118 S1421 RS: Country Of Origin Labeling Online Act U.S. Senate 2023-12-13 text/xml EN Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain.
IICalendar No. 289118th CONGRESS1st SessionS. 1421IN THE SENATE OF THE UNITED STATESMay 3, 2023Ms. Baldwin (for herself, Mr. Vance, Mr. Scott of Florida, Mr. Hawley, Mr. Braun, and Mr. Brown) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and TransportationDecember 13, 2023Reported by Ms. Cantwell, with an amendmentStrike out all after the enacting clause and insert the part printed in italicA BILLTo require origin and location disclosure for new products of foreign origin offered for sale on the internet.
1.
Short title
This Act may be cited as the Country Of Origin Labeling Online Act or the COOL Online Act.
2.
Mandatory origin and location disclosure for new products of Foreign origin offered for sale on the internet
(a)
Mandatory disclosure
(1)
In general
(A)
Disclosure
Subject to subparagraph (B), it shall be unlawful for a product that is marked or required to be marked under section 304 of the Tariff Act of 1930 (19 U.S.C. 1304) to be introduced, sold, advertised, or offered for sale in commerce on an internet website unless the internet website description of the product indicates in a conspicuous place—(i)the country of origin of the product (or, in the case of a multi-sourced product, the countries of origin), in a manner consistent with the regulations prescribed under such section 304; and(ii)the country in which the seller of the product has its principal place of business.(B)
Exclusions
(i)
Agricultural products
The disclosure requirements under clauses (i) and (ii) of subparagraph (A) shall not apply to—(I)a covered commodity (as defined in section 281 of the Agricultural Marketing Act of 1946 (7 U.S.C. 1638));(II)a meat or meat food product subject to inspection under the Federal Meat Inspection Act (21 U.S.C. 601 et seq.);(III)a poultry or poultry product subject to inspection under the Poultry Products Inspection Act (21 U.S.C. 451 et seq.); or(IV)an egg product subject to regulation under the Egg Products Inspection Act (21 U.S.C. 1031 et seq.). (ii)
Food and drugs
The disclosure requirements under clauses (i) and (ii) of subparagraph (A) shall not apply to a food or drug (as those terms are defined in paragraphs (f) and (g), respectively, of section 201 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321) that is subject to the jurisdiction of the Food and Drug Administration. (iii)
Used or previously owned articles
The disclosure requirements under clauses (i) and (ii) of subparagraph (A) shall not apply to any used or previously owned article sold by an internet website marketplace or a seller on an internet website marketplace. For the purposes of the preceding sentence, the term used or previously owned article means an article that was previously sold or offered for sale at retail. (iv)
Small seller
The disclosure requirements under clauses (i) and (ii) of subparagraph (A) shall not apply to goods listed by a small seller. For the purposes of the preceding sentence, the term small seller means a seller with annual sales of less than $20,000 and fewer than 200 discrete sales. (C)
Multi-sourced products
For purposes of subparagraph (A)(i), a product shall be considered to be a multi-sourced product if a seller offers for sale a finished product, identical versions of which are produced in multiple countries. (2)
Certain drug products
It shall be unlawful for a drug that is not subject to section 503(b)(1) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 353(b)(1)) and that is required to be marked under section 304 of the Tariff Act of 1930 (19 U.S.C. 1304) to be offered for sale in commerce to consumers on an internet website unless the internet website description of the drug indicates in a conspicuous place the name and place of business of the manufacturer, packer, or distributor that is required to appear on the label of the drug in accordance with section 502(b) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 352(b)). (3)
Obligation to provide
A manufacturer, importer, distributor, seller, supplier, or private labeler seeking to have a product introduced, sold, advertised, or offered for sale in commerce shall provide the information identified clauses (i) and (ii) of paragraph (1)(A) or paragraph (2), as applicable, to the relevant retailer.(4)
Safe harbor
A retailer or a seller on an internet website marketplace satisfies the disclosure requirements under clauses (i) and (ii) of paragraph (1)(A) or paragraph (2), as applicable, if the disclosure includes the country of origin and seller information provided by a third-party manufacturer, importer, distributor, seller, supplier, or private labeler of the product. (b)
Enforcement by the Commission
(1)
Unfair or deceptive acts or practices
A violation of subsection (a) shall be treated as a violation of a rule prescribed under section 18(a)(1)(B) of the Federal Trade Commission Act (15 U.S.C. 57a(a)(1)(B)).(2)
Powers of the Commission
(A)
In general
The Commission shall enforce this section in the same manner, by the same means, and with the same jurisdiction, powers, and duties as though all applicable terms and provisions of the Federal Trade Commission Act (15 U.S.C. 41 et seq.) were incorporated into and made a part of this section.(B)
Privileges and immunities
Any person that violates subsection (a) shall be subject to the penalties and entitled to the privileges and immunities provided in the Federal Trade Commission Act (15 U.S.C. 41 et seq.) as though all applicable terms and provisions of that Act were incorporated and made part of this section.(C)
Authority preserved
Nothing in this section may be construed to limit the authority of the Commission under any other provision of law.(3)
Interagency agreement
Not later than 6 months after the date of enactment of this section, the Commission, the U.S. Customs and Border Protection, and the Department of Agriculture shall—(A)enter into a Memorandum of Understanding or other appropriate agreement for the purpose of providing consistent implementation of this section; and (B)publish such agreement to provide public guidance. (4)
Definition of Commission
In this subsection, the term Commission means the Federal Trade Commission.(c)
Limitation of liability
A retailer or seller is not in violation of subsection (a) if—(1)a third-party manufacturer, distributor, seller, supplier, or private labeler provided the retailer or seller with a false or deceptive representation as to the country of origin of a product or its parts or processing; and(2)the retailer or seller—(A)relied in good faith on that representation; and (B)took immediate action to remove any such false or deceptive representations upon notice. (d)
Authority preserved
Nothing in this section may be construed to limit the authority of the Department of Agriculture, the Food and Drug Administration, or U.S. Customs and Border Protection under any other provision of law. (e)
Effective date
This section shall take effect 12 months after the date of the publication of the Memorandum of Understanding or agreement under subsection (b)(3).
