As summer draws to a close, and Congress returns to work following its annual August recess, the agenda in Washington is beginning to take shape – and it looks to be a busy four months. The most pressing matter to be taken up post-recess is the avoidance of a lapse in government funding – Congress has until September 30th to reach an agreement that would avert a shutdown. Tensions on the Hill have been exacerbated by the Administration’s recent “pocket rescission” of funds previously appropriated by Congress, though it appears that leadership from both parties retains some optimism that they’ll be able at least to advance a temporary funding measure that would keep the government operating while they work towards a longer-term spending package.
In the meantime, however, there are a number of items that should be on your radar.
USTR’s Annual Notorious Markets Review -
Member Input Requested
On August 18th, the Office of the United States Trade Representative published a request for comments in connection with the agency's annual Special 301 Out-of-Cycle Review of Notorious Markets.
The Notorious Markets report shines a spotlight on marketplaces that reportedly engage in or facilitate substantial copyright piracy or trademark counterfeiting, and whichare seen as presenting the most significant concerns to intellectual property owners. USTR seeks to encourage the owners and operators of those markets to implement more effective policies and procedures for combating illicit sales, and in turn, to foster legitimate commerce.
We are currently gathering IACC members' feedback regarding the challenges you're facing in connection with both online and brick and mortar marketplaces, and would greatly appreciate your support in preparing comments for consideration by USTR.
To that end, I'd ask that you take a few minutes to review our 2024 submission by the IACC, and complete the brief 2025 Questionnaire below for each marketplace that you would recommend for inclusion on USTR's Notorious Markets List.
Any input provided in connection with this matter will be treated as confidential; the aggregated feedback will be communicated to USTR without attribution or other reference to the participating companies who have provided it.
The deadline for submission of comments to USTR is Wednesday, October 1st. Accordingly, I'd ask that you please provide any input no later than Friday, September 19th in order to ensure that we have sufficient time to consider your input.
If you have any questions regarding this matter, please reach out to me at your earliest convenience.
Historically, the rationale underlying the “de minimis” exemption has been that the burden of processing low-value imports outweighed the value of enforcing potential violations of trade laws related to such shipments. In recent years however, the less stringent procedures for small consignments have been viewed as contributing to the influx of counterfeits and other illicit goods flooding the domestic market.
CBP underscored those concerns, noting that, “In FY 2024 alone, de minimis shipments accounted for 98% of narcotics seizures by case count, 97% of counterfeit goods seizures — totaling over 31 million fake items, and 77% of health and safety seizures, including weapons parts and fentanyl precursors.” More information related to CBP’s implementation of the Executive Order is available here.
This action represents a dramatic change to the trade landscape, and there is a great deal of uncertainty regarding the full implications of this policy change. We will continue to monitor the impacts of the new policy as they relate to the enforcement of IP rights at the border.
Senate and House Introduce Legislation to Expand CBP Authority to Partner with Stakeholders on IP Enforcement
On August 1st, just prior to the Senate’s departure for August recess, Senator Chuck Grassley (R-IA) and Senator Maggie Hassan (D-NH) introduced S. 2677, a bill amending 19 USC 1628a to expand and clarify CBP's authority to share information with stakeholders in connection with their enforcement of IP rights at the border. The text of the bill is identical to S. 5160 from last Congress, which passed the Senate during last year’s Defense Authorization process.
The following week, Rep. Blake Moore (R-UT) and Rep. Brad Schneider (D-IL), introduced identical companion legislation – H.R. 4930 – in the House of Representatives.
A “one-pager” detailing the proposed changes that would take effect if the bills are enacted (and the underlying rationale for those changes) is available here. Additional background re: the history of these issues is available here.
The IACC has been working closely with the sponsors to advance this legislation, and organized a letter of support which was joined by a dozen stakeholder organizations.
We are currently engaging with members of the committees of jurisdiction (Senate Finance Committee and the House Ways and Means Committee) to raise awareness on these issues, and to urge Congress to advance the legislation. We would welcome your support in connection with these efforts – particularly if your company has operations in the state / district of Finance or Ways & Means Committee members.
If you’d like to discuss how your company can get involved, please contact me directly, and I’d be happy to speak with you further.
INFORM Consumers Act Implementation
On August 20th, Senator Dick Durbin (D-IL) and Senator Bill Cassidy (R-LA) delivered a letter to the Federal Trade Commission requesting information related to the agency’s implementation and enforcement of the INFORM Consumers Act. That law, which took effect in June of 2023, was aimed at increasing transparency in the e-commerce space by requiring online marketplaces to verify the identities of high-volume third party sellers.
The senators expressed concerns that, since the law took effect, “there has been no indication that the FTC has commenced any investigations or enforcement actions under the Act, Federal or state prosecutors do not appear to have brought any cases against third-party sellers for engaging in illegal activity, such as stealing or counterfeiting goods and selling or attempting to sell them on online marketplaces … The FTC also has not yet used its authority under the INFORM Consumers Act to promulgate regulations with respect to the collection, verification, or disclosure of information under the Act.”
The letter to the FTC was followed by outreach to 46 online marketplaces seeking information regarding those companies’ own actions to implement the requirements set forth in INFORM, and their interactions with the FTC since the law took effect.
Approximately two weeks after the Senators’ letter to the Commission, the agency announcedthat it had reached a $2 million settlement in connection with alleged INFORM Act violations. The FTC’s press release confirmed that this was their first such action since the law’s enactment. To the best of our knowledge, no state attorneys-general have made use of the authority provided under INFORM.
IACC Supports FDA Proposals to Enhance Patient Safety
The IACC recently signed on to a letter to House and Senate leadership in support of a Food and Drug Administration legislative proposal that would expand the agency’s authority to require the destruction of dangerous products including pharmaceuticals, medical devices, and other products within the FDA’s purview, when those products have been denied entry at the border. At present, importers of such products are permitted to re-export the goods; in such cases, the individuals may simply try their luck again, creating additional (and unnecessary) work for our partners at U.S. Customs and Border Protection, and exposing consumers to unwarranted risks should the goods escape detection again. We view the FDA’s proposal as a commonsense tool to enhance public safety, and look forward to working with the Partnership for Safe Medicines and others to advance this proposal.
International AntiCounterfeiting Coalition, 727 15th Street NW, 9th Floor, Washington, District of Columbia 20005, United States
