We have previously written about the Uyghur Forced Labor Prevention Act (UFLPA) in the context of the Chinese government’s systematic persecution of this primarily Muslim ethnic minority living in the Xinjiang Uyghur Autonomous region (XUAR) region in northwestern China, including its misappropriation of Uyghur cultural heritage. As part of the U.S. effort to combat these human rights abuses, in December 2021, President Biden signed the Act, which prohibits the import of goods “mined, produced or manufactured wholly or in part with forced labor” from XUAR. Enforcement of the UFLPA began in earnest on June 21, 2022, when U.S. Customs and Border Protection began enforcing the Act’s rebuttable presumption that any such goods were made using forced labor and are prohibited from import into the United States under 19 U.S.C. Section 1307. The effect of the presumption is to shift the burden to the importers to prove by “clear and convincing” affirmative evidence that forced labor was not used in the production of their products, going all the way back in the supply chain to the raw materials — a seemingly impossible burden to meet. Detailed guidance has been provided by U.S. Customs and Border Protection to importers.
As our earlier insight reported, Uyghurs have been systematically isolated in “re-education” camps, sometimes identified as Uyghur by facial recognition technology. According to a March 2020 report by the Australian Strategic Policy entitled “Uyghurs for Sale,”
The Chinese government has facilitated the mass transfer of Uyghur and other ethnic minority citizens from the far west region of Xinjiang to factories across the country. Under conditions that strongly suggest forced labour, Uyghurs are working in factories that are in the supply chains of at least 82 well-known global brands in the technology, clothing and automotive sectors, including Apple, BMW, Gap, Huawei, Nike, Samsung, Sony and Volkswagen.
This report estimates that more than 80,000 Uyghurs were transferred out of Xinjiang to work in factories across China between 2017 and 2019, and some of them were sent directly from detention camps. The estimated figure is conservative and the actual figure is likely to be far higher. In factories far away from home, they typically live in segregated dormitories, undergo organised Mandarin and ideological training outside working hours, are subject to constant surveillance, and are forbidden from participating in religious observances… [footnotes omitted]
Since 2020 several of the listed U.S. retailers have moved their cotton supply chain out of China. For example, in 2020 Patagonia, after attempting unsuccessfully to research all aspects of its cotton supply chain in China, terminated its relationships with Chinese suppliers and is attempting to replicate the cotton supply elsewhere. A company spokesman stated:
We had to walk away from business partners, we had to redesign styles to fit the substitute cotton, and we had to do away with styles that we could no longer make because the quality of cotton was no longer available…
Likewise, Eileen Fisher and L.L. Bean have terminated relationships with Xiangxang suppliers. L.L. Bean reported that it had “completely removed [itself] out of the cotton production process” in early 2021, stating:
We have full confidence in our due diligence process to state that none of our products are made with Chinese cotton or use forced labor.
Many larger companies, whether unable to reliably trace their supply chains or unwilling to sacrifice lucrative revenue streams from Chinese consumers, have been slower to respond.
We will follow enforcement of the new law and the response of major importers (who have been urged by Human Rights Watch to relocate operations, suppliers, or sub-suppliers currently in Xinjiang), as well as the overall plight of the Uyghurs.