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The Importation

and Exportation
of Foods
Food Law
FSC-421

Importat
ion
FDA and US Customs share jurisdiction
over imported food products

Foods may be imported into the


US so long as they meet the
same standards as foods
produced in US.

USDA Jurisdiction over imported meat


products

Pursuant to 1906 Meat Inspection Act

US Customs Service

Sub unit of the US Department of the


Treasury
Charged with assessing duties, fees,
etc
Required to notify the FDA of the entry
of any food products into the US
Non-conforming food shipments will be
seized by Customs and released only
after written approval from FDA.

Registration

Food products which are imported


into the United States are require
to meet all applicable requirements
at the time of importation
Must be conforming at the time
they are offered for entry into the
US
Not adulterated or misbranded

Importat
ion

Certain types of foods must comply


with registration requirements:
Specified dairy products (acidified
milks, yogurts, cultured products
Low acid foods
Acidified foods
Meat processing facilities

Must be manufactured according


to specific processes

Entry and
Sampling

Shipment must be filed with


Customs within 5 days
Customs notifies FDA if food
product
Notice to proceed or, Notice of
Sampling
Registered foods almost certain to
be sampled

Entry and
Sampling

Notice of Detention if
nonconforming
Notice of Refusal if
nonconforming after sampling
Shipment destroyed unless
exported within specified time

Importers Options if
Refused

Request hearing, within 10 days, to


defend acceptability
Permission to re-label or re-condition
(IBP)
Export shipment
Request judicial review of Notice of
Refusal

Enforceme
nt

FDA may order destruction of


nonconforming goods if not
reconditioned
FDA may declare a bond violation if
shipment distributed without Notice of
Acceptance
FDA may order seizure and
condemnation of nonconforming goods

Export
Option

Shipper has option after FDA


condemnation of exporting the
nonconforming goods as alternative to
destruction if:
Adulteration (or misbranding) did not occur
after importation
Importer had no knowledge of the
nonconformity
Shipment is not otherwise in violation of
US law

Exportatio
n

Goods intended for export need not


meet FDA requirements if:
Products meets specs of importing
country
Not in conflict with laws of importing
country
Labeling of shipment clearly indicates
that it is for export

Export Exemption

Export
Exemption

Is US less concerned with safety of


products intended for export?
Exempts exports from jurisdiction of
FDA?
Distribution into interstate commerce,
nullifies the exemption
Referred to as the commodity
dumping provision (Thalidimide, DES,
Cyclamates)

Export
Exemption

How does exporter prove


shipment complies with
exemption requirements?
Export Certificate issued by
Official in importing country

Exampl
es
Exporter 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. 425

Importer has options of reconditioning 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
purchasers
Salvage purchasers selling frog legs in
interstate commerce at premium prices
FDA wants to seize and condemn shipment
Progressive asserts export exemption as
defense
What result?
US v. 76,552 Pounds of Frog Legs

Banana Wars

1980 Bananas big business


1993 EU introduce preference for
bananas from former colonies (404/93
Regime)
Latin America countries protested and
negotiations began but not binding
1995 WTO established (rulings
binding on members)

Bananas
Producers

Banana Wars

1996 Chiquita, Dole, Del Monte gave $5


Million in contributions to Democrats and
Republicans
Same year US rep challenged EU preference
for bananas from former EU colonies
Bananas from former EU colonies allowed
into EU tariff free

Preference established as reparations


for ills of European colonization of Africa
and others

Banana Wars
US alleged this was barrier to free
trade
Costing US market $520 million/year
Chiquita and Dole accustom to
monopoly (term Banana Republic)
Caribbean countries started growing
pot as opposition to US banana
policies

Banana Wars

1997 WTO (under US pressure) ruled


in favor of US
Said EU preference was violation of
international law
Chiquitas right to make a profit
superseded preference for former
EU colonies farms
WTO appellate body upheld decision
against the EU

Banana Wars

EU 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
US
Mostly EU luxury items

Banana War Tariffs

Pecorino Cheese
Sweet biscuits,
waffles
Bath preparations
and salts
Candles
Handbags, and
plastic coated items
normally carried in
handbags

Greeting cards
Cashmere clothes
Paper boxes and
cartons
Cotton bed linen
Metal chandeliers
and other light
fixtures
Danish hams

Banana Wars

April 2001 Banana Wars resolved


US agreed to drop tariffs on EU exports
EU agreed to drop preference
Quota for bananas from former colonies
decreased
Quota for US produced bananas
increased
Almost forced Chiquita into bankruptcy
Lost 40% of its share of EU market