NOTE WHERE WAS THIS T-SHIRT MADE? Miguel Angel Bacigalupe In March 2021, Biden’s administration formally declared China’s treatment of Uyghur Muslims a genocide in its annual human rights report published by the Department of State. It is difficult not to conclude that these findings may have also been influenced by the rare bipartisan criticisms aimed at China’s human rights record over the last few years. This bipartisan condemnation of the Chinese government seems to have paid off as President Joseph R. Biden signed into law the Uyghur Forced Labor Prevention Act (UFLPA) on December 23, 2021. This legislation prohibits the importation of goods produced with forced labor in China as it directs US Customs and Border Protection (CBP) to apply a rebuttable presumption that “any goods, wares, articles, and merchandise mined, produced, or manufactured wholly or in part in the Xinjiang Uyghur Autonomous Region of the People’s Republic of China” have been made with forced labor. This Note argues that given the UFLPA’s overbroad economic implications and lack of clear enforcement mechanisms, the legislation is neither an effective nor a realistic way of holding American companies, seeking to import products from China, accountable in the long term.  J.D. 2022, Columbia Law School; M.A. 2011, Stanford University; B.A. 2008, University of Virginia. Many thanks to Professor Mark Barenberg for helping me develop this topic and providing valuable insights. Additional thanks to Gabriella Argueta-Cevallos and Long Dang, my dear friends for their feedback and support throughout the Note-writing process. I would also like to thank the entire editorial board and staff of the Columbia Business Law Review for their dedication in preparing this Note for publication. Finally, thank you to my beloved mother, Flor de Maria, my sister Flor, my brother-in-law Cesar, and my nieces for their unwavering love and support throughout my law school journey. No. 3:1438] WHERE WAS THIS T-SHIRT MADE? 1439 I. Introduction ...................................................................... 1439 II. Legislation Affecting Uyghurs ...................................... 1450 A. Section 307 of the Tariff Act of 1930 ................... 1455 B. House Version of the UFLPA—H.R. 1155 .......... 1458 C. Senate Version of the UFLPA—S. 65 ................. 1465 D. Passed Version of the UFLPA —H.R. 6256 ........ 1466 III. Industry Response to the Proposed Legislation ......... 1468 A. Sweeping Ban on All Cotton Products from Xinjiang .............................................................................. 1470 B. Issues with Enforceability.................................... 1473 IV. Proposed Solutions ........................................................ 1477 A. Tracing Technologies ............................................ 1478 V. Conclusion ....................................................................... 1483 I. INTRODUCTION Look through your wardrobe and check the labels on any of your t-shirts, socks, or pairs of pants. It is likely that many of these articles were made in China—the largest exporter of clothing textiles to the United States.1 According to the National Bureau of Statistics of China, the Xinjiang Uyghur Autonomous Region (the “XUAR” or “Xinjiang”) was the source of approximately eighty-five percent of China’s cotton in 2019—producing approximately five million of the country’s reported total of 5.89 million tons.2 Moreover, some 1 Scott Simon, Opinion, Why You Should Think About Uighurs the Next Time You Put on Shoes, NAT’L PUB. RADIO (Nov. 23, 2019, 7:54 AM), https://www.npr.org/2019/11/23/782195481/opinion-why-you-should-think- about-uighurs-next-time-you-put-shoes-on [https://perma.cc/QNK4-FX2Z]. 2 Press Release, Nat’l Bureau of Stat. of China, Bulletin on the Nat’l Cotton Output in 2019 (Dec. 17, 2019), http://www.stats.gov.cn/english/PressRelease/201912/t20191218_1718288. html [https://perma.cc/9XN2-C6JS]; see also LUKE ADAMS ET AL., CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA, GLOBAL SUPPLY CHAINS, FORCED LABOR, AND THE XINJIANG UYGHUR AUTONOMOUS REGION 5 (2020), https://www.cecc.gov/sites/chinacommission.house.gov/files/documents/CE CC%20Staff%20Report%20March%202020%20%20Global%20Supply%20C hains%2C%20Forced%20Labor%2C%20and%20the%20Xinjiang%20Uyghu r%20Autonomous%20Region.pdf [https://perma.cc/N8K3-8MG9] (noting that in 2018, the President of the China National Textile and Apparel 1440 COLUMBIA BUSINESS LAW REVIEW [Vol. 2021] estimates indicate Xinjiang produces roughly twenty percent of all cotton consumed in the world, much of which is produced on Xinjiang Production and Construction Corps, also known as Bingtuan farms.3 Approximately twice the size of Texas, Xinjiang has abundant land and sunshine, making it fertile ground for cotton.4 The significance of Xinjiang’s cotton production to the global fashion industry’s vested commercial, financial, and manufacturing interests cannot be overstated.5 Council stated that Xinjiang planned to increase the textile and garment workforce by 100,000); Austin Ramzy, U.S. Lawmakers Propose Tough Limits on Imports from Xinjiang, N.Y. TIMES (Mar. 11, 2020), https://www.nytimes.com/2020/03/11/world/asia/xinjiang-china-labor- bill.html [https://perma.cc/X4P9-RCLV] (Xinjiang increased its textile and garment workforce by over 80,000 by recruiting workers from impoverished households whose training could spur the development of the textile and apparel industry in the region). 3 David Lawder, Apparel Group Says Broad Ban on China’s Xinjiang Cotton Impossible to Enforce, REUTERS (Sept. 17, 2020, 11:27 PM), https://www.reuters.com/article/usa-trade-china-xinjiang/apparel-group- says-broad-ban-on-chinas-xinjiang-cotton-impossible-to-enforce- idUSKBN2690EK [https://perma.cc/EN3Z-YW55]; see also Chao Deng & Eva Dou, Western Companies Get Tangled in China’s Muslim Clampdown: Kraft Heinz, Adidas and Gap Are Among the Companies Whose Supply Chains Run Through Xinjiang, WALL ST. J. (May 16, 2019, 10:37 AM), https://www.wsj.com/articles/western-companies-get-tangled-in-chinas- muslim-clampdown-11558017472 [https://perma.cc/A6KA-Y5HB] (noting that major Chinese garment manufacturers have been incentivized by authorities to move their production to the XUAR through tax exemptions and subsidies for electricity, land, and work training costs); JAMES MILLWARD & DAHLIA PETERSON, BROOKINGS INSTITUTION, CHINA’S SYSTEM OF OPPRESSION IN XINJIANG: HOW IT DEVELOPED AND HOW TO CURB IT 7 (2020), https://www.brookings.edu/wp- content/uploads/2020/09/FP_20200914_china_oppression_xinjiang_millwar d_peterson.pdf [https://perma.cc/R4AT-Q5ZZ] (“Xinjiang produces between a fifth and a quarter of the world’s cotton, depending on the year, much of it on Bingtuan farms.”). 4 Peter S. Goodman, Vivian Wang, & Elizabeth Paton, Global Brands Find It Hard To Untangle Themselves from Xinjiang Cotton, N.Y. TIMES (Apr. 6, 2021), https://www.nytimes.com/2021/04/06/business/xinjiang- china-cotton-brands.html [https://perma.cc/5VL4-SFKT]. 5 See Evan Clark, Fashion’s Cry for Help on Forced Labor in China, WOMEN’S WEAR DAILY (July 27, 2020, 12:01 AM), https://wwd.com/business- No. 3:1438] WHERE WAS THIS T-SHIRT MADE? 1441 Approximately thirty-three percent of U.S. apparel imports come from China.6 The United States imported about eleven billion dollars in apparel products and cotton textiles from China in 2019.7 If other types of imports are included, such as car parts, high-tech products, mechanical electrical parts, or even tomato sauce, the value of U.S. imports from Xinjiang approaches twenty billion dollars.8 Renowned brands such as Abercrombie & Fitch, Calvin Klein, Carter’s, Gap, Nike, L.L.Bean, Polo Ralph Lauren, Tommy Hilfiger, and Victoria’s Secret are among the major American fashion retail enterprises that have factories, supply factories, or use subcontractors throughout Xinjiang.9 This may be due to the fact that China has long courted foreign companies with the promise of low-wage workers who operate free from the intrusions of unions and other costly labor protections.10 news/government-trade/fashion-cry-for-help-forced-labor-china-uyghurs- 1203687394 [https://perma.cc/3Z3P-2UQU]. 6 AMY K. LEHR & MARIEFAYE BECHRAKIS, CTR. FOR STRATEGIC & INT’L STUD., CONNECTING THE DOTS IN XINJIANG FORCED LABOR, FORCED ASSIMILATION, AND WESTERN SUPPLY CHAINS 4, (2019), https://www.csis.org/analysis/connecting-dots-xinjiang-forced-labor-forced- assimilation-and-western-supply-chains [https://perma.cc/3EVF-9TSQ]. 7 US Bans Cotton Imports from China Producer, Citing ‘Slave Labour,’ AL JAZEERA (Dec. 3, 2020), https://www.aljazeera.com/economy/2020/12/3/us-bans-cotton-imports- from-china-producer-citing-slave-labour [https://perma.cc/H67K-L5KJ]. 8 Lora Cecere, Preventing Uyghur Slave Labor Products Under the Tree. Maybe Next Year, FORBES (Dec. 14, 2020, 2:00 PM), https://www.forbes.com/sites/loracecere/2020/12/14/preventing-uyghur- slave-labor-products-under-the-tree-maybe-next-year/?sh=65cae19366f2 [https://perma.cc/9NTE-AM5T]. 9 See, e.g., VICKY XIUZHONG XU ET AL., AUSTRALIAN STRATEGIC POL’Y INST., REPORT NO. 26/2020, UYGHURS FOR SALE: ‘RE-EDUCATION,’ FORCED LABOUR AND SURVEILLANCE BEYOND XINJIANG 5, (2020), https://www.aspi.org.au/report/uyghurs-sale [https://perma.cc/RUH6-DR]; Ana Swanson, Nike and Coca-Cola Lobby Against Xinjiang Forced Labor Bill, N.Y. TIMES (Nov 29, 2020), https://www.nytimes.com/2020/11/29/business/economy/nike-coca-cola- xinjiang-forced-labor-bill.html [https://perma.cc/U3U5-VDVR] (listing American multinational companies with operations in Xinjiang, such as Campbell Soup Company, Coca-Cola, and Costco among others). 10 See Goodman et al., supra note 4. 1442 COLUMBIA BUSINESS LAW REVIEW [Vol. 2021] Unfortunately, since 2017, more than one million Uyghurs and other Turkic Muslim minorities have reportedly disappeared into a network of “re-education” camps in Xinjiang.11 Government documents and interviews with former detainees show that forced labor has become an integral part of the efforts by the Chinese government to “re- educate” these ethnic minorities in order to “cleans[e them] of their extremist thoughts through not only ‘reeducation,’ but also work.”12 As recent as December 2020, the BBC and the Center for Global Policy, a non-profit foreign policy research and advocacy think tank headquartered in Washington D.C., reported that at least a half-million Uyghurs were being put to work in cotton fields.13 Unlike their Han majority counterparts, Uyghur factor workers are often forced to live in dormitories, which are surrounded by iron gates and surveilled by security cameras.14 The Chinese government has also facilitated the mass transfer of Uyghurs from 11 See XU ET AL., supra note 9, at 4; see also LEHR & BECHRAKIS, supra note 6, at 2 (stating that the Chinese governmental effort derives from the belief that state-imposed education and labor will integrate these minorities into the mainstream Han Chinese society by detaching them from their culture and religion and strengthening their loyalty to the Communist Party). 12 See LEHR & BECHRAKIS, supra note 6, at 2; see also Mu Xuequan, China Focus: Xinjiang Determined in Counter-Terrorism, Deradicalization, Maintaining Development, XINHUA NET (Dec. 10, 2019, 9:12 AM), http://www.xinhuanet.com/english/2019-12/10/c_138618363.htm [https://perma.cc/3PRW-YVD8] (stating that in a December 2019 press conference held by the State Council Information Office in Beijing, Xu Hairong, the Party Chief of Ürümqi, the capital of the XUAR, proudly declared that “people of all ethnic groups in Xinjiang have truly felt that without the education and training, the current peaceful days would not be possible”). 13 ADRIAN ZENZ, CTR. FOR GLOB. POL’Y, COERCIVE LABOR IN XINJIANG: LABOR TRANSFER AND THE MOBILIZATION OF ETHNIC MINORITIES TO PICK COTTON 3 (2020), https://newlinesinstitute.org/wp- content/uploads/20201214-PB-China-Cotton-NISAP-2.pdf [https://perma.cc/A8AR-FVXV]. 14 Against Their Will: The Situation in Xinjiang, U.S. DEP’T OF LAB., BUREAU OF INT’L LAB. AFFAIRS (last visited Sept. 20, 2021), https://www.dol.gov/agencies/ilab/against-their-will-the-situation-in- xinjiang [https://perma.cc/4FZT-NA9Q]. No. 3:1438] WHERE WAS THIS T-SHIRT MADE? 1443 Xinjiang to work in factories throughout China.15 In many instances, the Communist government has seized the houses and farmland left behind by the transferred Uyghurs, which in turn has encouraged the majority Han Chinese to move in.16 The situation in Xinjiang has spurred worldwide activism calling on the Chinese government to stop these abuses against the Uyghur peoples.17 After years of this humanitarian crisis, the United States reacted by unveiling several pieces of legislation. The first was the Uyghur Human Rights Policy Act (UHRPA) that President Trump signed into law on June 17, 2020.18 The UHRPA, which is the first of its kind to promote the rights of Uyghurs and other Muslims in China facing systematic religious persecution,19 authorizes the use of targeted sanctions such as asset blocking, impositions of economic penalties, and visa restrictions against Chinese government officials deemed complicit in the 15 XU ET AL., supra note 9, at 3. 16 The Uyghur Genocide Hits California, L.A. TIMES (May 4, 2021, 8:00 AM), https://www.latimes.com/podcasts/story/2021-05-04/the-times- podcast-uyghurs-genocide-california [https://perma.cc/7B3M-QEMR]. 17 See Shant Shahrigian, Models, Uighur Activists Protests Outside Studio at Start of New York Fashion Week, N.Y. DAILY NEWS (Sept. 13, 2020), https://www.nydailynews.com/news/politics/ny-new-york-fashion-week- uighur-20200913-j7q66wv5ondkjflaxqvfexbv6e-story.html [https://perma.cc/5F2L-JGBQ] (providing one of many examples of citizens around the world protesting the situation in Xinjiang); see also Ellen Halliday, Uighurs Can’t Escape Chinese Repression, Even in Europe, ATLANTIC (Aug. 20, 2019), https://www.theatlantic.com/international/archive/2019/08/china- threatens-uighurs-europe/596347/ [https://perma.cc/4NJX-9WKA] (providing another example of a Finnish citizen of Uyghur descent “set[ting] off on a ‘Freedom Tour’ around Europe to raise awareness of the detention of Uyghurs, including his own parents”). 