Packaging My Goods For Transport Across The Border: Compliance Issues To Consider

U.S. customs officials and other government officials (read FDA) are appointed to examine every aspect associated with your shipment.

Does this mean that even the box I use to package my goods will be examined? ABSOLUTELY.

Take the FDA……it must approve any materials used in the construction or manufacture of containers for use in the packaging of food or beverages.  Further, certain plant materials used for bottle jackets for wine or other liquids are subject to special restrictions under plant quarantine regulations of the Animal and Plant Health Inspection Service.  That is, all bottle jackets made of dried or unmanufactured plant materials are subject to inspection upon arrival and are referred to the Department of Agriculture.

Can I use wood to package my goods? ABSOLUTELY.

All wood packaging material (WPM) for international transport must meet International Plant Protection Convention standard ISPM #15 with the proper markings indicated.  WPM is defined as “hardwood and softwood packaging other than that comprised wholly of wood-based products such as plywood, particle board, oriented strand board, veneer, wood wool, etc., which has been created using glue, heat, and pressure or a combination thereof used in supporting, protecting or carrying a commodity (includes dunnage).”[1]

The marking required on the wood packaging material must be placed in a visible location on each article, preferably on at least two opposite sides of the article; must be legible and permanent and it must indicate that the article has been treated as required as well as approved by the IPPC to certify that the wood packaging material has been subjected to an approved measure.

But I plan to  use  third-party packaging materials…should I be concerned? 

Ask your third party for a “letter of guaranty”.  A “letter of guaranty” releases you from any FDA liability.  If a third party supplier has followed FDA guidelines while providing you with the requested packaging material, such third party will not hesitate to furnish a “letter of guaranty”.

Did you say Intellectual Property?

Intellectual property and packaging go hand in hand. In particular, you should be concerned with the “trade dress”.  Trade dress is essentially the combination of elements on packaging, containers, wrappers, or labels that is unique to a particular brand or producer.  The key to determine whether a producer owns a protectable trade dress is whether the packaging has become unique enough that consumers associate that packaging with a particular brand. [2]

If an individual has not registered their trade dress, they can still sue under federal and state unfair competition laws, provided all the requisite factors have been met.

So ask yourself, why were my goods stopped at the border? …because  faulty packaging should NOT be the reason.

Remember to run through the same issues before exporting your U.S. goods.  Most foreign countries take wood packaging and intellectual property enforcement seriously.

DISCLAIMER:

The views expressed above are personal and for educational purposes only. This blog is not a substitute for legal advice from an attorney in your own state. 


[1] United States Department of Agriculture, Wood Packaging Materials, Frequently Asked Questions @ http://www.aphis.usda.gov/import_export/plants/plant_exports/wpm/wpm_faqs.shtml, December 22, 2011

[2] American Bar Association, Unique IP Issues @ http://www2.americanbar.org/calendar/young-lawyers-division-spring-conference-2011/Documents/jackandcolaprogrammaterials.pdf, December 22, 2011

FDA Prior Import Registration

Why Do I care about the FDA? 

…..Because they can STOP your shipment if you don’t!

An importer must ensure that the food or beverage producer they import from is registered with the FDA and provide the FDA with advance notification of any importation.[1]

The owner, operator, or agent in charge of a domestic or foreign facility that manufactures/processes, packs, or holds food for human or animal consumption in the U.S., or an individual authorized by one of them, must register that facility with the FDA.  A foreign facility must designate a U.S. agent (for example a facility’s importer or broker), who must live or maintain a place of business in the U.S. and be physically present in the U.S., for purposes of registration.

Prior Notice of Importation of Food

The FDA will require that US purchasers, US importers or their agents submit to the FDA prior notice on the importation of food. Prior notice must be submitted no earlier than five days prior to shipment and no later than 4 hours prior to shipment arrival.[2]

If a foreign facility that manufactures/ processes, packs, or holds food sends it to another foreign facility for further manufacturing/processing or packaging before the food is exported to the U.S., only the second foreign facility is required to register. However, if the second foreign facility performs only a de minimis activity, such as putting on a label, both facilities would be required to register.[3]