Xinjiang).  Because of this, some companies, such as Target Australia, have reported that they will no longer source cotton from China.  Several other products that may be integrated into global supply chains are produced in Xinjiang, including tomato paste and sugar. 

Recent actions at the U.S. federal level reflect serious concerns about the treatment of Uyghurs in Xinjiang, and concerns about the effects of forced labor, in Xinjiang and elsewhere, on global supply chains. 

On October 1, 2019, U.S. Customs and Border Protection (CBP) issued a Withhold Release Order (WRO) for garments produced in Xinjiang by Hetian Taida Apparel Co., which were produced with prison or forced labor.  The CBP issued four other WROs for products mined or produced with forced labor in Malaysia, Democratic Republic of the Congo, Zimbabwe, and Brazil.  The CBP Press Release announcing these WROs may be read here.

On October 17, 2019, the Congressional Executive Commission on China (CECC) held a hearing titled “Forced Labor, Mass Interment, and Social Control in Xinjiang.”  Members of the CECC recognized the human rights abuses occurring in Xinjiang and expressed concerns that U.S. imports are tainted by forced labor.  Representative Thomas Suozzi (D-New York) specifically identified several companies whose products include materials from the region which may be produced by forced labor: Adidas; Campbell Soup; Kraft Heinz; Coca-Cola; Gap, Inc.; H&M; Espirit; Calvin Klein; Tommy Hilfiger; Nike; and Patagonia.  Members of the CECC also expressed their support for the Uyghur Human Rights Policy Act of 2019 (H.R. 649), which would direct U.S. government bodies to report on China’s treatment of the Uyghurs. 

On October 31, 2019, the Co-Chairs of the CECC, Representatives James McGovern (D-Massachusetts) and Marco Rubio (R-Florida), wrote to the Acting Commissioner of the U.S. Customs and Border Protection (CBP), asking CBP “to use its authority under 19 U.S.C. § 1307 to investigate and block imports made with forced labor in the [Xinjiang Uyghur Autonomous Region] from entering the U.S. market and, where appropriate, pursue criminal investigations related to the use of forced labor to produce goods being imported into the United States.”  A copy of that letter may be read here.

On November 4, 2019, Senators Sherrod Brown (D-Ohio), Ron Wyden (D-Oregon), and Richard Blumenthal (D-Connecticut) wrote to Attorney General, Secretary of State, Secretary of the Department of Labor, and the Acting Secretary of the Department of Homeland Security to request information about U.S. government actions “to ensure the federal procurement process is not complicit in human trafficking or forced labor.”  A copy of that letter may be read here.  While the Senators did not specifically name concerns about products from the Xinjiang region in this letter, it further demonstrates that concerns about forced labor in supply chains are receiving consistent attention at the federal level.

U.S. trade law prohibits the importation of goods made, in whole or in part, with forced labor.  Businesses in affected industries should closely scrutinize their supply chains and compliance programs to avoid any supply chain disruptions and establish programs to identify and mitigate forced labor that may exist.  Squire Patton Boggs can assist clients in reviewing their supply chains, and navigating the enforcement of current and potential future WROs.

The Impact of Clean Air Zones

The UK is seeing a significant push on the imposition of Clean Air Zones in its major cities in an effort to tackle emissions levels, NO2 in particular.  Such schemes are designed to incentivize changes in vehicle usage and ownership through the application of daily charges for polluting and ‘non-compliant’ vehicles entering the zone. Many of the planned zones intend to exempt domestic cars from charges, leaving business vehicles of all sizes, private hire vehicles, buses and coaches to be affected. With proposed daily charges and penalties for non-payment, this could be a material cost for businesses with significant fleets of vehicles active in city centers.

There could be significant opportunities for businesses able to take advantage of this schemes. This could range from green-vehicle manufacturers or those able to develop retro-fitting solutions, to green tech solutions providers, to landlords wanting to establish staging posts for electric vehicle exchange on the perimeters of charging zones.

Our forthcoming seminar looks to debate both sides of the issue.

Preparing for Brexit: Deal or No Deal

We are pleased to have partnered with Make UK, the manufacturers’ organisation, to conduct research into the concerns of manufacturers for a no-deal Brexit, and to produce this report calling on the UK government to secure a trade agreement that supports the manufacturing industry.  The report highlights the significance of the manufacturing industry for the UK economy – contributing almost £275 billion annually in EU exports.  Manufactured goods make up close to half of UK exports, of which half leave for countries across the EU and only 18% to countries further afield.

