Trade Has Differing Opinions on Two FSMA Definitions of "Importer"
The trade has submitted comments in response to the Food and Drug Administration’s request for input on its implementation of the import provisions of the Food Safety Modernization Act (FSMA). The comments focus on the FSMA’s requirements for a Foreign Supplier Verification Program, a Voluntary Qualified Importer Program, the certification of certain high-risk imported food, third-party auditors and accreditation, and the two FSMA definitions of “importer.” In general, FDA was urged to set broad goals over prescriptive requirements, recognize risk, and clearly define requirements and terms.
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This summary focuses on comments regarding the two definitions of importer in the FSMA. (See ITT's Online Archives or 05/17/11 news, 11051724, 11051718 and 11051725 for BP summaries of the other issues.)
Definitions of Importer
For the Foreign Supplier Verification Program (FSVP), the FSMA states that importer means the U.S. owner or consignee of the article of food at the time of entry of such article into the U.S., or if there is no U.S. owner or consignee, the U.S. agent or representative of a foreign owner or consignee of the article of food at the time of entry of such article into the U.S.
Under the Voluntary Qualified Importer Program ( VQIP), importer means the person that brings food, or causes food to be brought, from a foreign country into the customs territory of the U.S.
Differing Opinions on Definitions of Importer
There were differing opinions on the two FSMA definitions of importer, with some stating that importer should be considered the following:
- Party with financial interest, supply chain knowledge. Several of the comments stated that the importer must be the party that is actually responsible for the food product, with first-hand knowledge about and control over the product and/or the producers in the supply chain and the party the financial interest in the product.
- Party who causes shipment to enter U.S. Others stated that “importer” should be defined as a person or legal entity that causes a shipment to enter the U.S. from a foreign location, usually by purchase or agreement to purchase from a foreign seller.
- Should not be importer of record. A few comments stated that the term “importer” should not be the “importer of record” as this is a technical term applicable only to U.S. Customs and Border Protection (CBP) entry procedures and forms. They felt it should not be used for purposes of developing and implementing FSMA regulations.
- Should be importer of record. Another stated that both definitions should be modified to mean the importer of record.
Should Reconcile Two FSMA Definitions of Importer
Several suggested that FDA attempt to reconcile the two statutory definitions of importer to ensure consistency.
FDA Needs to Seek More Comments on Issue
One person suggested that FDA seek comments exclusively on this issue as it is likely to be problematic.
(See ITT’s Online Archives or 03/31/11 news, 11033124, for BP summary of FDA seeking the trade’s advice and certain importer comments at a March 29, 2011 public meeting on the FSMA import provisions.
See ITT’s Online Archives or 05/02/11 news, 11050223, for BP summary of NCBFAA stating that brokers should not be responsible for FSMA food safety.)