1.
Short title
This Act may be cited as the Country Of Origin Labeling Online Act or the COOL Online Act.
2.
Mandatory origin disclosure for new products of Foreign origin offered for sale on the internet
(a)
Mandatory disclosure
(1)
In general
(A)
Disclosure
Subject to the succeeding provisions of this paragraph, it shall be unlawful for an online store, an online marketplace, or a seller to introduce, sell, or offer for sale on an internet website a product that is marked or required to be marked under section 304 of the Tariff Act of 1930 (19 U.S.C. 1304) unless the country of origin is disclosed in a conspicuous manner on the online store or online marketplace’s online description of the product and in a manner consistent with the regulations prescribed under such section 304 at the time of the product’s importation, or anticipated importation, into the customs territory of the United States. (B)
Exclusions
(i)
Agricultural products
The disclosure requirements under subparagraph (A) shall not apply to—(I)a covered commodity (as defined in section 281 of the Agricultural Marketing Act of 1946 (7 U.S.C. 1638));(II)a meat or meat food product subject to inspection under the Federal Meat Inspection Act (21 U.S.C. 601 et seq.);(III)a poultry or poultry product subject to inspection under the Poultry Products Inspection Act (21 U.S.C. 451 et seq.); or(IV)an egg product subject to regulation under the Egg Products Inspection Act (21 U.S.C. 1031 et seq.). (ii)
Food and drugs
The disclosure requirements under subparagraph (A) shall not apply to a food or drug (as those terms are defined in paragraphs (f) and (g), respectively, of section 201 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321)) that is subject to the jurisdiction of the Food and Drug Administration. (iii)
Used or previously owned products
The disclosure requirements under subparagraph (A) shall not apply to any used or previously owned products sold in interstate commerce. (iv)
Small seller
The disclosure requirements under subparagraph (A) shall not apply to goods listed by a small seller. (C)
Limitation of liability
(i)
Online store
An online store is not in violation of the requirements under subparagraph (A) if the online store provided its third party manufacturer, distributor, supplier, or private labeler with—(I)a notice of their obligation to provide the country of origin to the store, if applicable; and(II)the means to list directly, or provide to the online store for listing, the country of origin of the product. (ii)
Online marketplace
(I)
In general
Subject to subclause (II), an online marketplace is not in violation of the requirements under subparagraph (A) if the online marketplace provided its sellers with—(aa)a notice of the seller's obligation to provide country of origin information when selling a product; and(bb)the means to list the country of origin in the product’s description.(II)
Exception
Subclause (I) shall not apply when the online marketplace is selling the product itself, rather than only facilitating a sale by a seller and relying on a seller for that product’s information.(iii)
Seller
A seller is not in violation of the requirements under subparagraph (A) if the online marketplace did not provide the seller with—(I)the notice described in clause (ii)(I)(aa); or(II)the means to list the county of origin in the product’s description as described in clause (ii)(I)(bb).(D)
Fungible goods or materials
For the purposes of subparagraph (A) and in accordance with section 102.12(f) of title 19, Code of Federal Regulations, an online store, an online marketplace, or a seller is in compliance with the disclosure requirements under subparagraph (A) if it lists multiple countries of origin for products that are fungible goods or materials. Products shall be considered to be fungible goods or materials if the goods or materials, as the case may be, are interchangeable for commercial purposes and have properties which are essentially identical.(E)
Safe harbor
An online store, an online marketplace, or a seller satisfies the disclosure requirements under subparagraph (A) if the online store, online marketplace, or seller relies on the country of origin representation provided by a third party manufacturer, importer, distributor, supplier, or private labeler of the product.(2)
Certain drug products
It shall be unlawful for an online store, an online marketplace, or a seller to offer for sale in commerce to consumers on an internet website a drug that is not subject to section 503(b)(1) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 353(b)(1)) and that is required to be marked under section 304 of the Tariff Act of 1930 (19 U.S.C. 1304) unless the internet website description of the drug indicates in a conspicuous place the name and place of business of the manufacturer, packer, or distributor that is required to appear on the label of the drug in accordance with section 502(b) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 352(b)). (3)
Obligation to provide
A manufacturer, importer, distributor, supplier, or private labeler seeking to have a product introduced, sold, advertised, or offered for sale in commerce shall provide the marking information required by section 304 of the Tariff Act of 1930 (19 U.S.C. 1304) to the relevant online store, an online marketplace, or a seller who wishes to offer the product for sale on an internet website.(b)