18 Uyghur Human Rights Policy Act of 2020, Pub. L. No. 116-145, 134 Stat. 648 (codified at 22 U.S.C. § 6901); S. 3744, 116th Cong. (2020) (passing the Senate by unanimous consent and the House by a 413-1 margin). 19 Nury Turkel, The U.S. Must Use the New Uyghur Human Rights Policy Act To Sanction Chinese Officials for Religious Persecution, TIME (Jun. 8, 2020, 5:59 AM), https://time.com/5847184/uyghur-human-rights- policy-act-china/ [https://perma.cc/L3NM-85KQ]. 1444 COLUMBIA BUSINESS LAW REVIEW [Vol. 2021] persecution of Uyghurs and other Muslim minority groups.20 The UHRPA, however, only focuses on Chinese state actors or foreign actors who are directly or indirectly responsible for the human right abuses against the Uyghur people and falls short of holding any other actors accountable. Although the co- founder of the Uyghur Human Rights Project, an independent nonprofit organization, and Commissioner on the United States Commission on International Religious Freedom, Nury Turkel, cheered the passage of this legislation, he urged Congress to pass a second bill—House Bill 6210, the Uyghur Forced Labor Prevention Act (UFLPA).21 On September 22, 2020, in the 116th Congress, the U.S. House of Representatives passed its version of the UFLPA by an overwhelming 406-3 majority.22 Fashion retailers were specifically concerned about section 423 and section 524 of the 20 Uyghur Human Rights Policy Act of 2020 § 6(c), 22 U.S.C § 6901 (2018) (notes). 21 See Turkel, supra note 19; H.R. 6210, 116th Cong. (2020) (roll call 196). 22 H.R. 6210; Juliegrace Brufke, House Passes Legislation To Crack Down on Business with Companies that Utilize China’s Forced Labor, HILL (Sept. 22, 2020. 5:32 PM), https://thehill.com/homenews/house/517656- house-passes-legislation-to-crack-down-on-business-with-companies-that- utilize [https://perma.cc/95ZN-D7MX]. 23 H.R. 6210, § 4(a) (mandating that all articles, goods, and merchandise produced, or manufactured wholly or in part in Xinjiang, or by persons working with the government of Xinjiang for purposes of the poverty alleviation or pairing-assistance programs shall be deemed to be articles, goods, wares, and merchandise described in section 307 of the Tariff Act of 1930 and not entitled to entry at any U.S. port unless the Commissioner of the CBP determines, by clear and convincing evidence, that any of aforementioned specific goods, wares, articles, or merchandise were not produced wholly or in part by convict, forced, or indentured labor under penal sanctions; and submits and makes available to the public a report containing such determination to the appropriate congressional committees). See infra Part I for discussion of how the retail industry would be affected by section 4. 24 H.R. 6210, § 5(a) (mandating that a Forced Labor Enforcement Task Force submit to the appropriate congressional committees a report containing the U.S. Government’s specific enforcement plans regarding any imported goods or merchandise from China and third countries, if they have been mined, produced, or manufactured in part in the XUAR or by persons No. 3:1438] WHERE WAS THIS T-SHIRT MADE? 1445 House bill. Section 4 requires any corporation wanting to import goods from Xinjiang to demonstrate, through clear and convincing evidence,25 that there was no forced labor involved in any of their supply chains.26 Section 5 specifies the enforcement strategy against corporations found to be in violation of the UFLPA.27 The Senate approved its version of legislation by unanimous consent during the 117th Session of Congress.28 The House voted to pass its updated version of the legislation (“House Bill 1155”) during the 117th Session of Congress on December 8, 2021 by a vote of 428-1.29 On December 14, 2021, H.R. 6256 titled “To ensure that goods made with forced labor in the Xinjiang Uyghur Autonomous Region of the People’s Republic of China do not enter the United States market, and for other purposes” was introduced and passed the House.30 A couple of days later, H.R. 6256 passed in the Senate without amendment by unanimous consent.31 On December 20, 2021, the bill was formally working with the XUAR government for purposes of either the “poverty alleviation” or “pairing-assistance” programs). See infra Part I for discussion of how the retail industry would be affected by section 5. 25 H.R. 6210, § 4(b)(1); See Colorado v. New Mexico, 467 U.S. 310, 316 (1984) (holding that the evidence under the clear and convincing standard has to be highly probable and “instantly tilt the evidentiary scares”). 26 Press Release, Cong.-Exec. Comm. on China, Xinjiang: Chairs Release New Legislation & Report on Global Supply Chains and Forced Labor, (Mar. 11, 2020), https://www.cecc.gov/media-center/press- releases/cecc-chairs-release-new-legislation-report-on-global-supply- chains-and [https://perma.cc/8T5S-DQTY]. 27 See H.R. 6210, § 5. 28 S. 65, 117th Cong. (2021); 167 CONG. REC. S4908 (daily ed. July 14, 2021). 29 See H.R. 1155, 117th Cong. (2021); see also Ellie Kaufman, House Passes Bill Blocking Imports of Products Produced by Forced Labor in China’s Xinjiang Region, CNN (Dec. 8, 2021), https://www.cnn.com/2021/12/08/politics/house-bill-forced-labor-uyghurs- china/index.html [https://perma.cc/43JX-H7NZ] (noting the House’s passage of the legislation). The 116th Congress’ version of the House bill, H.R. 6210 is substantively similar to the 117th Congress’ version, H.R. 1155. Because it is currently the 117th Congress, this Note will refer to the House bill as “House Bill 1155.” 30 167 CONG. REC. H7808 (daily ed. Dec. 14, 2021). 31 167 CONG. REC. S9231 (daily ed. Dec. 16, 2021). 1446 COLUMBIA BUSINESS LAW REVIEW [Vol. 2021] presented to President Joe Biden and signed the next day, now known as PL 117-78.32 Despite the Trump Administration’s constant alienation of allies and general disdain for international institutions and their mandates, human rights abuses in China have comprised one of the few issues where the Trump Administration engaged with the international community.33 However, given the complicated relationship between Washington and Beijing, a relationship notably fraught with tension during the Trump Administration, it is likely that one of the motivations behind bringing forth forced-labor legislation, particularly after the COVID-19 pandemic entered the United States at the beginning of 2020, was to hurt China economically and reputationally.34 In any case, everything seems to indicate that the Biden Administration will prioritize human rights.35 Therefore, it was not far- fetched that a version of the UFLPA was ultimately signed into law without much resistance less than a year into Biden’s term, making the United States the leader36 in condemning 32 Press Release, White House, Bill Signed: H.R. 6256 (Dec. 23, 2021), https://www.whitehouse.gov/briefing-room/statements- releases/2021/12/23/bill-signed-h-r-6256/ [https://perma.cc/RQ82-LZBK]. 33 Pierfilippo M. Natta, In Rare Unanimity, Biden Could Double Down on Trump’s Uighur Sanctions, FOREIGN POL’Y (Dec. 3, 2020, 2:55 PM), https://foreignpolicy.com/2020/12/03/biden-uighurs-xinjiang-china-forced- labor-sanctions/ [https://perma.cc/V2TG-XMER]. 34 See Steven Lee Myers, China Lashes Out at U.S.’s Action Against Mass Incarcerations, N.Y. TIMES (June 18, 2020), https://www.nytimes.com/2020/06/18/world/asia/china-trump-pompeo- xinjiang-uighurs-bolton.html [https://perma.cc/9Y6L-QSLU] (discussing the juxtaposition between President Trump signing the Uyghur Human Rights Policy Act into law on the same day that his former national security adviser, John Bolton, accused him of once supporting Beijing’s crackdown in Xinjiang). 35 Press Statement, Antony J. Blinken, Sec’y of State, Putting Human Rights at the Center of U.S. Foreign Policy (Feb. 24, 2021), https://www.state.gov/putting-human-rights-at-the-center-of-u-s-foreign- policy/ [https://perma.cc/5G7J-TAS4]. 36 See Stephen Johnson, Australia Is Set to Fight Forced Muslim Labour in China with Import Bans on Goods Made in ‘Re-education Camps,’ DAILY MAIL (Jan. 27, 2021), https://www.dailymail.co.uk/news/article- No. 3:1438] WHERE WAS THIS T-SHIRT MADE? 1447 China over its human right abuses against the Uyghurs and other Turkic Muslim minorities.37 This Note argues that given the UFLPA’s overbroad economic implications and lack of a clear enforcement mechanism, it is neither an effective nor a realistic way of holding American companies seeking to import products from China accountable in the long term. More sensible ways of immediately eliminating forced labor from importers’ supply chains would have been to consider initially focusing enforcement on the worst actors; establishing a clear timetable for all stakeholders involved to move their production out of Xinjiang or find alternative suppliers; encouraging more cotton-growing in other parts of the world;38 having CBP create a more transparent and standardized process in its issuance of Withhold Release Orders (WRO);39 and having CBP collaborate closely with the 9190739/Senator-Rex-Patrick-wants-Australia-ban-Chinese-imports- using-forced-labour-Uighur-Muslims.html [https://perma.cc/GM7G-WBYD] (discussing the fact “Australia could join the United States in banning Chinese imports made with forced Muslim labour under a crossbench senator’s push for new laws.”); see also Ryan Patrick Jones, Federal Government Moves To Seal Off Canadian Companies from Human Rights Violations in China, CAN. BROAD. CORP. (Jan. 12, 2021), https://www.cbc.ca/news/politics/canada-xinjiang-forced-labour-1.5869752 [https://perma.cc/Y6G6-L3C5] (discussing that the Canadian government has set new requirements for firms that do business in Xinjiang and “a pledge to ban the export of products from Canada to China if there is a chance they could be used by Chinese authorities for surveillance, repression, arbitrary detention or forced labour”). 37 See Uyghur Human Rights Policy Act of 2020, Pub. L. No. 116-145, 134 Stat. 648 (codified at 22 U.S.C. § 6901) (“An Act To condemn gross human rights violations of ethnic Turkish Muslims in Xinjiang[.]”) 38 See Working on the Chain Gang; Congress Is Moving To Block Goods Made with the Forced Labour of Uyghurs, ECONOMIST (Jan. 9, 2021), https://www.economist.com/united-states/2021/01/09/congress-is-moving- to-block-goods-made-with-the-forced-labour-of-uyghurs [https://perma.cc/5JEZ-DR9W]. 39 See Johanna Estes & Alyssa Dickinson, Forced Labor Overview, U.S. CUSTOMS & BORDER PROT., (Dec. 12, 2019), https://www.cbp.gov/sites/default/files/assets/documents/2020- Apr/Forced%20Labor%20Presentation%20December%2012%202019%20FI NAL.pdf [https://perma.cc/B2S4-7DPW] (“Withhold release orders are 1448 COLUMBIA BUSINESS LAW REVIEW [Vol. 2021] retail industry on any technology-based solutions, such as supply chain tracing.40 Although foreclosing U.S. supply chain links to forced labor in Xinjiang is a legitimate objective from both a humanitarian and a policy stance, the challenge lies in figuring out exactly how to enforce this law without negatively impacting billions of dollars of global trade in supply chains that employ millions of workers throughout the world.41 Part II of this Note explains House Bill 1155 in detail, focusing on the heightened legal standard and the U.S. government’s enforcement plans towards products believed to have been manufactured with forced labor. Part III discusses how some important players in the fashion retail industry have responded to the potential passage of this legislation. It also examines the process by which WROs are passed and more specifically, the blanket WRO issued by the Trump Administration a few days before the end of his term. Passing the House version of the UFLPA will lead to a de facto permanent statutory WRO on Xinjiang, similar to the blanket internal instructions to all port directors to withhold release of specific merchandise into the U.S. commerce pending instructions from the Commissioner as to whether the merchandise may be released otherwise than for exportation.”). 40 See U.S. Customs & Border Protection – Intent to Sole Source for Cotton Origin Verification Pilot Program, GOVTRIBE (last updated Aug. 17, 2020), https://govtribe.com/opportunity/federal-contract-opportunity/u-dot- s-dot-customs-border-protection-intent-to-sole-source-for-cotton-origin- verification-pilot-program-70b06c20p00000466 [https://perma.cc/BJ58- V7Q4] (discussing that CBP “intends to enter a firm, fixed price contract with Oritain USA, Inc. for a pilot demonstration of Oritain’s cotton origin verification capability as a result of an unsolicited proposal received and evaluated[.]”). 41 Enforcing the Ban on Imports Produced by Forced Labor in Xinjiang: Hearing Before the Subcomm. On Trade of the H. Comm. on Ways and Means, 116th Cong. 3 (2020) [hereinafter Enforcing the Ban on Imports Produced by Forced Labor in Xinjiang, Hearing] (statement of Steve Lamar, President and CEO of American Apparel & Footwear Association), https://www.congress.gov/116/meeting/house/111010/witnesses/HMTG- 116-WM04-Wstate-LamarS-20200917.pdf (on file with the Columbia Business Law Review). No. 3:1438] WHERE WAS THIS T-SHIRT MADE? 1449 WRO issued by CBP on January 13, 2021, to detain all cotton products produced in Xinjiang.42 When this administrative decree starts being implemented in full force in 2022, it will likely lead to procedural legal challenges by the affected retailers. Immediately following CBP’s swift administrative action, the American Apparel & Footwear Association (AAFA), the National Retail Federation (NRF), the Retail Industry Leaders Association (RILA), and the United States Fashion Industry Association (USFIA) released a joint statement affirming that the companies that they represent are outraged by the reports of forced labor in Xinjiang and emphasizing that eradicating forced labor in their supply chains has long been their operational and public policy priority.43 In that same statement, these trade associations demanded that CBP share “the evidence gathered, and the evidentiary thresholds used, that led to [the blanket WRO].”44 Lastly, Part IV proposes that the retail industry should seek other sensible solutions—including implementing and using data-sharing platforms to collect reliable information on responsible suppliers, which would eliminate redundancies in the auditing process,45 or better yet, integrating forensic 42 See Press Release, U.S. Customs & Border Prot., CBP Issues Region- Wide Withhold Release Order on Products Made by Slave Labor in Xinjiang (Jan. 13, 2021), https://www.cbp.gov/newsroom/national-media-release/cbp- issues-region-wide-withhold-release-order-products-made-slave [https://perma.cc/GLC2-DTR2] (noting that as of January 13, 2021, CBP would detain cotton products and tomato products produced in the XUAR based on information that reasonably indicates the use of detainee or prison labor and situations of forced labor). 