For the first time in over 80 years, cosmetic companies are expected to report any adverse events to the FDA (food and drug administration) as part of MOCRA (modernization of the of cosmetics regulation act of 2022) which is part of the Food and Drug Omnibus Reform Act of 2022 passed on December 23, 2022. It was signed into law by President Joe Biden on December 29, 2022.
What does this mean for consumers?All brands will be held to a higher standard as they will be required to adhere to manufacturing regulations, can’t use chemical additives and undergo asbestos testing for products made with talc. MOCRA provides FDA mandatory recall authority (on products which cause serious adverse health consequences) and increases FDA’s access to a number of records.
According to FDALawBlog.com “ MOCRA preempts state law requirements differing from, or in addition to, those relating to registration and product listing, good manufacturing practice, recordkeeping, recalls, adverse event reporting, and safety substantiation. However, other prohibitions and limitations on the use or amount of an ingredient in a cosmetic product, state tort laws, and state laws and referendums, such as California’s Proposition 65, are carved out from preemption. Although the preemption provision certainly is not as strong as industry would prefer, industry has generally supported modernization of cosmetic regulation as it will advance innovation, modernize oversight and (presumably) bolster consumer confidence. At least for now, industry has been successful in preventing user fees for cosmetic companies. Congress appropriated $14,200,000 for fiscal year 2023, $25,960,000 for fiscal year 2024, and $41,890,000 for each of fiscal years 2025 through 2027 to FDA for developing regulations and performing the other activities under MOCRA.
The passing of MOCRA does not change matters for industry overnight. The requirements for registration and listing and new enforcement provisions become effective one year after enactment of the legislation. A client memo prepared in early 2023 will address MOCRA and other major provisions of FDORA in further detail.”
“Although more is needed to ensure the safety of chemicals used in cosmetics, this update is a welcome step in the right direction,” said Scott Faber (Environmental Working Group senior vice president for government affairs).
Happy Labor Day weekend to our employees, clients and partners. The world runs on your contributions and you all deserve recognition. We hope you have a great holiday weekend.
The U.S. Trade Representative is commencing the statutory four-year review of the two actions taken under Section 301 of the Trade Act of 1974, as amended, in the investigation of China’s Acts, Policies, and Practices Related to Technology Transfer, Intellectual Property, and Innovation. The two actions were effective, respectively, on July 6, 2018 and August 23, 2018, and subsequently were modified by imposing additional duties on supplemental lists of products, as well as by the temporary removal of duties on certain products through product exclusions.
The first step in the four-year review process is notifying representatives of domestic industries which benefit from the trade actions, as modified, of the possible termination of the actions, and of the opportunity for these representatives to request continuation of the actions. Requests for continuation must be received in the 60-day window prior to the four-year anniversary of the respective action: Between May 7, 2022, and July 5, 2022, for the July 6, 2018 action, and between June 24, 2022, and August 22, 2022, for the August 23, 2018, action. The Office of the United States Trade Representative (USTR) is opening dockets in these two time windows for representatives of domestic industries which benefit from the trade actions to request continuation of the corresponding trade actions, as modified. If the actions continue as a result of one or more requests from representatives of domestic industries which benefit from the trade actions, USTR will proceed with the next phase of the review.
The second phase of the review will be announced in one or more subsequent notices, and will provide opportunities for public comments from all interested parties.
DATES: For the July 6, 2018 trade action, the web portal at https:// comments.ustr.gov/s/ will open for requests to continue the action on May 7, 2022, and close at 11:59 p.m. on July 5, 2022. For the August 23, 2018 trade action, the web portal at https:// comments.ustr.gov/s/ will open for requests to continue the action on June 24, 2022, and close at 11:59 p.m. on August 22, 2022.
FOR FURTHER INFORMATION CONTACT: For questions about this notice, contact Assistant General Counsels Megan Grimball or Philip Butler at (202) 395– 5725.
Background: On August 24, 2017, the U.S. Trade Representative initiated an investigation into certain acts, policies, and practices of the Government of China related to technology transfer, intellectual property, and innovation. 82 FR 40213. In a notice published on April 6, 2018 (83 FR 14906), the U.S. Trade Representative announced a determination that the acts, policies, and practices of the Government of China covered in the investigation are unreasonable or discriminatory and burden or restrict U.S. commerce. The April 6 notice also invited public comment on a proposed action in the investigation, in the form of an additional 25 percent ad valorem duty on products of China classified in a list of 1,333 tariff subheadings, with an annual trade value of approximately $50 billion.