The full report may be read here.

Offshore Wind: Getting Your Supply Chain Right

In recent years, offshore wind costs have tumbled, leading to significant potential growth in the industry.  However, US offshore wind developers setting up their supply chains need to be prepared to navigate a complicated regulatory scheme involving overlapping federal and state laws, and adequately protect themselves with contracts that reflect the unpredictability of building wind turbines in the ocean.  Offshore wind supply chain ventures will also likely face environmental opposition, despite the clean energy moniker.  Our colleagues, Sarah Rathke, Emily Huggins Jones, and Marissa Black, discuss the key issues offshore developers should keep in mind while building their supply chains.  The client alert may be accessed here: Offshore Wind: Getting Your Supply Chain Right.

U.S. Department of Labor Comply Chain App Provides Important Tools for Labor Compliance in Global Supply Chains

As shown in the U.S. Department of Labor (“DOL”) Bureau of International Labor Affairs’ International Child Labor & Forced Labor Reports, the use of child labor, forced labor, and child forced labor remains a tragically persistent concern worldwide.  To help companies understand these risks and work to eliminate child labor and forced labor, the DOL developed the mobile app Comply Chain: Business Tools for Labor Compliance in Global Supply Chains in 2017.  Recent updates to the Comply Chain app include more robust search and bookmark functions and English, Spanish, and French versions. 

The free app, which is available here as a web app and can be downloaded here for iPhone and Android devices, is designed to help businesses develop a social compliance system and mitigate the risks of child and forced labor in global supply chains.  The app provides detailed, practical information about creating and maintaining a social compliance program, broken out into eight steps: (1) Engage Stakeholders and Partners; (2) Assess Risks and Impacts; (3) Develop a Code of Conduct; (4) Communicate and Train Across Your Supply Chain; (5) Monitor Compliance; (6) Remediate Violations; (7) Independent Review; and (8) Report Performance.  For each step, the app includes learning objectives, key terms, topics to explore, and additional resources, as well as detailed case studies of best practices.   

The DOL has also developed the Sweat & Toil mobile app, which allows employers to access comprehensive research about child labor and forced labor, sorted by country and industry.  The Sweat & Toil app can be downloaded for free here for iPhone and Android devices. 

Taken together, these DOL resources provide companies with critical information and a robust set of tools to build effective labor compliance programs for global supply chains.

 

Supply Chain Decision: Online Marketplaces At Risk Due To Federal Court Ruling in Oberdorf v. Amazon.com Inc.

On July 3, the Third Circuit Court of Appeals reversed a lower district court decision and held that Amazon can be liable as a “seller” for defective products sold by third parties on its online marketplace. This holding, if applied broadly, exposes companies that maintain third-party vendor platforms to strict liability lawsuits for defective products – a decided change to the legal supply chain landscape.

In Oberdorf v. Amazon.com Inc., No. 18-1041, 2019 U.S. App. LEXIS 19982 (3d Cir. July 3, 2019), a purchaser of a defective dog leash sued Amazon under strict product liability and negligence theories. The retractable dog leash – purchased from a third party vendor on Amazon’s online marketplace – allegedly permanently blinded the plaintiff when it broke and recoiled. The Middle District of Pennsylvania found that Amazon was not a “seller” under Pennsylvania law, and therefore was not liable. On appeal, however, the Third Circuit vacated and remanded the district court decision. The Third Circuit found that Amazon was a “seller” of the product, despite Amazon’s argument that “it merely provides an online marketplace for products sold by third-party vendors.”

The Court weighed four factors articulated in a previous Pennsylvania decision, Musser v. Vilsmeier Auction Co, Inc., 562 A.2d 279 (Pa. 1989). First, the Court concluded that Amazon was the “only member of the marketing chain available to the injured plaintiff for redress.” The plaintiff was unable to locate the vendor. However, the Court also noted that Amazon enters into agreements with its vendors that restrict them from communicating with customers on any other platform. The Court determined that “this enables third-party vendors to conceal themselves from the customer.” Second, the Court held that imposition of strict liability upon Amazon would incentivize safety because Amazon “is fully capable, in its sole discretion, of removing unsafe products from its website” by virtue of its vendor agreements. Next, the Court determined Amazon was “in a better position than the consumer to prevent the circulation of defective products” because Amazon receives customer feedback regarding defective products while contractually limiting vendors’ direct channels of communication with customers. Finally, the Third Circuit found that Amazon already distributes the cost of compensating for injuries through indemnification provisions in its vendor agreements.