43 Press Release, Am. Apparel & Footwear Ass’m, Nat’l Retail Fed’n, Retail Indus. Leaders Ass’n & U.S. Fashion Indus. Ass’n, Joint Statement from AAFA, NRF, RILA, USFIA in Response to Ban on All Cotton Imports from XUAR (Jan. 13, 2021), https://www.aafaglobal.org/AAFA/AAFA_News/2020_Press_Releases/Joint _Association_Statement_Ban_XUAR_Cotton.aspx [https://perma.cc/6MU4- GBTF]. 44 Id. 45 See AMY K. LEHR, CTR. FOR STRATEGIC & INT’L STUD., NEW APPROACHES TO SUPPLY CHAIN TRACEABILITY: IMPLICATIONS FOR XINJIANG AND BEYOND 7 (2020), https://www.csis.org/analysis/new-approaches- 1450 COLUMBIA BUSINESS LAW REVIEW [Vol. 2021] science to assure cotton supply chain integrity,46 or adopting high-tech solutions such as isotope and microbiome tracing focused on identifying the origin of cotton or the identity of intermediary suppliers.47 These proposed solutions are not only expensive but also require a significant investment in time and oversight.48 II. LEGISLATION AFFECTING UYGHURS In the international arena, the existence of human right abuses that have taken and continue to take place in Xinjiang are well documented.49 This, coupled with the fact that the Uyghur humanitarian crisis has been repeatedly denounced by various countries, most recently by thirty-nine countries via a joint statement to the United Nations led by Germany, shows that there is wide consensus on the situation of the Uyghur minority in China.50 The Chinese government has supply-chain-traceability-implications-xinjiang-and-beyond [https://perma.cc/R95F-P7UW]. 46 See MeiLin Wan, Judy Murrah & John Jasper, How Forensic Science Can Assure Cotton Supply Chain Integrity, JUST STYLE, (Apr. 7, 2020), https://www.just-style.com/comment/how-forensic-science-can-assure- cotton-supply-chain-integrity_id138351.aspx [https://perma.cc/8C27- ZKQ8]. 47 LEHR, supra note 45, at 9. 48 See id., at 19 (“Widescale adoption of these approaches may be needed to make them efficient and less costly.”) 49 See, e.g., Nathan Sales & Sam Brownback, Opinion, China’s Attack on Uighurs Isn’t Counterterrorism. It’s Ugly Repression, WASH. POST (May 22, 2019), https://www.washingtonpost.com/opinions/chinas-attack-on- uighurs-isnt-counterterrorism-its-ugly-repression/2019/05/22/7bfb1d60- 7ccb-11e9-a5b3-34f3edf1351e_story.html (on file with the Columbia Business Law Review). 50 See Joint Statement by Ambassador Christoph Heusgen, Permanent Representative of the German Mission to the United Nations, Joint Statement on the Human Rights Situation in Xinjiang and the Recent Developments in Hong Kong Delivered by Germany on Behalf of 39 Countries (Oct. 6, 2020), https://usun.usmission.gov/joint-statement-on-the- human-rights-situation-in-xinjiang-and-the-recent-developments-in-hong- kong-delivered-by-germany-on-behalf-of-39-countries [https://perma.cc/QU5F-UWBM] (specifying that the cross-regional joint statement came from Albania, Australia, Belgium, Bosnia and Herzegovina, No. 3:1438] WHERE WAS THIS T-SHIRT MADE? 1451 been the only party to tirelessly deny the situation, claiming that “China has no genocide,”51 and has defensively asserted that the human rights violations in Xinjiang have been “fabricated by some American politicians.”52 Yet, paradoxically, China noted on Twitter that a study “shows that in the process of eradicating extremism, the minds of Uygur women in Xinjiang were emancipated and gender equality and reproductive health were promoted, making them no longer baby-making machines.”53 Twitter responded by not only removing the tweet and replacing it with “a label stating that it was no longer available” but it also suspended the Chinese Embassy’s account given the company’s explicit prohibition on tweets or direct messages that seek to dehumanize “a group of people based on their religion, caste, Bulgaria, Canada, Croatia, Denmark, Estonia, Finland, France, Germany, Haiti, Honduras, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, the Republic of the Marshall Islands, Monaco, Nauru, the Kingdom of the Netherlands, New Zealand, North Macedonia, Norway, Palau, Poland, Slovakia, Slovenia, Spain, Sweden, Switzerland, the United Kingdom, and the United States). 51 Paul D. Shinkman, China Fires Back at Blinken’s Condemnation Regarding Uighurs: ‘No Genocide – Period’, US NEWS (Jan. 8, 2021, 10:40 AM), https://www.usnews.com/news/world-report/articles/2021-01- 28/china-fires-back-at-blinkens-condemnation-regarding-uighurs-no- genocide-period (on file with Columbia Business Law Review) (detailing that Zhao Lijian, the Chinese Foreign Ministry spokesperson offered a rare display of exasperation, only hours after the Antony Blinken had been sworn as Secretary of State, at a press conference, saying “China has no genocide; China has no genocide; China has no genocide, period . . . the most important thing should be repeated three times.”). 52 John Feng, China Calls Xinjiang Human Rights Violations Claims ‘Lie of the Century’, NEWSWEEK (Dec. 29, 2020, 7:58 AM), https://www.newsweek.com/china-calls-xinjiang-human-rights-violations- claims-lie-century-1557697 [https://perma.cc/7HG8-7ZAS] (quoting Zhao Lijian, Chinese Foreign Ministry’s spokesperson). 53 Helen Davidson, Twitter Removes China US Embassy Post Saying Uighur Women No Longer ‘Baby-Making Machines’, GUARDIAN (Jan. 10, 2021, 12:31 AM), https://www.theguardian.com/world/2021/jan/10/twitter- removes-china-us-embassy-post-saying-uighur-women-no-longer-baby- making-machines [https://perma.cc/PH3S-88J8]. 1452 COLUMBIA BUSINESS LAW REVIEW [Vol. 2021] age, disability, serious disease, national origin, race, or ethnicity.”54 Given this level of awareness exhibited at the international level, activism at the grassroot level has also increased especially among young people, who have been increasingly attuned to some of the most pressing issues facing society such as human rights, systemic racism, and police brutality.55 At the civic level, the Coalition to End Forced Labor in the Uyghur Region stands out among recently created civil organizations in that it is a coalition consisting mostly of trade unions across various countries. The coalition members call on leading brands and global retailers to ensure that they are neither supporting nor benefiting from forced labor as well as hold them accountable for contributing to supply chains linked to Xinjiang.56 The mounting public 54 Twitter Locks Account of China’s US Embassy for Post on Xinjiang, AL JAZEERA (Jan. 21, 2021), https://www.aljazeera.com/news/2021/1/21/twitter-locks-account-of-chinas- us-embassy-for-post-on-xinjiang [https://perma.cc/A7HK-WV7K]; see also Hateful Conduct Policy, TWITTER, https://help.twitter.com/en/rules-and- policies/hateful-conduct-policy [https://perma.cc/8WNL-VH46] (last visited February 13, 2021). 55 See e.g., Katherine Fung, 16-Year-Old Petitions Congress To Ban Products Made Through China’s Forced Labor of Uyghurs, NEWSWEEK (Feb. 16, 2021, 5:14 PM), https://www.newsweek.com/16-year-old-petitions- congress-ban-products-made-through-chinas-forced-labor-uyghurs- 1569721 [https://perma.cc/Q7WY-6NDN] (detailing the activism of a young woman from North Carolina that started an online petition on Change.org calling on members of Congress to pass the Uyghur Forced Labor Prevention Act); Tenzin Chime, Irade Kashgary & Joyce Ho, Opinion, China’s Crackdown on Hong Kong, Tibet, Uyghurs: What to Know, TEEN VOGUE (Sept. 30, 2020), https://www.teenvogue.com/story/china-hong-kong- tibet-uyghurs-global-day-action [https://perma.cc/JZ4C-MBXB]. The fact that publications such as Teen Vogue, whose audience is teenagers and young adults, publish pieces concerning the Uyghur situation in China demonstrates the interest that young people have taken towards this cause. 56 See About Our Coalition, COALITION TO END FORCED LABOR IN THE UYGHUR REGION, https://enduyghurforcedlabour.org/about (last visited Oct.10, 2020) (on file with the Columbia Business Law Review); see also Kate Duffy, Human Rights Groups Say the Xinjiang Forced Labor Bill Will Likely Be Passed as Huge Companies Like Nike and Coca-Cola Lobby Against It, BUS. INSIDER (Dec. 6, 2020, 8:00 AM), No. 3:1438] WHERE WAS THIS T-SHIRT MADE? 1453 pressure seems to have yielded results as the AAFA, which alone represents more than one thousand brands in the apparel industry, the NRF, the RILA, the USFIA, and the Footwear Distributors and Retailers of America (FDRA), issued a joint statement on March 10, 2020 expressing their deep concern over reports of forced labor and treatment of Uyghurs and other minority workers in Xinjiang.57 In their statement, the organizations also urged the U.S. government to engage a multi-stakeholder working group to develop a collective approach to assess the problem and generate solutions to target bad actors, protect workers’ rights, and uphold the integrity of global supply chains.58 Likely not coincidentally, the timing of the release of this joint statement coincided with the AAFA’s sudden willingness to address this issue. Nate Hernan, the AAFA’s Senior Vice President, said “[w]e know there’s an issue,” referring to the opacity of supply chains Xinjiang and the Uyghur situation back in May 2019.59 Indeed, the day AAFA released its joint statement, March 11, 2020, a group of five Democrat and six Republican Representatives unveiled legislation restricting imports to the United States from Xinjiang as a response to the humanitarian crisis.60 https://www.businessinsider.com/human-rights-groups-battle-against- firms-on-xinjiang-forced-labor-2020-12 [https://perma.cc/GU7Q-TFYH] (describing the Coalition to End Forced Labor in the Uyghur Region’s activism). 57 Press Release, Am. Apparel & Footwear Ass’m, Nat’l Retail Fed’n, Retail Indus. Leaders Ass’n, U.S. Fashion Indus. Ass’n & Footwear Distribs. & Retailers of Am., Joint Statement from AAFA, NRF, RILA, USFIA, and FDRA on Reports of Forced Labor in Xinjiang (Mar. 10, 2020), https://www.aafaglobal.org/AAFA/AAFA_News/2020_Press_Releases/Joint _Statement_Xinjiang.aspx [https://perma.cc/22FL-ZZ5X]. 58 Id. 59 Deng & Dou, supra note 3. 60 See Austin Ramzy, U.S. Lawmakers Propose Tough Limits on Imports from Xinjiang, N.Y. TIMES (Mar. 11, 2020), https://www.nytimes.com/2020/03/11/world/asia/xinjiang-china-labor- bill.html [https://perma.cc/X4P9-RCLV]; see also Uyghur Forced Labor Prevention Act, H.R. 6210, 116th Cong. (2020) (listing the initial eleven cosponsors of the bill, among them Rep. Christopher Smith [R-NJ-4]; Rep. Thomas Suozzi [D-NY-3]; Rep. Tom Malinowski [D-NJ-7]; Rep. Vicky 1454 COLUMBIA BUSINESS LAW REVIEW [Vol. 2021] As a result of the global disruptions caused by the COVID- 19 pandemic and the need for Congress to work on various pressing domestic legislative acts, the proposed Uyghur legislation stalled in Congress for a few months.61 Scrutiny over the Uyghur human rights crisis accelerated in late summer and early fall of 2020 as evinced by the various congressional hearings.62 For instance, the House Committee on Oversight and Reform’s Subcommittee on National Security and the House Foreign Affairs’ Subcommittee on Asia, the Pacific, and Nonproliferation held a joint briefing on “China’s Oppression of Muslim Uyghurs in Xinjiang” on August 17, 2020.63 The Trade Subcommittee of the House Ways and Means Committee held a hearing on “Enforcing the Ban on Imports Produced by Forced Labor in Xinjiang” in mid- September,64 only a few days before the House of Representatives voted on and passed House Bill 6210.65 Hartzler [R-MO-4]; Rep. Joe Wilson [R-SC-2]; Rep. Mark Meadows [R-NC- 11]; Rep. Ted Yoho [R-FL-3]; Rep. Mike Gallagher [R-WI-8]; Rep. Jamie Raskin [D-MD-8]; Rep. Rashida Tlaib [D-MI-13]; Rep. Jennifer Wexton [D- VA-10]), https://www.congress.gov/bill/116th-congress/house- bill/6210/cosponsors?searchResultViewType=expanded (on file with the Columbia Business Law Review). 61 See Sarah Frazer, The Uyghur Forced Labor Prevention Act in Congress, BORGEN MAG. (July 25, 2020), https://www.borgenmagazine.com/the-uyghur-forced-labor-prevention-act [https://perma.cc/Z254-REYZ]. 62 U.S. Blocks Imports from China Due to Suspected Forced Labor, Continuing Its Aggressive Enforcement Actions and Leading to Potential Supply Chain Disruptions, COVINGTON & BURLING (Sept. 17, 2020), https://www.cov.com/en/news-and-insights/insights/2020/09/us-blocks- imports-from-china-due-to-suspected-forced-labor-continuing-its- aggressive-enforcement-actions-and-leading-to-potential-supply-chain- disruptions [ https://perma.cc/V7PS-JVH4]. 63 Press Release, House Comm. on Oversight and Reform, Subcomms. Hold Joint Briefing on China’s Oppression of Uyghur Population (Aug. 18, 2020), https://oversight.house.gov/news/press-releases/subcommittees- hold-joint-briefing-on-china-s-oppression-of-uyghur-population [https://perma.cc/CC3N-J8WU]. 64 See Enforcing the Ban on Imports Produced by Forced Labor in Xinjiang, Hearing, supra note 41. 65 Swanson, supra note 9. No. 3:1438] WHERE WAS THIS T-SHIRT MADE? 1455 A. Section 307 of the Tariff Act of 1930 For almost 100 years, section 307 of the Tariff Act of 1930 (also known as the Smoot-Hawley Tariff),66 codified at 19 U.S.C. § 1307, has explicitly prohibited the importation of products that have been “mined, produced, or manufactured wholly or in part in any foreign country by convict labor or/and forced labor or/and indentured labor under penal sanctions.”67 This law, however, initially contained a “consumptive demand” exception,68 which allowed the importation of a good manufactured by forced labor if it could be shown that no comparable good was made in the United States or that its level of domestic production did not meet the domestic demand for it.69 It was not until February 2016 that the Trade Enforcement Act of 2015 was enacted,70 eliminating this exception that had, up until that point, been a major limitation on CBP’s ability to fully enforce section 307 of the Tariff Act of 1930.71 The removal of the exception immediately resulted in CBP banning the importation of more goods in the years following it than in the fifteen years preceding its repeal via a dramatic 66 See The Battle of Smoot-Hawley; Protectionism, ECONOMIST (Dec. 18, 2008), https://www.economist.com/christmas-specials/2008/12/18/the- battle-of-smoot-hawley [https://perma.cc/8EVK-87TV]. 