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1. The Importation and Exportation
of Foods
Jimmy Stepanian

2. Importation
• FDA and US Customs share jurisdiction over
imported food products
• Foods may be imported into the US so
long as they meet the same standards
as foods produced in US.
• USDA – Jurisdiction over imported meat
products
– Pursuant to 1906 Meat Inspection Act

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

4. Registration
• Food products which are imported into the
United States are require to meet all
applicable requirements at the time of
importation
• Must be conforming at the time they are
offered for entry into the US
• Not adulterated or misbranded

5. Importation
• Certain types of foods must comply with
registration requirements:
– Specified dairy products (acidified milks,
yogurts, cultured products
– Low acid foods
– Acidified foods
– Meat processing facilities
• Must be manufactured according to
specific processes

6. Entry and Sampling
• Shipment must be filed with Customs
within 5 days
• Customs notifies FDA if food product
• Notice to proceed or, Notice of Sampling
• Registered foods almost certain to be
sampled

7. Entry and Sampling
• Notice of Detention if nonconforming
• Notice of Refusal if nonconforming
after sampling
• Shipment destroyed unless exported
within specified time

8. Importer’s Options if Refused
• Request hearing, within 10 days, to defend
acceptability
• Permission to re-label or re-condition (IBP)
• Export shipment
• Request judicial review of Notice of Refusal

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

10. Export Option
• Shipper has option after FDA condemnation
of exporting the nonconforming goods as
alternative to destruction if:
– Adulteration (or misbranding) did not occur
after importation
– Importer had no knowledge of the
nonconformity
– Shipment is not otherwise in violation of US law

11. Exportation
• Goods intended for export need not meet FDA
requirements if:
– Products meets specs of importing country
– Not in conflict with laws of importing country
– Labeling of shipment clearly indicates that it is for
export
• Export Exemption

12. Export Exemption
• Is US “less concerned” with safety of products
intended for export?
• Exempts exports from jurisdiction of FDA?
• Distribution into interstate commerce, nullifies
the exemption
• Referred to as the “commodity dumping”
provision (Thalidimide, DES, Cyclamates)

13. Export Exemption
• How does exporter prove shipment
complies with exemption
requirements?
• Export Certificate issued by “Official”
in importing country

14. Examples
Exporter wants to ship dried figs to Australian importer who
uses them in coffee flavors. FDA seizes shipment because
contaminated by worms and therefore “Adulterated”.
What result?
FDA alleges contaminated figs = “impure material” under
Australian law.
What result?

15. US v Catz American 53 F. 2d. 425
• Importer has options of re-conditioning
goods to make them conform to Australian
law or can divert them to some permitted
use.
• So long as it is possible for the goods to
comply with importers laws, US will allow
exportation

16. Query:
• Agents Scully and Mulder tipped off
• about Progressive Inc., who is discounting
nonconforming “alien frog legs” which were
refused entry into US, to salvage purchasers
• Salvage purchasers selling frog legs in interstate
commerce at premium prices
• FDA wants to seize and condemn shipment
• Progressive asserts export exemption as defense
• What result?
US v. 76,552 Pounds of Frog Legs

17. Banana Wars
• 1980 Bananas big business
• 1993 EU introduce preference for
bananas from former colonies (404/93
Regime)
• Latin America countries protested and
negotiations began but not binding
• 1995 WTO established (rulings binding on
members)

18. Bananas Producers

19. Banana Wars
• 1996 Chiquita, Dole, Del Monte gave $5 Million in
contributions to Democrats and Republicans
• Same year US rep challenged EU preference for
bananas from former EU colonies
• Bananas from former EU colonies allowed into EU
tariff free
• Preference established as reparations for ills
of European colonization of Africa and others

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

21. Banana Wars
• 1997 WTO (under US pressure) ruled in favor
of US
• Said EU preference was “violation of
international law”
• Chiquita’s right to make a profit superseded
preference for former EU colonies farms
• WTO appellate body upheld decision against
the EU

22. Banana Wars
• EU responded by establishing a “new scheme”
which tried to get around WTO problems with
preference (first come/first serve policy)
• 1999 - US responded by imposing 100% tariff
(worth 1 billion dollars to EU markets) on a list
of EU exports to US
• Mostly EU luxury items

23. Banana War Tariffs
• Pecorino Cheese
• Sweet biscuits, waffles
• Bath preparations and
salts
• Candles
• Handbags, and plastic
coated items normally
carried in handbags
• Greeting cards
• Cashmere clothes
• Paper boxes and
cartons
• Cotton bed linen
• Metal chandeliers and
other light fixtures
• Danish hams

24. Banana Wars
• April 2001 Banana Wars resolved
• US agreed to drop tariffs on EU exports
• EU agreed to drop preference
–Quota for bananas from former colonies
decreased
–Quota for US produced bananas increased
• Almost forced Chiquita into bankruptcy
• Lost 40% of its share of EU market