Actions Taken Under Section 301 of the Trade Act Following a period of public notice and comment, the U.S. Trade Representative determined to take action under Section 301 of the Trade Act of 1974, as amended (Trade Act) (19 U.S.C. 2411) in the form of additional duties of 25 percent ad valorem on 818 of the proposed tariff subheadings, with an approximate annual trade value of $34 billion, effective July 6, 2018 (List 1). 83 FR 28710 (hereinafter referred to as the July 6, 2018, action). The U.S. Trade Representative also proposed further action in the form of additional ad valorem duties of 25 percent on a list of 284 tariff subheadings with an approximate annual trade value of $16 billion. Following a period of notice and comment, the U.S. Trade Representative determined to take action under Section 301 in the form of additional duties of 25 percent on 279 tariff subheadings with an approximate annual trade value of $16 billion, effective August 23, 2018 (List 2). 83 FR 40823 (hereinafter referred to as the August 23, 2018, action).
2. Subsequent Modifications Under Section 307 The U.S. Trade Representative subsequently modified the July 6, 2018, and August 23, 2018, actions, pursuant to authority under Section 307(a) of the Trade Act. (19 U.S.C. 2417(a)). These modifications were in the form of (i) additional duties on supplemental lists of products, and (ii) the temporary removal of duties on certain products through product exclusions. The modifications to the July 6, 2018, and August 23, 2018, actions that are currently in effect are as follows: a. List 3—83 FR 47974 (September 21, 2018), as modified by 84 FR 20459 (May 9, 2019), and as amended by 84 FR 21892 (May 15, 2019); 84 FR 26930 (June 10, 2019); 86 FR 22092 (April 26, 2021); and 84 FR 9785 (February 22, 2022); b. List 4A—84 FR 43304 (August 20, 2019), as modified by 84 FR 45821 (August 30, 2019), 84 FR 69447 (December 18, 2019), and 85 FR 3741 (January 22, 2020); c. COVID Exclusions—86 FR 63438 (November 16, 2021), as amended: By 86 FR 69350 (December 7, 2021) and 87 FR 4704 (January 28, 2022): and d. Reinstated Exclusions—87 FR 17380 (March 28, 2022). In the four-year review, USTR will examine the July 6, 2018, action, as modified, and August 23, 2018, action, as modified. To ensure comprehensive coverage of the review, USTR will consider the List 3 and List 4A modifications as applicable to both the July 6, 2018, action and August 23, 2018, action.
If you have any additional questions, please do not hesitate to contact us HERE.
Express recently cooked up a $2mm A/R and a $500k P.O Funding Facility for a chili spice company. The company’s sales caught fire with significant increased orders from its large retailers and they couldn’t keep up with the demand. Express’s well-seasoned team spiced things up with working capital to pay their copacker and purchase raw materials, ingredients and packaging.
Like many food and beverage companies, the client was originally looking for VC or PE firms to provide capital for order fulfillment and basic working capital requirements. The client did a hot take when they realized that they could use factoring and PO funding facilities to finance their growth AND increase their enterprise value without giving up equity in the meantime. All in all, it was another tasty adventure.
What are everyone’s thoughts on when companies should seek equity investors?
We are pleased to announce that effective immediately, David Estrakh has been promoted to EVP. Over the last few years, David has already taken on and performed the duties of EVP and his new title is intended to convey a role commensurate with those responsibilities.
As EVP, David heads ETC’s Sales and Marketing Department, overseeing a team of eight new business and marketing executives across the country. David is a member of ETC’s Executive Committee and active in all areas of operations and management including client and partner relations. As a corollary to his role as EVP, David sits on multiple company boards and is active in various charitable organizations.
In addition to his 10+ years’ experience and success at Express Trade Capital, David was recently awarded 40 Under 40 honors by SFNet (2020) and Insight Success Magazine (2021).
Every year, trade transactions exceeding US$2 trillion are conducted under UCP600, totaling some 11% of all import/export transactions.1 The primary goal of the UCP600 is to ease cross-border trade by providing global uniform rules regulating the issuance and usage of letters of credit (“LCs”).