67 The Tariff Act of 1930 § 307, 19 U.S.C. § 1307 (2018). 68 The original statute included that “in no case shall such provisions be applicable to goods, wares, articles, or merchandise so mined, produced, or manufactured which are not mined, produced, or manufactured in such quantities in the United States as to meet the consumptive demands of the United States.” The Tariff Act of 1930 § 307, Pub. L. 71-361, 46 Stat. 590, 689–90. This language was removed in 2016. Trade Facilitation and Trade Enforcement Act of 2015, Pub. L. No. 114-125, § 910(a)(1), 130 Stat. 122, 239 (2016). 69 See U.S. CUSTOMS & BORDER PROT., CBP PUB. NO. 2133-0416, TRADE FACILITATION AND TRADE ENFORCEMENT ACT OF 2015: REPEAL OF CONSUMPTIVE DEMAND CLAUSE – FREQUENTLY ASKED QUESTIONS (2020). 70 Trade Facilitation and Trade Enforcement Act of 2015, Pub. L. No. 114-125, § 910(a)(1), 130 Stat. 122, 239 (2016). 71 Sandra L. Bell, The US Prohibition on Imports Made with Forced Labour: The New Law Is a ‘Force’ to be Reckoned With, 11 GLOB. TRADE & CUSTOMS L. 580, 581 (2016). 1456 COLUMBIA BUSINESS LAW REVIEW [Vol. 2021] increase in its issuance of WROs.72 “The ‘wholly or in part’ statutory language of section 307, combined with the broad authority granted to the CBP Commissioner, suggests that even the smallest component of a good, at the lowest tier of a supply chain, is enough to prohibit the importation of the entire good if that component is produced with forced labor.”73 That level of supply chain scrutiny for multinational companies such as the retailers in question, however, is unrealistic.74 This is one of section 307’s major defects—the fact that corporations most often “source raw materials for their products through complex and opaque supply chains located far from where the finished goods are ultimately sold.”75 Section 307 is able to reasonably address forced labor 72 Elliot Brewer, Closed Loophole: Investigating Forced Labor in Corporate Supply Chains Following the Repeal of the Consumption Demand Exception, 28 KAN. J.L. & PUB. POL’Y. 86, 90 (2018) (detailing that between the elimination of the exception clause in February of 2016 and September of 2018, CBP banned the importation of six goods, while it had not banned the importation of any goods from 2001 until 2016). CBP has banned the importation of thirty-four goods from the repeal of the exception and the publication of this note. Withhold Release Orders and Findings List, U.S. CUSTOMS & BORDER PROT., https://www.cbp.gov/trade/forced- labor/withhold-release-orders-and-findings [https://perma.cc/9V27-XPRW] (last visited Nov. 2, 2021). 73 Brewer, supra note 72, at 91. 74 John Ruggie states: Where business enterprises have large number of entities in their value chains it may be unreasonably difficult to conduct due diligence for adverse human rights impacts across them all. If so, business enterprises should identify general areas where the risk of adverse human rights impacts is most significant, whether due to certain suppliers’ or clients’ operating context, the particular operations, products or services involved, or other relevant considerations, and prioritize these for human rights due diligence. John Ruggie, Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, 29 NETH. Q. OF HUM. RTS. 224, 240 (2011). 75 See Amy L. Groff, Caitlin C. Blanche & John F. Sullivan, Top 10 Tips for an Ethical Supply Chain in 2018, K&L GATES (Jan. 30, 2018), No. 3:1438] WHERE WAS THIS T-SHIRT MADE? 1457 by a product’s final manufacturer, but the task is much more challenging at the early stages of the production cycle “several steps down the link in a [multinational company’s] supply chain.”76 This was also one of the main defects with both versions of the UFLPA. The UFLPA asks the CBP Commissioner to apply a presumption that “assumes that all goods manufactured in Xinjiang are made with forced labor and therefore banned under the 1930 Tariff Act,”77 and this presumption can prove to be effective in handling forced labor allegations by manufacturers situated within the geographical confines of Xinjiang. However, given reports that the Chinese government has moved thousands of Uyghurs from Xinjiang to factories throughout China over the last few years, where they are subjected to work “under conditions that strongly suggest forced labor,”78 the UFLPA’s presumption is similar to that of section 307 of the Tariff Act of 1930. This presumption is arguably the UFLPA’s main feature and will likely prove ineffective in combatting forced labor deeper in the supply chain. This is because corporations could either fail to detect forced labor in one of their many supply chain https://www.klgates.com/Top-10-Tips-for-an-Ethical-Supply-Chain-in- 2018-01-30-2018 [https://perma.cc/GC5J-KB2Z]. 76 Brewer, supra note 72; See John Foote, Can the U.S. End Supply Chain Links to Forced Uighur Labor? LAWFARE (Feb. 2, 2021), https://www.lawfareblog.com/can-us-end-supply-chain-links-forced-uighur- labor [https://perma.cc/KB7X-H95K [https://perma.cc/KB7X-H95K] (“While Section 307 is reasonably capable of addressing forced labor by a final manufacturer of imported goods, it struggles mightily to target forced labor where it is most pervasive—at the base of the supply chain.”). 77 See David Brunnstrom, U.S. Lawmakers Seek to Tighten Ban on Forced-labor Goods from China’s Xinjiang, REUTERS (Mar. 11, 2020, 11:28 AM), https://www.reuters.com/article/us-usa-china-xinjiang-labor/u-s- lawmakers-seek-to-tighten-ban-on-forced-labor-goods-from-chinas- xinjiang-idUSKBN20Y2DQ [https://perma.cc/J5A3-XSSA]; S. 65, 117th Cong. § 5 (2021); H.R. 1155, 117th Cong. § 4 (2021). 78 Jack Kelly, China Moves Uyghur Muslims into ‘Forced Labor’ Factories, FORBES (Mar. 5, 2020, 12:24 PM), https://www.forbes.com/sites/jackkelly/2020/03/05/china-moves-uyghur- muslims-into-forced-labor-factories/?sh=543a3b8e44e5 (on file with the Columbia Business Law Review) (quoting XU ET AL., supra note 9, at 3). 1458 COLUMBIA BUSINESS LAW REVIEW [Vol. 2021] workflows79 or willingly neglect to thoroughly investigate forced labor allegations.80 B. House Version of the UFLPA—H.R. 1155 Currently, CBP may issue a WRO to detain a particular shipment of a particular commodity when information reasonably, but not conclusively, indicates that the merchandise was produced by forced labor.81 It is only when 79 See U.S. Senator Calls for Action on Forced Labor in China’s Xinjiang, REUTERS (Mar. 10, 2020, 5:48 PM), https://www.reuters.com/article/us-usa-china-xinjiang/u-s-senator-calls- for-action-on-forced-labor-in-chinas-xinjiang-idUSKBN20X34Z [https://perma.cc/SN28-XFLJ] (In a letter to Commerce Secretary Wilbur Ross, Democratic Senator Bob Menendez wrote, “[T]here are consistent reports that U.S. companies fail to undertake basic labor and human rights assessments in Xinjiang, in essence willfully ignoring the horrific conditions of forced labor in Xinjiang”). 80 See U.S. Senator Calls for Action on Forced Labor in China’s Xinjiang, REUTERS (Mar. 10, 2020, 5:48 PM), https://www.reuters.com/article/us-usa-china-xinjiang/u-s-senator-calls- for-action-on-forced-labor-in-chinas-xinjiang-idUSKBN20X34Z [https://perma.cc/SN28-XFLJ] (In a letter to Commerce Secretary Wilbur Ross, Democratic Senator Bob Menendez wrote, “[T]here are consistent reports that U.S. companies fail to undertake basic labor and human rights assessments in Xinjiang, in essence willfully ignoring the horrific conditions of forced labor in Xinjiang”). 81 See The Uyghur Forced Labor Prevention Act: How It Impacts Your Company, MILLER & CHEVALIER (Oct. 29, 2020), https://www.millerchevalier.com/publication/uyghur-forced-labor- prevention-act-how-it-impacts-your-company [https://perma.cc/5S8X- RESB]. Forced labor “indicators are: [1] Abuse of vulnerability; [2] Deception; [3] Restriction of movement; [4] Isolation; [5] Physical and sexual violence; [6] Intimidation and threats; [7] Retention of identity documents; [8] Withholding of wages; [9] Debt bondage; [10] Abusive working and living conditions; and [11] Excessive overtime.” No. 3:1438] WHERE WAS THIS T-SHIRT MADE? 1459 the importer “establishes by satisfactory evidence that merchandise was not mined, produced, or manufactured in any part with the use of a class of labor specified in the finding” that CBP can release the held merchandise to the importer.82 This means that an importer of any article detained under this provision can submit a certificate of origin83 signed by the foreign seller or owner of the article to the CBP Commissioner or port director within a three-month period after the date the article was imported.84 If the certificate of origin is submitted within the prescribed time period and the CBP Commissioner finds that the merchandise is admissible, the port director is required to release the merchandise.85 One of House Bill 1155’s main features is section 4, which states that if importers want their merchandise to fall within INT’L LAB. OFF., ILO INDICATORS OF FORCED LABOUR (2012), https://www.ilo.org/wcmsp5/groups/public/—-ed_norm/—- declaration/documents/publication/wcms_203832.pdf (on file with the Columbia Business Law Review). Furthermore, the ILO reports states that “[t]he presence of a single indicator in a given situation may . . . imply the existence of forced labour . . . the set of eleven indicators covers the main possible elements of a forced labour situation, and hence provides the basis to assess whether or not an individual worker is a victim of this crime.” Id. 82 19 CFR §12.42(g) (2017). 83 A certificate of origin states: I, ____, foreign seller or owner of the merchandise hereinafter described, certify that such merchandise, consisting of ____ (Quantity) of _____ (Description) in _______ (Number and kind of packages) bearing the following marks and numbers _____ was mined, produce, or manufactured by _____ (Name) at or near ______, and was laden on board _____ (Carrier to the United States) at _____ (Place of lading) (Place of final departure from country of exportation) which departed from on _____; (Date); and that ______ (Class of labor specified in finding) was not employed in any stage of the mining, production, or manufacture of the merchandise or of any component thereof. Dated ____ (Signature). Id. §12.43(a). 84 Id. 85 Id. §12.43I. 1460 COLUMBIA BUSINESS LAW REVIEW [Vol. 2021] the exception to the prohibition on importation of goods made in Xinjiang, they would have to prove, “by clear and convincing evidence,” that their merchandise was not produced wholly or in part by forced labor.86 This is a heightened legal standard that would require the U.S. State Department to report on not only these products, but also the businesses that sell them in the United States.87 Furthermore, although technically no mens rea is specifically required, 88 this heightened standard creates a rebuttable presumption that all goods manufactured wholly or in part in Xinjiang, particularly for purposes of the “poverty alleviation” or the “pairing-assistance” programs are products of forced labor.89 The retail industry contends that such rebuttable presumption language would essentially allow CBP to find an importing company guilty until proven innocent.90 86 H.R. 1155, 117th Cong. § 4(b) (2021). 87 See Editorial, Western Companies Must Stop Profiting from China’s Crimes Against Humanity, WASH. POST (Mar. 14, 2020), https://www.washingtonpost.com/opinions/global-opinions/western- companies-must-stop-profiting-from-chinas-crimes-against- humanity/2020/03/13/2cdaeab6-63b7-11ea-845d-e35b0234b136_story.html (on file with the Columbia Business Law Review). 88 Black’s Law Dictionary defines “rebuttable presumption” defined as “[a]n inference drawn from certain facts that establish a prima facie case, which may be overcome by the introduction of contrary evidence.” Rebuttable Presumption, BLACK’S LAW DICTIONARY (11th ed. 2019). 89 H.R. 1155, § 4(a). Poverty alleviation programs are “presented by state media as a noble, benevolent effort by the ruling Communist Party to help predominantly poor rural workers gain access to the material benefits enjoyed by China’s urban residents [through which] they are offered free training and stable jobs to enable them to support their families and achieve a better life.” Rebecca Wright, Ivan Watson & Isaac Yee, ‘Black Gold’: How Global Demand for Hair Products is Linked to Forced Labor in Xinjiang, CNN (Oct. 10, 2020), https://www.cnn.com/interactive/2020/10/asia/black- gold-hair-products-forced-labor-xinjiang/ [https://perma.cc/8FBL-MU6Z]. Pairing assistance programs refer to the “mass transfer of Uyghur and ethnic minority labor from Xinjiang to factories in other parts of the province and across China . . . at least 80,000 Uyghurs have been transferred to 27 factories across China since 2017.” Id. 90 See, e.g., Rick Helfenbein, Xinjiang China – U.S. Retail’s XUAR Question Has A Truly Ugly Answer, FORBES (Sept. 29, 2020), https://www.forbes.com/sites/rickhelfenbein/2020/09/29/xinjiang-chinaus- No. 3:1438] WHERE WAS THIS T-SHIRT MADE? 1461 Oftentimes, an independent audit can help an importer overcome the type of presumption that is being included in this version of the bill. However, given that in Xinjiang “[a]uditor interviews with workers cannot be relied upon given the pervasive surveillance, and evidence of workers’ fear of sharing accurate information,”91 this suggests that “third- party audits alone may not be a credible source of information for indicators of labor abuses[.]”92 Furthermore, according to a multi-agency report issued in July of 2020, auditors in Xinjiang face a range of unique challenges such as detainment, harassment, threatening, and invasive airport stops by Chinese authorities.93 Auditors have also reportedly been required to use government translators who convey misinformation or do not speak the workers’ first language.94 Even if an importer were able to overcome the presumption and satisfy the import requirements independent of an audit, CBP would be required to prepare a public report explaining the reasons for having made such a determination.95 This retails-xuar-question-has-a-truly-ugly-answer/ (on file with the Columbia Business Law Review); The Uyghur Forced Labor Prevention Act: How It Impacts Your Company, supra note 81 (noting that although rebutting a presumption of forced labor is challenging, based on the firm’s experience, CBP would expect to see that the companies “have a program that effectively addresses the [ILO’s] 11 Indicators of Forced Labor, which represent the most common signs or ‘clues’ that point to the possible existence of a forced labor.”). 