Bill Introduced to Require Foreign Mfrs of Certain Products to Have U.S. Registered Agents
On December 5, 2011, Senator Whitehouse (D-RI) and 9 co-sponsors1 introduced the Foreign Manufacturers Legal Accountability Act (S. 1946) which would require foreign manufacturers of certain products imported into the U.S. to establish registered agents in the U.S. who are authorized to accept service of process against such manufacturers. S. 1946 has been referred to the Senate Finance Committee.
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According to Senator Whitehouse’s remarks upon introduction of S. 1946, the bill would:
- require the heads of Federal Government agencies, such as the Food and Drug Administration, to pass regulations requiring that foreign manufacturers of products regulated by their agencies register an agent who will accept service of process2;
- allow regulators to exclude manufacturers who only import a minimal amount of products into the U.S. from the requirements;
- allow the manufacturer to choose any location for that agent with a substantial connection to the importation, distribution, or sale of their products;
- cover major product categories including consumer goods, drugs, cosmetics, and chemicals; and
- require relevant agencies to study workable approaches to ensure that foreign food producers also are brought within the ambit of the U.S. legal system.
2009/2010 Bills Faced Opposition from Trade, Failed to Pass
"Registered agent" bills were introduced in both the House and Senate in 2009/2010. Both the House and Senate 2009/2010 bills (H.R. 4678 and S. 1606) faced opposition from the trade community.
The trade community’s arguments against the 2009/2010 legislation included:
- U.S. exporters could become targets for similar provisions,
- foreign manufacturers would not really be held accountable as a foreign court is unlikely to enforce a U.S. court judgment against a foreign manufacturer, and
- CBP, CPSC, and FDA already have seizure, detention powers.
Neither H.R. 4678 nor S. 1606 was passed in 2009/2010. However, attempts were made to attach S. 1606 to unrelated legislation.
1Senators Bennet (D-CO), Durbin (D-IL), Feinstein (D-CA), Graham (R-SC), Leahy (D-VT), McCaskill (D-MO), Nelson (D-FL), Pryor (D-AR), and Sessions (R-AL).
2Note that the Food Safety Modernization Act (FSMA), which became law on January 4, 2011, includes different definitions of “importer” for two separate programs it requires FDA to establish. For one of these, the Foreign Supplier Verification Program, the FSMA defines importer as the U.S. owner or consignee of the article of food at the time of entry of such article into the U.S., or if there is no U.S. owner or consignee, the U.S. agent or representative of a foreign owner or consignee of the article of food at the time of entry of such article into the U.S. (suggesting that entities like brokers could be responsible for verifying foreign suppliers). The inclusion of U.S. agent in this definition and the fact that another FSMA program has a completely different definition of importer has caused controversy and concern. (See ITT’s Online Archives [11092305] and 11051730 for summaries.)
(See ITT’s Online Archives, 09090215 for summary of S. 1606, the 2009 Senate bill.
See ITT’s Online Archives 10100612 for summary of trade concerns about 2009/2010 House and Senate bills.
See ITT’s Online Archives 10062541 for summary of NCBFAA concerns with H.R. 4678, the 2010 House bill