Tag

detention

Best PracticesCBPCounterfeitsImportIPR, Trademarks and LogosSeizuresU.S.Customs

U.S. Customs – Your Personal Policeman at the Border

posted by Jennifer Diaz December 6, 2016 2 Comments

counterfeitMany companies mistakenly believe that registering a trademark or copyright with the U.S. Government provides sufficient protection and remedies, and, therefore, do not take the extra step to record those trademarks or copyrights with U.S. Customs and Border Protection (U.S. Customs).

The processes achieve two completely different goals.

Registering a trademark with the U.S. Patent and Trademark Office (USPTO) or copyright with the U.S. Copyright Office gives public notice of one’s ownership of the trademark or copyright. On the other hand, the purpose of recording a trademark or copyright with U.S. Customs is to partner with the agency in preventing the unauthorized importation of merchandise that bears a recorded trademark or copyright. U.S. Customs prevents counterfeit and otherwise infringing products from entering or exiting the United States for registered trademark or copyright holders who have recorded their trademarks or copyrights with Customs. Continue Reading

Best PracticesCBPCurrency SeizureEventsImportU.S.Customs

Learn about “The ABC’S of Customs Seizures – PLUS Top 10 Tips to Ensure Import Compliance” From the Expert!

posted by Jennifer Diaz September 13, 2016 1 Comment

INTERNATIONAL TRADE COMPLIANCE:  The ABC’S of Customs Seizures – PLUS Top 10 Tips to Ensure Import Compliance 

The DTL Team wants to ensure you are a compliant with U.S. federal regulations and laws when importing your goods from abroad! Here is your chance to learn directly from our Founder, Jennifer Diaz, about the “dos” and “don’ts” of importing. compliance-image

On Wednesday, September 14th, 2016 from 1:00 pm to 2:00 pm, The Organization for Women in International Trade (OWIT) invites you to a Trade Talk Webinar Program on International Trade Compliance-Register NOW!

Did you know that In FY 2015, 28,865 seizures were for underlying Intellectual Property Rights (IPR) violations? The MSRP of the goods seized was $1,352,495,341! IPR enforcement is a priority trade initiative for U.S. Customs and Border Protection (CBP) and the detention and seizure process is a complicated one. If your merchandise is detained and/or seized, you have options. But more  Learn exactly how you should respond and more importantly how to avoid future problems with CBP.

This event is particularly important for: Continue Reading

Best PracticesCBPCPSCSeizures

Ongoing Hoverboard Concerns

posted by Jennifer Diaz January 27, 2016 1 Comment

The U.S. Consumer Product Safety Commission (CPSC) and U.S. Customs and Border Protection (CBP) Address Ongoing Litigation & Seizure of one of the hottest toys, the Hoverboard.

Hoverboards, as they are commonly known, are self-balancing two-wheeled electric scooters.  They are powered by controversial rechargeable batteries that have recently garnered attention for malfunctioning, causing devices to catch fire and destroy homes.  The lithium-ion batteries have been known to overheat, catch fire, and explode without warning.

Several airlines have begun to prohibit transportation of the boards aboard aircraft, due to safety concerns.  Amazon.com is placing safety first and offering consumers that have purchased a hoverboard from Amazon a full refund.  Hoverboards are also facing additional litigation from Mark Cuban, who potentially has a patent infringement claim against Walmart for selling the devices.

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Best PracticesCBPImportSeizuresU.S.Customs

Exports from China are on the Rise – What is your IPR Plan?

posted by Jennifer Diaz July 18, 2014 0 comments

made in ChinaOn April 11, amid a high demand for soccer apparel in preparation for FIFA World Cup, U.S. Customs and Border Protection (CBP) seized counterfeit soccer apparel shipped from China to the Port of Savannah. The value of the seized goods exceeded $1 million in manufacturer’s suggested retail price (MSRP). The apparel seized contained counterfeit trademarks of the following professional soccer clubs: Arsenal, Barcelona, Celtic, Chelsea, Mexican Federation, Paris Saint-Germain, and Real Madrid.  Little did they know they should have tried to import Germany’s soccer club’s apparel.

“You look at that Chelsea patch, and it just looks off,” said Steve Sapp, a spokesman for U.S. Customs and Border Protection. “The last B is smaller than the rest, and that’s the kind of thing you often see with these counterfeit goods. Our investigators know the signs that these goods aren’t real.”  Both images are provided below for you to see for yourself – check out the extra space at the top, and the “u” in club.

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Best PracticesCBPExportImport

PortMiami and CBP Join Forces to Bring Back (and Expedite) Transshipment

posted by Jennifer Diaz November 19, 2013 0 comments

Cargo shipPortMiami has been working feverishly to bring back transshipment to Miami.