91 U.S. Dep’t of State et al., Xinjiang Supply Chain Business Advisory, Risks and Considerations for Businesses with Supply Chain Exposures to Entities Engaged in Forced Labor and other Human Rights Abuses in Xinjiang, U.S. DEP’T OF STATE (July 1, 2020), https://www.state.gov/wp- content/uploads/2020/07/Xinjiang-Supply-Chain-Business- Advisory_FINAL_For-508-508.pdf (on file with the Columbia Business Law Review). 92 Id. 93 Id. 94 Id. 95 See Uyghur Forced Labor Legislation Could Create New Compliance Challenges for Importers, HUSCH BLACKWELL LLP: ALERTS, (Dec. 10, 2020), https://www.huschblackwell.com/newsandinsights/uyghur-forced-labor- legislation-could-create-new-compliance-challenges-for-importers [https://perma.cc/K6XB-9CUU]. 1462 COLUMBIA BUSINESS LAW REVIEW [Vol. 2021] report would then have to be submitted to the appropriate congressional committee and made available to the public.96 Some believe this would disincentivize CBP from finding that the products from Xinjiang are not produced by forced labor, as it could expose them to criticism by Congress.97 This is yet another flaw in this version of the bill that could potentially influence the way CBP manages its findings and come into direct conflict with the bill’s objective of assuring that the CBP renders accurate and transparent reports to Congress. Section 5 of House Bill 1155, which addresses the Act’s enforcement strategy, should also be of great concern to retailers. This provision mandates that the Forced Labor Enforcement Task Force submit to the appropriate congressional committees a report containing the U.S. Government’s specific enforcement plans regarding any imported goods or merchandise, not only from the People’s Republic of China, but also third countries, if they have been mined, produced, or manufactured in part in Xinjiang,98 or by those working with the Xinjiang government for purposes of either the “poverty alleviation” or “pairing-assistance” programs.99 The requirement of this provision does “not have de minimis limitations,” meaning that any part of an imported product, no matter the size, could lead to its banning.100 Moreover, corporations wishing to import products manufactured in other regions of China or in third countries to the United States could also see themselves having to trace even the most minute inputs into their goods to ensure compliance with this provision.101 Aside from the heightened standard and the enforcement strategy, House Bill 1155 also shifts the burden of proof under 96 See H.R. 1155, 117th Cong. § 4(b)(2) (2021). 97 See Uyghur Forced Labor Legislation Could Create New Compliance Challenges for Importers, supra note 95. 98 See H.R. 1155, § 5(a). 99 See Id. § 5(a)(2). 100 See Uyghur Forced Labor Legislation Could Create New Compliance Challenges for Importers, supra note 95. 101 Id. No. 3:1438] WHERE WAS THIS T-SHIRT MADE? 1463 section 307 to importers.102 It should be noted that such shifts are actually not unprecedented. While CBP once bore the burden of proving that forced labor was involved in the production of imported merchandise, the enactment of the Countering America’s Adversaries Through Sanctions Act (CAATSA) in 2017 shifted this burden to importers, specifically for imported goods believed to have been produced by North Korean nationals, whose labor is automatically presumed to be forced given North Korea’s country conditions.103 For corporations that need to continue importing from Xinjiang, the brunt of this burden may be not only financially challenging, but also impossible to meet. The U.S. Departments of State, Treasury, Commerce, and Homeland Security jointly published the Xinjiang Supply Chain Business Advisory, which explains that even if corporations are to conduct thorough due diligence checks and audits to avoid tainted supply chains, the intrusive surveillance by local authorities and the inability to obtain reliable information from workers would render diligence results highly questionable.104 In a congressional hearing from 2019, 102 Nelson Dong, Dave Townsend & T. Augustine Lo, U.S. Bars More Imports and Weighs Broader Measures on Cotton from Xinjiang, China, DORSEY & WHITNEY LLP (Sept. 21, 2020), https://www.dorsey.com/newsresources/publications/client- alerts/2020/09/us-bars-more-imports-and-weighs-measures-on-cotton [https://perma.cc/SU3N-MHE8]. 103 Countering America’s Adversaries Through Sanctions Act, Pub. L. 115-44, § 302A, 131 Stat. 886, 952 (codified at 22 U.S.C. 9241a); see also Nate Bolin, CBP Issues Guidance on Complying with New Prohibitions on the Use of North Korean Labor and Inputs in Imported Merchandise, FAEGRE DRINKER BIDDLE & REATH LLP (2017), https://pdf.faegredrinker.com/pdfrenderer.svc/v1/ABCpdf9/GetRenderedPd fByUrl/CBPIssuesGuidanceonComplyingwithNewProhibitionsontheUseof NorthKoreanLaborandInputs__.pdf/?url=https%3a%2f%2fwww.faegredrin ker.com%2fen%2finsights%2fpublications%2f2017%2f11%2fcbp-issues- guidance-on-complying-with-new-prohibitions-on-the-use-of-north-korean- labor-and-inputs__%3fformat%3dpdf&attachment=false [https://perma.cc/DF7U-23XM]. 104 See ADAMS ET AL., supra note 2, at 7 (cautioning against relying on auditing of supply chains in the XUAR “given the impossibility of obtaining 1464 COLUMBIA BUSINESS LAW REVIEW [Vol. 2021] researcher Adrian Zenz said that “asking for an ‘independent social audit’ in an environment as controlled as Xinjiang is like asking the fox to check that no hens are missing,” illustrating the impossibility of obtaining an accurate audit in Xinjiang.105 Furthermore, many human rights and labor activists argue that auditors “risk becoming enablers that help brands justify source in Xinjiang,” as they were unable to conduct proper examinations of the factories.106 In turn, this has led some auditing groups to withdraw from Xinjiang altogether, which has added a layer of difficulty for brands to work with suppliers based in Xinjiang.107 Moreover, CBP may require evidence of implementation of policies combatting forced labor as well as supply chain maps, location of production steps, and remediation plans among other documentation from importers.108 Given that there is evidence that the aforementioned poverty alleviation programs in Xinjiang have evolved into large-scale factory and labor programs, the likelihood that a company is complicit in accurate information from the region”). But see Swanson, supra note 9 (noting that Apple had issued a statement indicating that “it had the strongest supplier code of conduct in its industry and that it regularly assessed suppliers, including with surprise audits,” and that Apple added had “conducted a detailed investigation with [their] suppliers in China and found no evidence of forced labor on [their] production lines[.]”). 105 Authoritarianism with Chinese Characteristics: Political and Religious Human Rights Challenges in China: Hearing before the Subcomm. on Asia, the Pac. and Nonproliferation of the H. Comm. on Foreign Affs., 116th Cong. 16 (2019) (statement of Dr. Adrian Zenz, Senior Fellow, China Studies, Victims of Communism Memorial Found.) 106 See Eva Xiao, Auditors to Stop Inspecting Factories in China’s Xinjiang Despite Forced-Labor Concerns, WALL ST. J. (Sep. 21, 2020, 11:41 AM), https://www.wsj.com/articles/auditors-say-they-no-longer-will- inspect-labor-dconditions-at-xinjiang-factories-11600697706 (on file with the Columbia Business Law Review). 107 Id. (reporting that the Bureau Veritas SA of France, TUV SUD AG of Germany, Sumerra LLC of the U.S., RINA SpA of Italy, and the Worldwide Responsible Accredited Production have said that they would not be providing labor-audit or inspection services in Xinjiang). 108 See The Uyghur Forced Labor Prevention Act: How It Impacts Your Company, supra note 81. No. 3:1438] WHERE WAS THIS T-SHIRT MADE? 1465 the forced labor regime remains extremely high.109 Due to the fact that cotton is a highly fungible commodity that it is often co-mingled with similar cotton fibers from other sources, cotton sourced from Xinjiang could show up in final products made all over the world.110 C. Senate Version of the UFLPA—S. 65 The bill passed in the House of Representatives in September of 2020111 but failed to get through the Senate before congressional adjournment. The House version was re- introduced in the 117th Congress on February 18, 2021.112 The Senate version of the bill was introduced on January 27, 2021, during the 117th Session of Congress by Senators Jeff Merkley (D-OR) and Marco Rubio (R-FL), as Senate Bill 65.113 In the Senate bill, section 5 seems to mostly concern retailers who import from Xinjiang. This section would mandate that the CBP Commissioner apply a presumption with respect to any article that is produced wholly or in part in Xinjiang or produced by “a list of entities working with the government of 109 See U.S. Dep’t of State et al., supra note 91; Chris Buckley & Austin Ramzy, China’s Detention Camps for Muslims Turn to Forced Labor, N.Y. TIMES (Dec. 16, 2018), https://www.nytimes.com/2018/12/16/world/asia/xinjiang-china-forced- labor-camps-uighurs.html [https://perma.cc/2EUH-U54G]. 110 See Enforcing the Ban on Imports Produced by Forced Labor in Xinjiang, Hearing, supra note 41 (statement of Steve Lamar, President and CEO of American Apparel & Footwear Association). 111 Working on the Chain Gang; Congress Is Moving To Block Goods Made with the Forced Labour of Uyghurs, supra note 38. 112 See Press Release, James P. McGovern, Rep., McGovern, Smith, Colleagues Re-Introduce the Bipartisan Uyghur Forced Labor Prevention Act (Feb. 18, 2021), https://mcgovern.house.gov/news/documentsingle.aspx?DocumentID=3986 73 [https://perma.cc/9H98-ME5D]. 113 See Press Release, Marco Rubio, Sen., Rubio, Merkley, Colleagues Re-Introduce Uyghur Forced Labor Prevention Act (Jan. 27, 2021), https://www.rubio.senate.gov/public/index.cfm/press- releases?id=51CB92F4-BC6F-47AB-BB06-58DE5AE6F08E [https://perma.cc/8GNJ-AUAN]. 1466 COLUMBIA BUSINESS LAW REVIEW [Vol. 2021] [Xinjiang] to move forced labor or Uyghurs, Kazakhs, Kyrgyz, or members of other persecuted groups out of [Xinjiang].”114 Both the House and Senate versions of the proposed legislation shift the burden to importers of goods from Xinjiang to prove that the merchandise is prohibited by the Tariff Act of 1930. However, only the House version mandates a heightened standard, instructing that importers of goods from Xinjiang must prove through “clear and convincing evidence” that their articles are “not produced wholly or in part by convict, forced, or indentured labor,”115 The American retail industry and the associations that represent it are likely eager to know whether this thorny legal provision will ultimately be included in the final version of the bill, and, if it is included, the industry will demand more guidance on CBP’s evidentiary standard language.116 D. Passed Version of the UFLPA —H.R. 6256 After lawmakers reached a compromise between the House and Senate versions of the UFLPA,117 President Biden signed 114 S. 65, 117th Cong. §§ 4(d)(B)(i), 5(a) (2021) (mandating that “The Commissioner of U.S. Customs and Border Protection shall, except as provided by subsection (b), apply a presumption that, with respect to any significant goods, wares, articles, and merchandise mined, produced, or manufactured wholly or in part in the Xinjiang Uyghur Autonomous Region of the People’s Republic of China or produced by entities on a list required by section 4(d)(2)(B)(i)[.]”). 115 H.R. 6210, 116th Cong. § 4 (2020). 116 Letter from Am. Apparel & Footwear Ass’m, Nat’l Retail Fed’n, Retail Indus. Leaders Ass’n, U.S. Fashion Indus. Ass’n & Footwear Distribs. & Retailers of Am., to Nancy Pelosi, Speaker of the House, Chuck Schumer, Senate Majority Leader, Kevin McCarthy, House Minority Leader and Mitch McConnell, Senate Minority Leader (Jan. 27, 2021), https://www.aafaglobal.org//AAFA/AAFA_News/2021_Letters_and_Comme nts/Multi_Association_Letter_Urges_Clear_and_Decisive_Action_on_Xinji ang.aspx (on file with the Columbia Business Law Review) (discussing the fact that they perceive that “[o]n the issue of an evidentiary standard, CBP’s ‘Hints for Proof of Admissibility’ do not provide enough guidance for importers on what specific information is needed to prove that forced labor does not exist in a supply chain.”). 117 David Brunnstrom & Paul Grant, Biden Signs Bill Banning Goods from China’s Xinjiang over Abuse of Uyghurs, REUTERS, (Dec. 23, 2021, 6:10 No. 3:1438] WHERE WAS THIS T-SHIRT MADE? 1467 the bicameral and bipartisan UFLPA on December 23, 2021.118 Importers essentially have 180 days from this date to work with CBP and the Forced Labor Enforcement Task Force to develop standards to allow them to rebut the new statutory presumption that products from Xinjiang are made using forced labor and therefore, should be denied entry into the United States.119 Senator Jeff Merkley, a co-sponsor of the legislation as well as the chairman of the Congressional- Executive Commission on China, stated that the passage of the UFLPA “sends a powerful, bipartisan message that the United States will not turn a blind eye to China’s violations of human rights” and that American businesses and consumers “can buy goods without inadvertent complicity in China’s horrific human right abuses.”120 President Biden’s signing of the UFLPA follows a move made by President Trump before leaving office in January 2021 that issued a sweeping ban on imports of cotton or tomato products from Xinjiang.121 Unsurprisingly, some of the goods such as cotton, tomatoes, and polysilicon—used in solar- panel manufacturing, have been designated as “high priority” for enforcement action.122 PM), https://www.reuters.com/world/us/biden-signs-bill-clamp-down- products-chinas-xinjiang-2021-12-23/ (on file with the Columbia Business Law Review). 