To date, the UCP (“Uniform Customs and Practice for Documentary Credits”) rules are adopted in 175 countries. UCP rules are issued by the International Chamber of Commerce’s (ICC) commission on Banking Technique and Practice. It is important to note that the ICC is a private international organization of industry experts, not a governmental body. The UCP600 is arguably the most widely accepted set of private rules for international trade ever developed.
How is UCP600 different from previous UCP publications?
Since the UCP was first established in 1933, it underwent several revisions, each reflecting the evolution of trade finance practices across banking, insurance, and transport industries. The objective was to create a set of internationally uniform rules to remove confusion caused by individual countries promoting disparate laws and practices governing the use of letters of credit. By guiding banks and other players engaged in global trade, the UCP enables greater trust between multinational actors and drastically increases the reliability, frequency and efficiency of international trade transactions. As of today, the UCP600 is the latest published revision issued on July 1, 2007 and includes 39 Articles.
In contrast to previous UCP publications, UCP600 not only lays out guidelines, but also includes definitions (Article 2) and interpretations (Article 3) on how to apply certain provisions of the code. By providing clear, defined terms and information specifying the role of banks in letters of credit, UCP600 removes ambiguity and provides a more concise and precise set of regulations to govern LCs. As a result, compared to transactions governed by previous versions of the UCP, transactions conducted under UCP600 are more streamlined, less risky and require fewer amendments.
Aiming to adapt the evolving practice of submitting electronic documents under letters of credit, UCP600 introduced the eUCP which has 12 articles. The goal of the eUCP is to ‘accommodate presentation of electronic records alone or in combination with paper documents’.2 However, for a letter of credit to be subject to eUCP, it must explicitly indicate so in the instrument. Letters of credit subject to eUCP are also subject to UCP600 even if this is not explicitly stated in the letter of credit. If there is a conflict, eUCP will prevail in situations where it will produce a different result from UCP.
How is UCP600 beneficial for trade transactions?
1. UCP600 levels the playing field by creating one set of operating rules for all international parties. This makes trade more inclusive because it allows SMEs to participate in international markets and integrate global supply chains. SMEs can now rely on banks and counterparties to follow the UCP600 rather than relying on their network, market position, banking relationships and ability to exercise legal muscle, to hold sway over their trade partners when disputes arise.
2. UCP600 resolves disagreements without court intervention, providing more fair, cost-effective, and efficient global trade transactions. Banks and other LC issuing institutions can perform better as neutral third parties to decide issues that are resolved by the language of UCP600 rather than deferring and referring issues for resolution to courts for fear of incurring liability.
3. UCP600 clearly identifies the roles of parties involved and their responsibilities, reducing risk and increasing transparency and therefore speed for exporters and importers who otherwise would have no recourse beyond suing their trade partners and corresponding banks in courts of foreign jurisdiction.
4. A notable feature of UCP600 is the irrevocable nature of the letter of credit. An irrevocable letter of credit cannot be revoked by the issuing bank or at the request of the letter of credit applicant. It assures the parties involved that the guarantee offered by an LC cannot be rescinded once issued unless all parties mutually agree to cancel it. An LC is irrevocable by default, even if not explicitly stated.
For a letter of credit to adhere to UCP600, it must specify so (unless it states that it is subject to the eUCP in which case, both apply). This ensures that all parties involved understand how their performance under the instrument will be governed. If a transaction requires, certain parts of the UCP600 can be omitted but such exceptions must be specifically and unambiguously written into the LC.
If you would like to find out more about LCs, the UCP600 and how it could benefit your trade transactions, reach out to slava@expresstradecapital.com. A comprehensive understanding of UCP600 will help both small and large businesses mitigate risks and conquer new international markets.
To make sure your LCs are issued under UCP600, reach out to us. We issue LCs, SBLCs, BGs, RWAs, and Proof of Funds. Contact us to understand which instrument is best suited for your business needs.
Sources:
1. Collyer, Gary. Guide to Documentary Credits. The London Institute of Banking & Finance, 2017
2. International Chamber of Commerce. Supplement to the Uniform Customs and Practices for Documentary Credits for Electronic Presentations (eUCP), 2007
International Chamber of Commerce. Uniform Customs and Practices for Documentary Credits, Publication 600 (UCP600), 2007