Step one was PortMiami’s outreach to U.S. Customs and Border Protection (CBP).  PortMiami Director Bill Johnson wrote a letter to Acting CBP Commissioner, Thomas Winkowski, dated June 26, 2013, asking CBP to develop a pilot program, “with a transshipment inspection protocol pilot for PortMiami.”

According to PortMiami’s letter to CBP Commission Winkowski,  prior to 9-11, “transhipment made up over 22% of the cargo trade  at PortMiami.” Now, that transshipment cargo goes through Panama, Freeport, and Kingston. 

You may be asking, what’s the rationale for the move to other ports away from PortMiami?  Continue Reading

CBP

Seizure Averted – Why a Customs Lawyer is Essential at Detention

posted by Jennifer Diaz April 1, 2013 0 comments

Sitting with your head down moping about U.S. Customs and Border Protection (CBP) holding your goods is never the right answer!

Two days ago, a potential client called and explained that a valuable shipment was detained by CBP. The potential client asked if I could help recoup the goods from CBP, during this detention phase, or if they should wait.

When I get this question, I always want to scream, NOW!!  This is the most essential time an importer has.  Here’s the real question – do you want an expert in Customs law to assist you before your goods are guaranteed to be stuck in CBP for months, or work on getting them back for you NOW?!

I always request pertinent information about the commodity and the supposed rationale for the detention (if you don’t have this information yet, I help you get it). In this case, the potential client adamantly stated that the goods were legitimate, gray market goods; however, CBP was skeptical.

I advised the potential client that obtaining my services at this point would be the BEST option so I could clearly determine and explain to CBP the legitimacy of the merchandise and demand the release. After being hired, I immediately began working on the case due to the exigency of the circumstances. My tasks were to understand the basics of the commodity, learn the history of the product, and prove the legitimacy of the goods before CBP made a decision to seize them.

The consequences of not taking these immediate actions would be the potential seizure of the goods. More importantly, if the goods are seized by CBP, it could take several months (sometimes years) before they may be released.  The great news is within 1 business day I was able to convince CBP that the goods were in fact legitimate gray market goods, and they were released.  Waiting an extra week to get me involved would have been the difference between a detention by CBP (and release of the goods) or CBP’s seizure of the goods, and many months (or years) before the goods were released (with storage fees to pay!).

Thereafter, I worked with this client and discussed pre-compliance – which is especially important to understand why the detention occurred in the first place and how to avoid a similar situation from re-occurring. 

Hiring an expert in CBP laws, prior to the seizure of the merchandise saved this client much time and a considerable amount of expenses. If your business is going through a similar issue with CBP, contact me during the detention phase, preferably before the seizure notice is issued! 

Best PracticesCosmeticsFDA IssuesFoodFSMAImportImport AlertMedical Devices

FDA Discusses TOP Reasons for Detention of Goods

posted by Jennifer Diaz March 20, 2013 0 comments

At today’s Import Operations Training, sponsored by the U.S. Food and Drug Administration (FDA) and the Florida Customs Brokers and Forwarders Association (FCBF), top officials from FDA traveled to Miami to educate importers and brokers.  Topics ranged from a general overview of FDA compliance, TOP rationales for FDA detentions, Food Safety and Modernization Act (FSMA) updates, an overview of the newly re-organized (now DIO) Division of Import Operations (formerly DIOP – policy has now been removed), an overview of CBP & FDA’s Joint Team 488 – which handles liquidated damages claims for underlying FDA violations and much more. Highlights of the TOP rationale for detentions follows, as I feel this is of most value to you to know and is arranged by commodity.

Food Products Top Rationales for Detention

  • Manufacturer (processor, packer or person holding food product) is not registered with the FDA pursuant to the Bioterrorism Act.  (You can Register with the FDA here: www.FDA-USA.com)
  • Low Acid Canned Foods (LACF) are imported without establishment registration (FCE #) or scheduled process (SID #)
  • The products are subject to an Import Alert
  • Product labeling is not compliant (FDA does not pre-approve food labeling, it is up to importers to assure it is compliant before importing)
  • Common labeling violations include:
  1. Label is not in English
  2. Incorrect or missing statement of identity
  3. Failure to list allergens
  4. Failure to declare ingredients
  5. Failure to include a proper “Nutrition Facts” label (incorrect formats for Nutrition Facts labeling is also common) required by 21 C.F.R. 101.9
  6. Color additives are not declared correctly (or at all) on the label or not certified
  7. Food  additives are unsafe or not declared on the label