118 Press Release, White House, Bill Signed: H.R. 6256 (Dec. 23, 2021), https://www.whitehouse.gov/briefing-room/statements- releases/2021/12/23/bill-signed-h-r-6256/ [https://perma.cc/RQ82-LZBK]. 119 Carl A. Valenstein & Katelyn M. Hilferty, US Congress Passes the Uyghur Forced Labor Prevention Act, MORGAN LEWIS, (Dec. 27, 2021), https://www.morganlewis.com/pubs/2021/12/us-congress-passes-the- uyghur-forced-labor-prevention-act [https://perma.cc/2FA4-DGZV]. 120 Felicia Sonmez, Biden Signs Uyghur Forced Labor Prevention Act into Law, WASH. POST, (Dec. 2, 2021, 1:00 PM), https://www.washingtonpost.com/politics/biden-uyghur-labor- law/2021/12/23/99e8d048-6412-11ec-a7e8-3a8455b71fad_story.html [https://perma.cc/75CY-F6Y9]. 121 Id. 122 Brunnstrom & Grant, supra note 117. 1468 COLUMBIA BUSINESS LAW REVIEW [Vol. 2021] III. INDUSTRY RESPONSE TO THE PROPOSED LEGISLATION When the legislation takes effect by the middle of 2022, it will surely spur action. Retail companies are not likely to sit idly by without putting up a fight, as many businesses are not ready to decouple from Xinjiang entirely, at least not right away.123 PVH Corp., which owns Calvin Klein and Tommy Hilfiger, stated in July of 2020 that it would cease “all business relationships with any factories and mills that produce garments or fabric, or use cotton grown, in Xinjiang within the next 12 months.”124 However, it seems like many of the major U.S.-based retail corporations such as American Apparel and Nike, as well as trade groups such as the National Retail Federation and the U.S. Chamber of Commerce, have thus far focused their efforts on hiring lobbyists to water down some of the provisions in the proposed legislation.125 These groups have argued that “while they strongly condemn forced labor and current atrocities in Xinjiang, the act’s ambitious requirements could wreak havoc on supply chains that are deeply embedded in China.”126 In the first three quarters of 2020, for example, Nike spent around one million dollars on in-house lobbying of Congress and other federal agencies on matters including the Uyghur Forced Labor Prevention Act.127 The allegations of corporate 123 Working on the Chain Gang; Congress Is Moving To Block Goods Made with the Forced Labour of Uyghurs, supra note 38. 124 See Xiao, supra note 106. 125 See Tyler Sonnemaker, Nike, Coca-Cola, and Apple Reportedly Lobbied To Weaken a Bill Aimed at Preventing Them from Manufacturing Products in China Using Forced Uighur Labor, BUS. INSIDER (Dec. 1, 2020, 1:41 AM), https://www.businessinsider.com/apple-nike-coca-cola-lobbied- china-uyghur-forced-labor-bill-2020-11 [https://perma.cc/NX8A-6BY5]. 126 Swanson, supra note 9. 127 Id. (showing that Nike “paid outside firms like Cornerstone Government Affairs, Ogilvy, Capital Counsel, GrayRobinson, American Continental Group, DiNino Associates and Empire Consulting Group more than $400,000 this year to lobby on issues including the [Uyghur Forced Labor Prevention Act]”); see also Thomas Barrabi, Nike, Coca-Cola Lobbying to Weaken China Forced Labor Bill: Report, FOX BUS. (Nov. 30, No. 3:1438] WHERE WAS THIS T-SHIRT MADE? 1469 lobbying efforts by Nike prompted its Director of Global Communication, Greg Rossiter, to declare that Nike had not lobbied against the Uyghur Forced Labor Prevention Act, but rather, that they “had ‘constructive discussions’ with congressional staff aides aimed at eliminating forced labor and protecting human rights.”128 In March 2020, around the same time Congress unveiled plans to introduce its initial version of the legislation, House Bill 6210, Nike published a statement declaring that it did not source products from Xinjiang and confirming that its contract suppliers did not use textiles or spun yarn from the region.129 Nike stated that its “ongoing diligence [did] not [find] evidence of employment of Uyghurs, or other ethnic minorities from the XUAR, elsewhere in [their] supply chain in China.”130 Nike also boldly asserted that although it regularly provides insight and feedback at the request of policymakers on issues such as human rights and supply chain integrity, it “ha[s] not lobbied against the Uyghur Forced Labor Prevention Act, or any other proposed forced labor legislation.”131 Reporting by the New York Times directly contradicts Nike’s assertions.132 Moreover, the Australian Strategic Policy Institute, a defense and strategic policy think tank, published a report specifically focusing on Nike’s operations in Qingdao, which reports that as of January 2020, “around 600 ethnic minority workers from Xinjiang were employed at Qingdao Taekwang Shoes Co. one Ltd.,” one of the largest shoe manufacturers for Nike.133 This reporting tarnishes Nike’s credibility, especially since this is not the first time the 2020), https://www.foxbusiness.com/politics/nike-coca-cola-lobbying- uyghur-forced-labor-prevention-act [https://perma.cc/D7DC-GBB9] (discussing that Coca Cola has allegedly spent $4.68 million on in-house and outside lobbying on the Uyghur Forced Labor Prevention Act). 128 Swanson, supra note 9. 129 Press Release, Nike, Statement on Xinjiang, https://purpose.nike.com/statement-on-xinjiang [https://perma.cc/3Z5D- 29SC] (last visited Oct. 13, 2021). 130 Id. 131 Id. 132 Swanson, supra note 9. 133 See XU ET AL., supra note 9. 1470 COLUMBIA BUSINESS LAW REVIEW [Vol. 2021] multinational company has been accused of labor abuses in its factories abroad.134 A. Sweeping Ban on All Cotton Products from Xinjiang Generally, CBP follows a nine-step process for initiating, investigating, and ultimately adjudicating a forced labor allegation as set out in its published process map.135 It starts either when the agency initiates a forced labor investigation on its own or when they receive an allegation of forced labor under the provisions set out in 19 C.F.R. § 12.42.136 Such allegations often come from domestic or international NGOs that focus on combatting forced labor.137 For example, on August 28, 2020, the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), along with other organizations such as Freedom United and the Human Trafficking Legal Center, filed a petition under 19 U.S.C § 1307 “calling for a WRO prohibiting the entry of all cotton- made goods, including from third countries, linked to forced labor in the Uyghur Region.”138 Once the investigation is 134 Kate Hodal, Nike Factory To Pay $1m to Indonesian Workers for Overtime, GUARDIAN (Jan. 12, 2020, 4:10 AM), https://www.theguardian.com/world/2012/jan/12/nike-1m-indonesian- workers-overtime (on file with Columbia Business Law Review) (discussing that aside from owing Indonesian factories worker unpaid overtime, Nike “has been accused in the past of using child labour in its supply chain and in relation to working conditions in its 1,000 overseas supplier factories[.]”). 135 See U.S. CUSTOMS & BORDER PROT., CBP PUB. NO. 0847-0219, FORCED LABOR PROCESS (2019). 136 See Forced Labor: Government and Industry Groups Intensify Focus on Xinjiang, AKIN GUMP STRAUSS HAUER & FELD LLP (March 17, 2020), https://www.akingump.com/en/news-insights/forced-labor-government- and-industry-groups-intensify-focus-on-xinjiang.html [https://perma.cc/LMD3-4JXF]. 137 Id. 138 See Press Release, Richard Trumka, President, AFL-CIO, AFL-CIO Applauds Action to Ban Goods Made with Forced Labor Linked to Xinjiang Production and Construction Corps (Dec. 2, 2020), https://aflcio.org/press/releases/afl-cio-applauds-action-ban-goods-made- forced-labor-linked-xinjiang-production-and [https://perma.cc/NL2L- VAG3]. No. 3:1438] WHERE WAS THIS T-SHIRT MADE? 1471 initiated, CBP may engage with the submitter and the importer to develop additional evidence by issuing administrative subpoenas, requesting for information such as customs forms (e.g., CF-28s),139 or carrying out informal agency outreach.140 This is then followed by an evaluation in which CBP must determine or establish reasonable suspicion to issue a WRO.141 If the CBP Commissioner approves the WRO, then the agency detains the merchandise, and it immediately issues the WRO instructing port directors throughout the United States to withhold the release of the merchandise suspected to have been produced wholly or in part by forced labor.142 Once CBP starts detaining the shipments that fall within these parameters, the importer can export the detained good or contest the order, and the agency may release or withhold the shipment.143 To have the shipment released, the importer needs to submit, within three months of the importation, a certificate of origin and a detailed statement, such as a supply chain audit report, that demonstrates that the subject merchandise was not produced wholly or in part using forced labor.144 If the importer is able to persuade CBP, through convincing evidence,145 that its merchandise was not 139 See Chase Samuels, Understanding a CF-28: Customs Form 28, TRADE RISK GUAR. (JULY 30, 2019), https://traderiskguaranty.com/trgpeak/understanding-cf-28/# [https://perma.cc/TM7B-DE7P] (explaining that Customs Form 28 is a formal request from CBP for more information from importers during entry to the United States). 140 See Forced Labor: Government and Industry Groups Intensify Focus on Xinjiang, supra note 136. 141 Id. 142 Id. 143 Id. 144 Id. 145 See U.S. CUSTOMS & BORDER PROT., CBP PUB. NO. 1165-0620, HELPFUL HINTS FOR SUBMITTING PROOF OF ADMISSIBILITY AND WRO REVOCATION/MODIFICATION REQUESTS (2019) (setting out examples of helpful evidence to provide which may include copies of policies and evidence of company addressing ILO indicators of forced labor; copies of recent unannounced third party audits; copies of remediation plans; supply chain maps that specify locations of manufacturers, factories, processing 1472 COLUMBIA BUSINESS LAW REVIEW [Vol. 2021] produced using forced labor, CBP orders the merchandise’s release.146 If on the other hand, the importer fails to do so, CBP excludes (i.e., rejects entry of) the detained merchandise, treats it as an importation statutorily prohibited by 19 U.S.C. § 1307,147 and publishes a formal finding in the Customs Bulletin and the Federal Register.148 Lastly, CBP seizes the merchandise, and at this step, the importer may petition once again for the release of the merchandise; if unsuccessful, CBP commences summary forfeiture proceedings and destroys the merchandise.149 Historically, CBP has cited staff shortages and a lack of funding for dropping forced labor investigations against importers and limiting its ability to monitor open cases.150 But centers; pictures of living and working accommodations among others. Examples of documentation to avoid are data and document dumps; policies without an explanation of how they are implemented; information about efforts to detect and address child labor without actually explaining the relevance to combatting forced child labor). 146 Forced Labor: Government and Industry Groups Intensify Focus on Xinjiang, supra note 136. 147 Tariff Act of 1930, 19 U.S.C. § 1307 (2018). The Act says that [a]ll goods wares, articles, and merchandise mined, produced, or manufactured wholly or in part in any foreign country by convict labor or/and forced labor or/and indentured labor under penal sanctions shall not be entitled to entry at any of the ports of the United States, and the importation thereof is hereby prohibited, and the Secretary of the Treasury is authorized and directed to prescribe such regulations as may be necessary for the enforcement of this provision. ‘Forced labor’, as herein used, shall mean all work or service which is exacted from any person under the menace of any penalty for its nonperformance and for which the worker does not offer himself voluntarily. For purposes of this section, the term ‘forced labor or/and indentured labor’ includes forced or indentured child labor. Id. 148 Forced Labor Frequently Asked Questions, U.S. CUSTOMS AND BORDER PROT. (last modified June 26, 2019), https://www.cbp.gov/print/350485 [https://perma.cc/87TT-PFDR] 149 Casey et al., supra note 52. 150 Id. No. 3:1438] WHERE WAS THIS T-SHIRT MADE? 1473 since President Trump took office in 2016, twelve WROs were issued out of the total of forty-three WROs issued to China since 1991—nine of them in 2020 alone and eight of which specifically targeted Xinjiang.151 The retail industry has often criticized CBP’s WROs for consistently striving to go beyond mere compliance.152 The AAFA Statement from September 2020, for example, criticized the WROs passed as “vague and poorly defined.”153 Effective January 13, 2021, the broadest WRO, dubbed a “blanket import ban” by the retail industry,154 went into effect, and CBP started to detain all cotton products and tomato products produced in Xinjiang at all U.S. ports of entry.155 CBP justified the WRO against all cotton products and tomato products from this region based on information that reasonably indicate[d] the use of detainee or prison labor and situations of forced labor. The agency identified the following forced labor indicators through the course of its investigation: debt bondage, restriction of movement, isolation, intimidation, and threats, withholding of wages, and abusive living and working conditions.156 B. Issues with Enforceability Since one-fifth of the world’s cotton comes from Xinjiang, it is inevitable that cotton picked, spun, woven, and ultimately transported from this region of the world will leak into global supply chains and contaminate cotton far beyond its geographical borders.157 Xinjiang’s enormous production 151 See Withhold Release Orders and Findings, supra note 72. 152 See Enforcing the Ban on Imports Produced by Forced Labor in Xinjiang, Hearing, supra note 41 (statement of Steve Lamar, President and CEO of American Apparel & Footwear Association). 