NCBFAA Comment Letter to FDA Suggests Caution When Defining Importer

Roger Clarke

Phone: (310) 834-6458

Jon Kent
Phone: (202) 223-6222

For Immediate Release

Washington, DC: In a letter today to the U.S. Food and Drug Administration (FDA), the National Customs Brokers & Forwarders Association of America, Inc. (NCBFAA) President Jeffrey Coppersmith commented on the FDA's implementation of the Food Safety Modernization Act, which places primary responsibility for the safety of imported food on the people who have knowledge and control over the supply chain. In the NCBFAA’s view, these are the U.S. owner, the consignee who purchases the product, or a U.S. person who specifically takes on the role as the agent of the foreign owner for this purpose.
“It will not serve the goals of the Act to place this responsibility on third-parties [customs brokers],” President Coppersmith said, “simply because they are at a convenient point in the supply chain, yet are not in a position to know first-hand details about the product or to control who supplies the product.”
When attempting to clarify who is an importer under the Act, President Coppersmith encouraged the FDA to consider the following:

  • Choose Substance over Form: In general, the "importer" should be a person with a financial interest in the product and the FDA should not rely exclusively on terms, such as consignee, agent, or importer-of-record, which are used in different ways in different contexts.
  • No Agency By Default: Because the responsibilities of being a U.S. agent for a foreign food supplier are significant, FDA should require affidavits signed by both parties accepting this specific role for the purpose of FDA food importations and no one should have that responsibility forced on them by virtue of their presence in the supply chain.
  • Recognize the Commercial Role of the Parties: A customs broker is not an importer with a financial interest in the importation and confusing the two is like confusing the travel agent with the traveler.
  • Do Not Mix Apples and Oranges: In defining the term "importer", "consignee" or "agent" for determining the admissibility of food products, FDA must take care not to confuse definitions and terms used for other purposes under other statutes. 
       “We think the importer for FDA purposes should be the person who caused the goods to come to the U.S. - that is, the party in the U.S. with a financial interest in the product or a U.S. agent designated by a foreign manufacturer or supplier through a specific written agreement between the foreign entity and the U.S. agent and filed with the FDA,” wrote President Coppersmith.
“Either of these parties should be required to register with the FDA and receive a registration number, which would be provided at the time of entry,” he wrote. “This would provide the certainty required for FDA and would ensure that a true party in interest is responsible for the food product.”
        Headquartered in Washington, DC, the NCBFAA represents nearly 800 member companies with 100,000 employees in international trade - the nation's leading freight forwarders, customs brokers, ocean transportation intermediaries (OTIs), NVOCCs and air cargo agents, serving more than 250,000 importers and exporters. Established in 1897 in New York, NCBFAA is the effective national voice of the industry. Through its various committees, counsel and representatives, the Association maintains a close watch over legislative and regulatory issues that affect its members. It keeps them informed of these and other related issues through its weekly Monday Morning eBriefing, and various meetings and conferences throughout the year.
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