Dietary Supplements Top Rationales for Detention

  • The products are subject to an Import Alert
  • Product labeling is not compliant (FDA does not pre-approve dietary supplement labeling, it is up to importers to assure it is compliant before importing)
  • Common labeling violations include:
  1.  Label is not in English
  2. Unauthorized health claims
  3. Undeclared active ingredients
  4. Lacks a “Supplement Facts” panel required by 21 C.F.R. 101.36
  5. Failure to list the name of product and “Dietary Supplement” or “Herbal Supplement” on the label
  6. Failure  to list the appropriate disclaimer necessary when claims are made

Cosmetics Top Rationales for Detention

  • The cosmetics are subject to an Import Alert (for example IA 66-38 for cosmetics labeled with drug claims)
  • The cosmetics are contaminated and unsafe to use
  • The cosmetics are manufactured under unsanitary conditions
  • The cosmetics contain a non-permitted color additive
  • Product labeling is not compliant (FDA does not pre-approve cosmetic labeling, it is up to importers to assure it is compliant before importing)
  • Common labeling violations include:
  1.  Label is not in English
  2. Labeling is missing ingredients
  3. Label lacks warnings and adequate directions for use
  4. Missing the net quantity of contents
  5. Cosmetic  contains a “drug” claim

Drugs Top Rationales for Detention

  • The cosmetics are subject to an Import Alert (for example IA 66-41 – Unapproved new drugs)
  • Drugs are not registered or listed with the FDA
  • Product labeling is not compliant (FDA does not pre-approve drug labeling, it is up to importers to assure it is compliant before importing)
  • Common labeling violations include:
  1. Label is not in English
  2. Label does not contain adequate directions for use
  3. Active Pharmaceutical Ingredients (API) is not properly labeled or listed
  4. Drug contains a “new” chemical or a different dosage making the product a “new drug”

Medical Devices Top Rationales for Detention

  • The manufacturers is not registered with the FDA
  • The initial importer is not registered with the FDA
  • The device is not listed with the FDA
  • The product does not contain a 510k or PMA
  • Product labeling is not compliant (FDA does not pre-approve medical device labeling, it is up to importers to assure it is compliant before importing)
  • Common labeling violations include:
  1. Label is not in English
  2. Label is false or misleading 

Bottom line, as you can see, it is up to you, the importer to perform pre-compliance and assure you get compliance right before you import.  FDA expects you to know the requirements and has little mercy if you don’t.  Assure you stay compliant and avoid the top rationale for FDA to detain your goods by hiring someone that is extremely knowledgeable with FDA’s laws and regulations and continually stays up to date with the constant changes. 

CBP

CBP Brings Seizure & Forfeiture Notices to the 21st Century

posted by Jennifer Diaz February 1, 2013 0 comments

Co Authored by Michael DeBiase.

U.S. Customs and Border Protection (“CBP”) has published a final rule (the “Rule”) providing CBP with the ability to publish seizure and forfeiture notices on the Department of Justice (“DOJ”) forfeiture website.  CBP believes that such notices will reach a broader range of the public, at less cost, than the current local print publications or customhouse postings.  

You know what?  CBP is right, and kudos to them for this added efficiency that goes into effect on February 28 of this year.     

Pursuant to the Rule, CBP will post all seizure and forfeiture notices for thirty (30) consecutive   days on the DOJ’s site.  Thereafter, CBP may still publish notice in print form when it deems such additional outreach appropriate.   

The beauty of the Rule is that it provides a vehicle by which both the government and the party interested in the seized goods to share in the greater efficiency, streamlined procedures, and reduction in costs offered by giving electronic notice.  This will also make it easier for the interested parties to assert claims for the seized property.

This is a change that needed to happen, and although the process and site will surely experience “growing pains”, the efficiency and cost savings should prove well worth it.

If you do receive a seizure notice, remember, you must file a Petition within 30 days of the seizure notice or, if seeking judicial review of the seizure, file a claim and cost bond equal to 10% of the value of the seized merchandise, up to a maximum of $5,000.

For a summary of the seizure process, review our blog "U.S. Customs Seized My Merchandise, Now What?"

We leave you with our top 3 tips:

  1. Perform Pre-Compliance PRIOR to importing merchandise into the U.S.  Assure the merchandise you will import is compliant with applicable laws/regulations.
     
  2. If CBP detains your products, contact a knowledgeable customs attorney or customs broker to actively demonstrate that there is no violation.  Getting the case resolved in the detention phase is essential.  Otherwise, the seizure case will be much more costly and timely.
     