153 Id. 154 See Lawder, supra note 3. 155 Press Release, U.S. Customs & Border Prot., CBP Issues Region- Wide Withhold Release Order on Products Made by Slave Labor in Xinjiang, supra note 42. 156 Id. 157 Rick Helfenbein, China Update: Fashion’s Next Apocalypse Is Cotton from Xinjiang, FORBES (Sept. 23, 2020, 6:27 AM), 1474 COLUMBIA BUSINESS LAW REVIEW [Vol. 2021] capacity cannot be readily or quickly replaced.158 It is also important to note that few products currently ship directly from Xinjiang to the United States.159 Xinjiang’s direct cotton shipments to the United States are minimal since they typically enter the garment supply chain either in China or elsewhere in Asia.160 Furthermore, because global supply chains frequently include multiple layers of suppliers, it is difficult to trace the origin of cotton beyond first-tier suppliers.161 As the simplified seven-step cotton supply chain process shows, 162 an article of clothing made out of cotton will https://www.forbes.com/sites/rickhelfenbein/2020/09/23/china-update- fashions-next-apocalypse-is-cotton-from-xinjiang/?sh=377295c53d77 [https://perma.cc/FA87-CRMJ]. 158 See Enforcing the Ban on Imports Produced by Forced Labor in Xinjiang, Hearing supra note 41 (statement of Steve Lamar, President and CEO of American Apparel & Footwear Association); see also Working on the Chain Gang, supra note 38 (discussing the fact that in its intense lobbying efforts, the retail industry has sought “a delay of up to one year in enforcement” if the UFLPA is passed). 159 See LEHR & BECHRAKIS, supra note 6, at 2. 160 Finbarr Bermingham, US Drops Sweeping Xinjiang Goods Ban, China’s Cotton Sector Breathes Temporary Sigh of Relief, S. CHINA MORNING POST (Sept. 15, 2020), https://www/scmp.com/economy/global- economy/article/3101611/us-drops-sweeping-xinjiang-goods-ban-chinas- cotton-sector (on file with the Columbia Business Law Review). 161 See Galit A. Sarfaty, Shining Light on Global Supply Chains, 56 HARV. INT’L L.J. 419, 458 (2015). See also Finbarr Bermingham, US Drops Sweeping Xinjiang Goods Ban, China’s Cotton Sector Breathes Temporary Sigh of Relief, S. CHINA MORNING POST (Sept. 15, 2020) (on file with the Columbia Business Law Review). 162 See Cotton Around the World: Domestic vs. Foreign Cotton Supply Chain, HOMEGROWN COTTON (April 12, 2018), https://www.homegrowncotton.us/blog/cotton-around-the-world-domestic- vs-foreign-cotton-supply-chain [https://perma.cc/U7MW-Y9RY]. The basic cotton supply chain is a string of value chain actors that transform it from a natural fiber to an article of clothing typically following a seven-step process in the following order: 1) the cotton is planted and grown to maturity; 2) the cotton is harvested, packed, and ginned; 3) the cotton is baled for shipping to the spinning mills; 4) once at the spinning mills, the cotton is spun into thread or yarn, depending on the final product, then shipped to a garment manufacturing facility; No. 3:1438] WHERE WAS THIS T-SHIRT MADE? 1475 usually travel thousands of miles along a supply chain before ending up in a retail store for commercial consumption.163 In more complex processes where commodity traders are used as middlemen and the practice of fiber blending164 from multiple sources is employed, value chains can have more than fifteen nodes.165 Figure 1 Another important consideration is that given the numerous reports that Uyghurs are trafficked to regions 5) the cotton is dyed to the desired color before being woven into fabric; 6) the cotton is cut and sewn into the final product; and 7) the final product is then packaged and shipped to the warehouses or stores for sale. Id. 163 Id. 164 See Menghe Miao, Fiber Blending, in ENGINEERING OF HIGH- PERFORMANCE TEXTILES 59, 59 (Menghe Miao & John H. Xin eds., 2018) (“Blending refers to the process of mixing various lots of fibers to produce a homogenous mass. Blending is typically carried out before spinning a staple fiber yarn or before forming a staple fiber web in a nonwoven process.”). 165 See Transparency in Fashion – UNECE Mobilizing Industry and Experts To Develop Blockchain Traceability Tool and Policy Framework Under EU-funded Project, UNECE (Nov. 8, 2019), https://unece.org/trade/news/transparency-fashion-unece-mobilizing- industry-and-experts-develop-blockchain [https://perma.cc/T8WR-HL86]. 1476 COLUMBIA BUSINESS LAW REVIEW [Vol. 2021] outside of Xinjiang to work in factories across China,166 the proposed de facto geographical ban167 that will result from the UFLPA’s presumption standard does not solve the human right abuses taking place against Uyghurs by the Chinese government. This de facto statutory ban is likely to deter businesses from engaging with legitimate suppliers in the long run, worsen the economic security of vulnerable workers in China in dire need of wages,168 and inflict extreme economic harm on the American retail industry. This last effect may push the retail industry to find creative ways to circumvent these types of legislative prohibitions. These can include engaging in intense lobbying efforts to weaken enforcement aspects of the law,169 maneuvering production supply chains so that they fall outside of Xinjiang while continuing to directly or indirectly benefit from forced labor or having their Chinese counterparts reshuffle their supply chains internally.170 Human rights 166 See XU ET AL., supra note 9, at 18; see also Uyghur Forced Labor Prevention Act, S.65, 117th Cong. § 2(5) (2021) (“[N]ongovernmental organizations estimate that more than 80,000 Uyghurs [have been] transferred out of the Xinjiang Uyghur Autonomous Region to work in factories across the People’s Republic of China between 2017 and 2019, and some of them were sent directly from detention camps.”). 167 See Foote, supra note 76 (clarifying that “WROs have been almost universally described as actions to ‘ban’ the importation such goods, though they [do] no such thing. CBP itself has explained that a ‘WRO is not a ban’”). 168 CHRISTOPHER A. CASEY, CATHLEEN D. CIMINO-ISAACS & KATARINA C. O’REGAN, CONG. RSCH. SERV., IF11360, SECTION 307 AND IMPORTS PRODUCED BY FORCED LABOR 2 (2021). 169 See Swanson, supra note 9. 170 See Ana Swanson & Brad Plumer, China’s Solar Dominance Presents Biden with an Ugly Dilemma, N.Y. TIMES (Apr. 20, 2021), https://www.nytimes.com/2021/04/20/business/economy/china-biden-solar- panels.html [https://perma.cc/2CTM-92D5] (discussing that the solar energy sector depends heavily on polysilicon—a raw material that most solar panels use to absorb energy from sunlight). Half of the global supply of polysilicon comes from Xinjiang, and due to the restrictions that may stem from the UFLPA, some Chinese companies have reshuffled their supply chains by funneling polysilicon and other solar products manufactured outside of Xinjiang to American buyers and directing their Xinjiang-made products domestically or to other markets without these looming restrictions. Id. No. 3:1438] WHERE WAS THIS T-SHIRT MADE? 1477 advocates have correctly pointed out that allowing Chinese companies to “cleave their supply chains to serve American as well as non-American buyers may do little or nothing to materially improve the conditions in Xinjiang.”171 It should also be noted that the bill’s legislative intent is solely to disincentivize forced labor and not to disrupt legitimate supply chains that pass through Xinjiang.172 IV. PROPOSED SOLUTIONS According to the International Cotton Advisory Committee—an international trade association in Washington—China exports unprocessed cotton to fourteen countries such as Bangladesh, India, Pakistan, Thailand, and Vietnam, and yarn to approximately 190 countries.173 During a congressional hearing, Stephen Lamar, the President of the AAFA, said that “there is no technology available to trace cotton origin with reasonable accuracy.”174 Oritain,175 a New Zealand firm, disputes this assertion, claiming that it can trace a swatch of cotton to the soil of Xinjiang with ninety-five 171 Id. 172 See H.R. 1155, 117th Cong. § 3(4)–(5) (2021) (stating that it is the policy of the United States to actively prevent, denounce, and end human trafficking, torture, enforced disappearances, severe deprivation of liberty, widespread forced labor, and persecution targeting identifiable ethnic or religious groups as horrific assaults on human dignity and to restore the lives of those affected); S. 65, 117th Cong. § 3(3)–(4) (2021) (stating the same). 173 Goodman et al., supra note 4. 174 See Lawder, supra note 3. 175 Our Verification, ORITAN, https://oritain.com/about/our- certification/ [https://perma.cc/5TVJ-MMQT] (last visited Dec. 13, 2021). Oritan is a forensic science firm that can identify the place of origin of cotton fibers by tracing elements in cotton from natural elements, such as local nutrients and waters. The Science, ORITAN, https://oritain.com/how-it- works/the-science/ [https://perma.cc/7ZPJ-ZZHA]. Furthermore, samples are run through statistical models to determine whether each element is consistent with a claimed origin). Id. The Science, ORITAIN, https://oritain.com/how-it-works/the-science/ [https://perma.cc/5ELE-KA6X] (last visited Nov. 3, 2021). 1478 COLUMBIA BUSINESS LAW REVIEW [Vol. 2021] percent confidence.176 Lamar counters that under the UFLPA, results that had a probability of being ninety-five percent accurate would not be enough to quash CPB’s presumption and that “without ‘foolproof accuracy,’ products [would] be detained.”177 Lamar’s supposition, however, is not supported by evidence. The UFLPA suggests that for an importer to be exempted from the CBP presumption—that any merchandise produced wholly or partially in Xinjiang or by persons working under the auspices of any government-run poverty-alleviation program is the result of forced labor—it must meet a specific threshold of certainty or confidence.178 A clear and convincing standard would almost certainly be satisfied with evidence that had a 95% chance of being accurate.179 A. Tracing Technologies A sustainable supply chain is characterized by a high degree of both transparency and traceability. Since cotton is often traded as an international commodity with little or no traceability between the cotton farm gate and its end-users, 176 Working on the Chain Gang; Congress Is Moving To Block Goods Made with the Forced Labour of Uyghurs, supra note 38. 177 Id. 178 H.R. 6256, 117th Cong. (2021). 179 See, e.g., Kevin F. O’Malley, Jay E. Grenig & Hon. William C. Lee, 3 Federal Jury Practice & Instructions § 104:02 (6th ed. 2012) (Explaining that while the “clear and convincing” standard requires more persuasion than the “preponderance of evidence” standard, the “clear and convincing” does not require “absolute certainty”); David L. Schwartz & Christopher B. Seaman, Standards of Proof in Civil Litigation: An Experiment from Patent Law, 26 HARV. J. L. & TECH. 429, 439 (2013). A 1980s survey reported that active, senior, and retired federal judges at that time, when asked to assign a percentage value for the clear and convincing evidence standard, 4 judges out of 170 surveyed assigned this standard a value between 50% to 55%, 27 judges rated it between 60% to 65%, 111 judges assigned this standard a value between 70% to 80% probability, 24 judges rated it between 85% to 90%, and just 4 judges rated it between 95% to 100% probability. The average probability of all the surveyed judges was 75%. Id. No. 3:1438] WHERE WAS THIS T-SHIRT MADE? 1479 cotton has historically been difficult to trace.180 These same traits, plus authenticity, are also especially appealing to today’s socially-conscious customers who are likely willing to pay more for their clothes if they can be assured that they are not contributing to the child labor or forced labor schemes that are often associated with cotton supply chains in the developing world.181 An empirical study conducted by two political science professors at George Washington University found that when presented with different types of ethical labeling campaigns and a set of hypothetical labels based on ILO’s core labor standards, such as “Union Made,” “Women Empowered,” “Child Labor Free,” and “Living Wage,” respondents were willing to pay as much as double for garments advertised as “Child Labor Free.”182 Since many consumers in the market equate “‘child labor’ with ‘forced labor,’ [this] suggest[s] that they could be responsive to products certified and labeled as free from the abuses reported in Xinjiang.”183 One of the core challenges in current traceability systems is identifying suppliers when the materials have been blended or paper trails have simply been lost.184 “One method . . . is to spray a fine mist of synthetic DNA onto cotton fib[er] at the gin before it is baled. The molecular tag stays on the cotton fiber through weaving and cutting, so the raw material can be identified.”185 Retailers, however, should go a step further and 180 ENV’T JUST. FOUND., SOMEBODY KNOWS WHERE YOUR COTTON COMES FROM: UNRAVELLING THE COTTON SUPPLY CHAIN 5 (2009), https://ejfoundation.org/resources/downloads/track_and_trace_web.pdf [https://perma.cc/AAG5-D9DG]. 181 Id. 182 See Aparna Ravi & Emmanuel Teitelbaum, The U.S. Banned Xinjiang Cotton Imports Because of Forced Labor. Textile Workers Face Abuses in Other Countries, Too, WASH. POST, (Feb. 10, 2021, 5:00 AM), https://www.washingtonpost.com/politics/2021/02/10/us-banned-xinjiang- cotton-imports-because-forced-labor-textile-workers-face-abuses-other- countries-too/ (on file with the Columbia Business Law Review). 183 Id. 184 See Lehr supra note 45, at 9. 