Something Wicked This Way Comes: The United States Government's Response to Unsafe Imported Chinese Toys and Subsidized Chinese Exports

By McBride, Scott D. | Texas International Law Journal, Fall 2009 | Go to article overview

Something Wicked This Way Comes: The United States Government's Response to Unsafe Imported Chinese Toys and Subsidized Chinese Exports


McBride, Scott D., Texas International Law Journal


By the Pricking of My Thumbs,

Something Wicked This Way Comes

MacBeth, Act IV, Scene I

by William Shakespeare

Author's Foreword

There are numerous challenges facing the People's Republic of China (China) in the coming months and years, not the least of them being the global recession facing every major industrial importer and exporter in China and the United States. Furthermore, this journal, and the related symposium, could devote abundant page space and panel hours for discussion of at least two issues specific to trade with China: China's undervaluation of its currency' and its tepid enforcement of intellectual property laws.2 There are dozens, perhaps hundreds, of scholarly notes, newspaper articles, blogs, and websites devoted to these topics, and the significance of these issues cannot be understated. It is not the purpose of this article to imply in any way that these issues are not of the utmost importance.

In light ofthat disclaimer, however, the United States has recognized over the last few years additional matters of great importance pertaining to the importation of Chinese merchandise. As a result, new mandatory restrictions on Chinese imports are now in place to better protect U.S. consumers from unsafe toys and other products commonly used by children. Further, in order to protect American businesses from unfair trade practices, the U.S. government is actively applying duties to imported merchandise that has been found to be subsidized by the Chinese government. This article reviews these new developments in law and enforcement measures, anticipating that these recent changes will have a significant impact on Chinese trade with the United States for the foreseeable future.

I. THE CONSUMER PRODUCT SAFETY IMPROVEMENT ACT

On August 14, 2008, President George W. Bush signed into law the Consumer Product Safety Improvement Act of 2008 (CPSIA).3 This law implemented many new safety requirements for U.S. imports and assigned the Consumer Product Safety Commission (the Commission) the Herculean task of addressing all of these requirements quickly and effectively. As this article will show, the CPSIA was an unequivocal response to an enormous amount of toy and consumer product recalls during the years preceding its passage, and has since been the target of both praise and criticism. Without question, the CPSIA owes its very existence to the failures of American toy designers, Chinese toy manufacturers, and to a certain extent, the Chinese government's ineffective enforcement of its laws. This section explains some of the changes implemented by the CPSIA and the need for Congress and the new administration to take certain measures to better protect U.S. consumers from unsafe Chinese exports.

A. 2007 and 2008: The Years of the Recall

From a public health and public relations standpoint, the years 2007 and 2008 were not the best for importers of Chinese toys. For example, on August 14, 2007, Mattel, Inc. recalled 7.3 million Polly Pocket dolls and accessories over concerns about small magnets that could be dislodged and swallowed or aspirated by small children- leading to intestinal perforations or worse.4 Several children were injured by these products, all of which had been manufactured in China.5 In the following months, other companies selling Chinese toys with similar design flaws recalled their products from American store shelves.6

These recalls were not, however, limited to toys containing magnets. In fact, the greatest source of recalled toys involved those with paint containing an excessive amount of lead.7 American parents were horrified to learn that hundreds of products bearing the likeness of beloved animated characters contained unsafe levels of lead prohibited by federal law, including Barbie,8 Cinderella,9 Tinker Bell,10 Elmo, Cookie Monster, Big Bird, Dora the Explorer, Diego," and Thomas the Tank Engine.12 All of these toys were geared toward children, all had the potential of finding their way into the mouths of those children, and all were manufactured in China. …

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