  3. If CBP seizes your products, make sure your customs attorney knows the policies, procedures, and practices of CBP to effectively pursue the release of the merchandise.
U.S.Customs

How I Helped Release $2.5 Million Stuck in Customs

posted by Jennifer Diaz May 3, 2012 0 comments

Jennifer DiazBefore beginning a career in international trade, I did not ever stop to think that the t-shirt I was wearing or dishes I was using were likely made elsewhere, and went through a long complicated logistics supply chain in order to reach my local store. Little did I know that when anything goes wrong in that complicated supply chain, it would be my job to help. Recently, a client had over 2.5 million dollars worth of electronic merchandise on hold by U.S. Customs and Border Protection (Customs) for alleged intellectual property rights violations. In plain English, Customs was under the impression my client was trying to import goods with trademarks or logos they did not have the authorization to import.

When you see the symbols below, make sure you think about LICENSES to use them!!

For this client, this was a lot of money at stake, and it could have put them out of business if we did not come up with a quick solution. Instead of thinking of the band aid type solution, to solely fix this issue, we came up with a compliance plan for the client to use going forward, that would also help solve the current issue.

The compliance plan involved both a short term and long term solution. In the short term, the goal was to have the 2.5 million dollars worth of merchandise released ASAP. To accomplish this goal, we had to prove to Customs that our client had the appropriate authorization from the relevant trademark holders. (Good time for you to check over your trademark licenses, are they all in place?  Do you have easy access to them if Customs comes a knockin’?)

For the long term solution, we began to work with Customs to prove that the client was a reputable importer. In this case, actions spoke much louder than words. Instead of telling Customs our client was compliant, we were able to produce documentation, and develop a relationship with the appropriately picked personnel in Customs. Through this relationship, we started a new process where the client utilized a pre-compliance program with Customs for all new products the client would import. This pre-compliance program included Customs review and internal track keeping of the client’s new products and relevant license agreements. This way, Customs had a first hand sneak peak at the new products and any potential issues would be addressed before, not after importation.

I am happy to report that all of my clients 2.5 million dollars worth of merchandise was released, and in a relatively short period of time. To date, all products that were pre-approved by Customs are typically immediately released by Customs and do not go through additional timely intensive exams.

Have you ever had a shipment on hold? What type of compliance programs do you have in place? I’d love to hear your stories, email me!

FoodFSMA

FDA Administrative Detention of Food… What can you do?

posted by Customs & International Trade Law Blog March 9, 2012 1 Comment

Just a few weeks ago, FDA investigators ordered an administrative detention of a Maine company’s cold-smoked salmon product, a ready-to-eat food, during an inspection. Once the food was detained, Mill Stream Corp. agreed to voluntarily destroy the cold-smoked salmon, under FDA supervision, after inspectors found Listeria monocytogenes within the company’s facility and on its processing equipment.

Similarly, in October 2011, U.S. Marshals seized food products held at the food storage and processing facility of Dominguez Foods of Washington, Inc., in Zillah, Wash., where the seized products had first been subject to a detention order issued by FDA, following an FDA inspection of the facility that found evidence of widespread and active rodent and insect infestation in the facility’s warehouse and processing area.

 

These administrative food detentions are becoming more and more widespread and this trend is not accidental. The January 2011 amendment to the FDA Food Safety Modernization Act (FSMA) granted the FDA a far broader authority than in years past to administratively detain foods suspected of adulteration or misbranding.    According to Dara Corrigan, the FDA’s Associate Commissioner for Regulatory Affairs:

The FDA will not hesitate to take immediate steps to protect the public’s health.  We will aggressively use our enforcement tools to prevent potentially adulterated food from reaching the public.

Previously, the FDA’s ability to administratively detain food products for humans or animals applied only when the agency had credible evidence that the food or feed presented a threat of serious adverse health consequences or death to humans or animals. With this expanded administrative detention authority, the FDA is now able to detain food and feed products that it has reason to believe are adulterated or misbranded. An administrative detention may last up to 30 calendar days, if needed, during which time the FDA determines whether an enforcement action is required, such as seizure of products or federal injunction against a firm.
 

Appealing an administrative detention is an option for claimants who act fast! After receiving the administrative detention order, an owner of perishable foods must file an appeal within two (2) calendar days and the owner of non-perishable foods has four days to file a notice of intent to file an appeal and to request a hearing with the actual appeal due within ten (10) calendar days of the receipt of the administrative detention order. A timely appeal filed correctly can result in a quicker termination of the administrative detention and thus, the return of the food article. Furthermore, it grants the owner of the food articles the opportunity to present evidence supporting the legitimacy of the detained food rather than to simply be at the mercy of the inspectors.

 

For more information, visit the recently published guide entitled “What You Need to Know About Administrative Detention of Foods, available at http://www.fda.gov/Food/guidanceComplianceRegulatoryInformation/GuidanceDocuments/FoodDefenseandEmergencyResponse/ucm276871.htm

 

As always, if you are unsure, consult with a professional. Failure to appeal an administrative detention of food can result in seizure. Moreover, not only may you lose the food you intended to sell, but also get fined by the U.S. Government.