Although Oberdorf v. Amazon.com Inc. was decided under Pennsylvania’s strict product liability laws, its holding is likely broader – Pennsylvania adheres to the Second Restatement of Torts, as do other states. The Court’s decision was largely influenced by terms in Amazon’s vendor agreements. In light of this, other online marketplaces should evaluate their own vendor agreements and consider the restrictions they place on direct communication between vendors and customers. Moreover, online marketplaces should develop vetting processes to determine if third-party vendors are in good standing and amenable to the legal process. The Court’s decision, however, has unavoidable implications for online marketplaces. Other online third-party vendor platforms similarly operate under Amazon’s model and exert substantial control over vendors, or have vendor agreements with similar provisions. As the Court pointed out, online marketplaces may have to increase the commissions they charge vendors to accommodate increased product liability exposure, or may have to change their insurance coverage. Thus, the Court’s decision changes supply chain risk allocation in this important area.

 

UK Food Labelling & Food Allergen Workshops

The UK Environment Secretary Michael Gove announced on June 25, 2019 that food labeling laws will be changed to introduce full ingredient labelling (including allergens) for foods which are packed for direct sale.  The new requirements will come fully into force in 2021.  Our colleague Nicola Smith prepared an article last August which details the options the UK government was considering and the background to the current proposals, including the categories of products the law intends to cover.  That article may be read here.

A series of Allergies Awareness in Foodservice workshops are scheduled from July to October that will cover the impacts of the new full ingredient labelling law, as well as addressing how food safety law and supply chain awareness are critical to allergen awareness.  These workshops are designed to provide the practical legal knowledge necessary to protect your business and customers.  You can learn more about the workshops, and register to attend, at Food Matters Training.

 

The International Comparative Legal Guide to Product Liability 2019: Product Liability in Asia

Developments in product liability regimes around the world should be of interest to any company with a global supply chain.  In particular, as companies continue to source ever more materials from Asia, it is important to be aware of the product liability legal landscape in those countries.  Our colleagues, David Goh and Bindu Janardhanan, have written a chapter on product liability in Asia for the International Comparative Legal Guide’s Product Liability 2019.  The chapter, which provides a concise summary of the current state of product liability law in Asia, may be read here.

Bipartisan Bill Proposes Development of U.S. Electric Vehicle Supply Chain Policy

A bipartisan bill, introduced in the Senate on May 2, seeks to reduce the United States’ dependence on Assembly Lineforeign minerals and develop a national electric vehicle supply chain policy. The American Minerals Security Act (S. 1317), which embraces part of a 2017 executive order by President Trump, would “facilitate the availability, development, and environmentally responsible production of domestic resources to meet national material or critical mineral needs[.]” The Act would require identification of critical minerals that are essential to the economic and national security of the U.S. and vulnerable to supply chain disruptions. Further, the Act would require a nationwide assessment of the reserves of these critical mineral reserves. Perhaps most importantly, the Act would also create a more efficient process to obtain a permit for mining of critical minerals used in electric vehicle production.

The U.S. lags significantly behind China in the production of electric vehicle batteries, as the U.S. is heavily dependent on foreign processed minerals. According to the U.S. Geological Survey, the U.S. is reliant on other countries for at least 50 percent of its supply of 48 minerals, and 100 percent of its supply of 18 minerals. Some of these minerals are domestically available, but underutilized. The U.S. has 13 percent of the world’s lithium reserves but last year the U.S. produced only 2 percent of the global lithium supply. Senator Murkowski (R-Alaska), a sponsor of the Act and chair of the Senate Energy and Natural Resources Committee stated, “[t]his is our Achilles’ heel that serves to empower and enrich other nations, while costing us jobs and international competitiveness.” Indeed, of the $300 billion automakers are expected to spend in the electric vehicle sector over the next decade, the U.S. is positioned to receive $34 billion while China is projected to receive over $146 billion. The Act is a step towards addressing this disparity and strengthening the United States’ position in the electric vehicle supply chain.

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