Enforcement by the Commission
(1)
Unfair or deceptive acts or practices
A violation of subsection (a) or a regulation promulgated thereunder shall be treated as a violation of a rule defining an unfair or deceptive act or practice under section 18(a)(1)(B) of the Federal Trade Commission Act (15 U.S.C. 57a(a)(1)(B)). (2)
Powers of the Commission
(A)
In general
The Commission shall enforce this section in the same manner, by the same means, and with the same jurisdiction, powers, and duties as though all applicable terms and provisions of the Federal Trade Commission Act (15 U.S.C. 41 et seq.) were incorporated into and made a part of this section.(B)
Privileges and immunities
Any person that violates subsection (a) shall be subject to the penalties and entitled to the privileges and immunities provided in the Federal Trade Commission Act (15 U.S.C. 41 et seq.) as though all applicable terms and provisions of that Act were incorporated and made part of this section.(C)
Authority preserved
Nothing in this section may be construed to limit the authority of the Commission under any other provision of law.(D)
Rulemaking
(i)
In general
The Commission shall promulgate in accordance with section 553 of title 5, United States Code, such rules as may be necessary to carry out this section. (ii)
Consultation
In promulgating any regulations under clause (i), the Commission shall consult with U.S. Customs and Border Protection.(3)
Interagency agreement
Not later than 6 months after the date of enactment of this section, the Commission, the Commissioner for U.S. Customs and Border Protection, the Commissioner of Food and Drugs, the United States Trade Representative, and the Secretary of Agriculture shall— (A)enter into a Memorandum of Understanding or other appropriate agreement for the purpose of providing consistent implementation of this section; and (B)publish such Memorandum of Understanding or other agreement in order to provide public guidance. (c)
Authority preserved
Nothing in this section may be construed to—(1)limit the authority of the Department of Agriculture, the Food and Drug Administration, or U.S. Customs and Border Protection under any other provision of law; or (2)require the Commission to interpret, modify, or enforce regulations promulgated by such agencies unless as provided by the Memorandum of Understanding or other agreement entered into under subsection (b)(3)(A).(d)
Effective date
This section shall take effect 1 year after the date of the publication of the Memorandum of Understanding or other agreement under subsection (b)(3)(B).(e)
Rule of construction
Nothing in this Act shall be construed to require an online store, an online marketplace, or a seller to include a description of a product introduced, sold, or offered for sale in interstate commerce other than a notice of the country of origin as required by subsection (a). (f)
Definitions
In this section:(1)
Commission
The term Commission means the Federal Trade Commission. (2)
Online marketplace
The term online marketplace has the meaning given such term in section 301(f) of the Consolidated Appropriations Act, 2023 (15 U.S.C. 45f(f)). (3)
Online store
The term online store means a person or entity that operates a consumer-directed, electronically based or accessed website that sells products to consumers over the internet for itself or on behalf of third party sellers.(4)
Product
The term product has the meaning given the term article of foreign origin in section 304 of the Tariff Act of 1930 (19 U.S.C. 1304). (5)
Seller
The term seller has the meaning given such term in section 301(f) of the Consolidated Appropriations Act, 2023 (15 U.S.C. 45f(f)). (6)
Small seller
(A)
In general
The term small seller means a seller on an online marketplace that, in any consecutive 12-month period during the previous 24 months, has—(i)annual sales of less than an aggregate total of $20,000 in gross revenues; and (ii)fewer than 200 discrete sales or transactions (excluding sales of used or previously owned products).(B)
Clarification
For the purposes of calculating the number of discrete sales or transactions or the aggregate gross revenues under subparagraph (A), a seller shall only be required to count sales or transactions made through the online marketplace and for which payment was processed by the online marketplace, either directly of through its payment processor. (7)
Used or previously owned product
The term used or previously owned product means a product that was previously sold or offered for sale in interstate commerce.
3.
Country of origin labeling for cooked king crab and tanner crab and cooked and canned salmon
Section 281(7)(B) of the Agricultural Marketing Act of 1946 (7 U.S.C. 1638(7)(B)) is amended—(1)by striking the period at the end and inserting a semicolon;(2)by striking includes a fillet and inserting the following: ‘‘includes—(i)a fillet; and(3)by adding at the end the following:(ii)whole cooked king crab and tanner crab and cooked king crab and tanner crab sections; and(iii)cooked and canned salmon..
December 13, 2023Reported with an amendment