185 See John Gapper, Forced Labour Is the Price of a Cheap Cotton T- shirt, FIN. TIMES, (Sep. 18, 2020), https://www.ft.com/content/703b360a- 1480 COLUMBIA BUSINESS LAW REVIEW [Vol. 2021] engage in more intense supplier identification, not only to check that “they are getting what suppliers promise,”186 but also to help deal with suppliers who are outright “uncooperative or untrustworthy.”187 Three types of tracing technology—isotope, microbiome, and tag—have been identified by the Center for Strategic and International Studies (CSIS), a non-partisan think-tank based in Washington D.C., as showing particular promise.188 Though the efficacy of these technologies has not been independently validated, the companies and organizations that piloted these technologies have shared results and other data with CSIS Human Rights Initiative (HRI).189 This Note will not examine tag tracing because it requires that “a marker be applied by each supplier a brand wants to identify[,]”190 something infeasible in Xinjiang due to the region’s inaccessibility.191 Cotton has been shown to have differing isotope ratios based on growth stage and region of the plant,192 and it also has different isotopic signatures based on its geographic 7536-4520-b9b8-3ee06fef5fcc (on file with the Columbia Business Law Review) (pointing out that brands offering ethically-made clothes “have every incentive to want their produce marked and traced, but many in Xinjiang . . . prefer to cover their tracks.”). 186 Id. 187 See Lehr supra note 45, at 9. 188 Id. 189 Id. 190 Id. at 11. 191 See NIKOS TSAFOS, ADDRESSING FORCED LABOR CONCERNS IN POLYSILICON PRODUCED IN XINJIANG, CTR. FOR STRATEGIC & INT’L STUD (2020), https://www.csis.org/analysis/addressing-forced-labor-concerns- polysilicon-produced-xinjiang [https://perma.cc/BKW7-3LNM]. 192 See DOUGLAS J. BEUSSMAN, NAT’L INST. OF JUST, THE ANALYSIS OF TRACE FORENSIC EVIDENCE USING ISOTOPE RATIO MASS SPECTROMETRY: DIFFERENTIATING FIBERS 4 (2017), https://www.ojp.gov/pdffiles1/nij/grants/251209.pdf/ [https://perma.cc/MC4M-FYCP] (“Another major problem is that there is limited visibility into the actual conditions under which polysilicon is produced. In part, this is because Xinjiang is inaccessible, so it is hard to get verifiable facts on the working conditions inside factories.”) No. 3:1438] WHERE WAS THIS T-SHIRT MADE? 1481 origin.193 The technique of isotope tracing can verify if cotton is actually from the claimed place of origin because it uses a chemical “fingerprint” that can be extracted from materials at any stage of the apparel supply chain, including finished goods.194 Fibers from the same source can be expected to have the same isotope ratio profile while fibers coming from different sources are likely to be differentiated even if they are made from the same chemical composition.195 For this technique to be effective, the chemical “fingerprint” has to be matched against a database, and a HRI investigation has shown that some service providers have databases that cover ninety percent of the cotton-growing regions of the world, including Xinjiang.196 The science behind the second type of tracing technology proposed—microbiome tracing—has been explained as simply as taking a cotton swab, wiping it across an article, and sequencing the DNA of the microbes it collects in order to find a blend of microscopic objects that is unlikely to occur anywhere else.197 Phylagen, a San Francisco-based firm in the supply chain track-and-trace market, claims to be “building the world’s largest environmental microbiome database . . . [by] working directly with its clients’ channel partners, usually located in the region where products originate.”198 While this type of tracing technology is similar to isotope tracing, it may be more effective in providing identifiable information for the players in the middle of the supply chain because “[d]ust with unique signatures gathers on a product 193 Id. 194 See Lehr, supra note 45, at 10. 195 See BEUSSMAN, supra note 192, at 42. 196 See Lehr, supra note 45, at 10. 197 See Paul Tullis, Using Dust and DNA to Trade Products All the Way Back to the Factory, SEATTLE TIMES (April 23, 2020, 1:01 PM), https://www.seattletimes.com/business/using-dust-and-dna-to-trace- products-all-the-way-back-to-the-factory/ [https://perma.cc/9ERG-JYWH]. After a product arrives at the end of the supply chain, often a warehouse, the package is opened and the inside swabbed. This sample would identify whether the product came from a prohibited region, such as Xinjiang. See id. 198 Id. (internal quotation marks omitted). 1482 COLUMBIA BUSINESS LAW REVIEW [Vol. 2021] at every facility it passes through and can be matched to microbiome signatures of known locations.”199 It should be noted that a weakness of the microbiome tracing technology lies in the volatility of the microbiome signatures—”[t]he dust data is not continuous from the [cotton] farm to the [completed] garment, and the intense processes cotton fibers are subject[ed] to, such as color dying, may erase [the dust signatures].”200 Lastly, the development of data-sharing platforms, which would exponentially increase knowledge sharing among industry players, would be a way to move the entire retail industry towards the collaborative model needed to face the inevitable passage of a potentially profit-wrecking bill such as the UFLPA. An obvious advantage to the utilization of data- sharing platforms would be to serve as a deterrent to untrustworthy suppliers because they can be identified as such on an industry-wide platform, damaging their reputations, which could lead to loss of clients.201 Repositories of shared data in the industry could also offer a chance to decrease or eliminate redundancies if multiple brands employ the same factories or suppliers. The most obvious challenge in the implementation of this type of industry-wide effort is that since retailers likely have their own audit standards,202 the type of information collected may not be standardized. From a technological standpoint, given a company’s specific needs, it may not wish to implement a system that is not customized out of fear of incompatibility, delays, privacy concerns, or security breaches.203 If this solution is to be seriously examined, industry standards should be created sooner rather than later with the help of powerful retail associations such as the AAFA, NRF, RILA, and the USFIA. 199 See Lehr, supra note 45 at 10. 200 Id. 201 Id. at 15. 202 Id. at 16. 203 Id. No. 3:1438] WHERE WAS THIS T-SHIRT MADE? 1483 V. CONCLUSION The most serious denunciation of the Uyghur situation in China was announced less than a month before the Trump Administration transitioned out of power with then-U.S. Secretary of State, Mike Pompeo, ordering a review to determine whether China’s repression of Uyghurs amounted to genocide.204 This designation would not only have served as a significant diplomatic and symbolic message following years of pressure from lawmakers and human rights organizations, but it also would have raised tensions between Washington and Beijing for the newly-elected Biden Administration.205 In February of 2021, however, the U.S. State Department’s Office of the Legal Advisor concluded that although “China’s mass imprisonment and forced labor of ethnic Uighurs in Xinjiang amounts to crimes against humanity[,] . . . there was insufficient evidence to prove genocide[.]”206 Wielding the word genocide lightly and without a solid legal basis carries the risk of politicizing and eroding the power of the 204 See Colum Lynch, Robbie Gramer & Amy Mackinnon, Pompeo Weighs Genocide Designation for China, FOREIGN POL’Y (Dec. 23, 2020, 1:53 PM), https://foreignpolicy.com/2020/12/23/pompeo-weighs-genocide- designation-china-uighur-xinjiang (on file with Columbia Business Law Review) (noting that the United States “rarely makes a formal declaration of genocide[,]” and if confirmed, “this would be the first genocide determination by the State Department since March 2016, when U.S. Secretary of State John Kerry determined that the Islamic State terrorist organization was ‘responsible for genocide’ against the region’s Yazidi, Christian, and Shiite Muslim minorities.”). To illustrate how serious making a genocide designation is, it should be noted that the State Department under the Obama Administration concluded “that it did not have sufficient evidence” to characterize “Syrian President Bashar al- Assad’s violent crack-down on civilians living in opposition-controlled territory that resulted in the deaths of hundreds of thousands of civilian” as genocide. Id. 205 Id. 206 Colum Lynch, State Department Lawyers Concluded Insufficient Evidence to Prove Genocide in China, FOREIGN POL’Y (Feb. 19, 2021, 11:36 AM), https://foreignpolicy.com/2021/02/19/china-uighurs-genocide-us- pompeo-blinken/ (on file with Columbia Business Law Review). 1484 COLUMBIA BUSINESS LAW REVIEW [Vol. 2021] designation,207 and the fact that former Secretary Pompeo did not make “a similar declaration about Myanmar and its treatment of the Rohingya population,”208 gives the impression that the decision not to designate China’s treatment of the Uyghurs a genocide was a political move. Regardless of the State Department’s conclusion, it is the Secretary of State, currently Anthony Blinken, who “wields the ultimate authority to make the final judgment.”209 During a press briefing on his first day on the job, Secretary Blinken stated that “[m]y judgment remains that genocide was committed against the Uighurs and that hasn’t changed[.]”210 It will be interesting to see if he decides to forge ahead with the designation despite his agency’s recommendation. It is clear that through their legislative efforts, U.S. lawmakers “believe an all-out bar is the way to tackle the problem,” yet they do not acknowledge that “it would be hugely difficult for the apparel sector to enforce the Act due to the sheer scale and complexity of its supply chains.”211 There are those who believe that companies should simply leave China altogether because, even if the decision hits profits and initially causes loss of revenue, it will help bolster their reputations with global consumers in the long term,212 and 207 Id. 208 See Bill Chappell, Pompeo Accuses China of Genocide Against Muslim Uighurs in Xinjiang, NPR (Jan. 19, 2021, 4:18 PM), https://www.npr.org/2021/01/19/958468971/pompeo-accuses-china-of- genocide-against-muslim-uighurs-in-xinjiang [https://perma.cc/V9V3- NA7S]. 209 Lynch, supra note 206. 210 See Humeyra Pamuk & David Brunnstrom, New U.S. Secretary of State Favors Cooperation with China Despite Genocide of Uighurs, REUTERS (Jan. 27, 2021, 4:08 PM), https://www.reuters.com/article/us-usa-china- blinken/new-u-s-secretary-of-state-favors-cooperation-with-china-despite- genocide-of-uighurs-idUSKBN29W2RC. [https://perma.cc/L8FR-2PEL]. 211 See Boycotting Xinjiang Cotton Will Be No Easy Feat, GLOB. DATA (Sep. 29, 2020), https://www.globaldata.com/boycotting-xinjiang-cotton- will-no-easy-feat/ [https://perma.cc/YLC6-75CV]. 212 See Elisabeth Braw, Why Western Companies Should Leave China, FOREIGN POL’Y (Feb. 17, 2021, 7:12 AM), https://foreignpolicy.com/2021/02/17/why-western-companies-should-leave- china/ (on file with Columbia Business Law Review) (pointing out that No. 3:1438] WHERE WAS THIS T-SHIRT MADE? 1485 such companies will not have to worry about “ending up in the increasingly busy line of geopolitical fire.”213 On the other hand, there are other experts who argue that these efforts by American lawmakers and President Trump during his administration “will have a limited impact unless other governments follow suit.”214 Their reasoning is that an article of clothing that cannot go to the United States due to the risk of detention can end up in regions such as Canada or Europe that lag behind the United States’ progress on the matter215 despite those countries’ strong pronouncements against the human rights situation in Xinjiang. Given the forceful renunciations from civil society, the U.S. government, other Western governments, and China’s own consumers,216 the pressure and scrutiny under which the retail industry finds itself are mounting with the passage of time and are unlikely to dissipate. On the one hand, global retailers can appease human rights advocates by shunning cotton from Xinjiang to protect their sales in the West. On the other, forsaking Xinjiang cotton carries the risk of angering Chinese consumers who view “the attention on the Uyghurs as a Western plot to sabotage China’s development.”217 Therefore, the retail industry needs to quickly find and implement solutions, such as the ones presented in this Note, “[c]itizens all over the West . . . have taken a radically dimmer view of China than was the case even a few years ago). A 2020 Pew Research Center found that 81% of Australians held unfavorable views of China (32% increase from 2017), as did, 85% of Swedes (49% increase), 74% of Britons (37% increase), 73% of Americans (47% increase), 73%of Canadians (40% increase), and 71% of Germans (53% increase). Id. 213 Id. (asking the rhetorical question of “[w]hat could be more negative than being associated with 21st century concentration camps?”). 214 See Working on the Chain Gang; Congress Is Moving To Block Goods Made with the Forced Labour of Uyghurs, supra note 38. 215 Id. 216 See Goodman et al., supra note 4 (discussing that certain statements from apparel companies regarding human rights abuses in Xinjiang has provoked anger among many Chinese consumers and reporting that, on Chinese social media, many people have posted photos of themselves throwing away their Nike-branded sneakers or covering the logos on their sweaters with tape). 217 Id. 1486 COLUMBIA BUSINESS LAW REVIEW [Vol. 2021] before its public image is further tarnished, and its imports are detained and prevented from entering the United States and other significant markets.218 218 See, e.g., China Could Be Designated as Perpetrator of Genocide in Xinjiang, GUARDIAN (Dec. 29, 2020, 2:59 PM), https://guardian.ng/features/china-could-be-designated-as-perpetrator-of- genocide-in-xinjiang/ [https://perma.cc/6XBL-BGCP] (noting that aside from the United States, other countries are taking a stance against China for the allegations of Uyghur forced labor such as France, which opposed the proposed Comprehensive Agreement on Investment deal between the European Union and China.); Meredith Rathbone & Nicholas Kimbrell, US Government Ramps Up Actions To Combat Forced Labor, STEPTOE INT’L L. ADVISORY, (Nov. 30, 2020). https://www.steptoe.com/en/news- publications/us-government-ramps-up-actions-to-combat-forced-labor.html [https://perma.cc/NH2F-MSFA] (noting that the European Union, United Kingdom, and Canada are considering imposing export controls and sanction restrictions on entities implicated in forced labor in the XUAR).