"Buying Medicine From Outside The U.S. Is Risky Business" Especially For Death Row Inmates

On Monday, October 25, 2010 a federal judge in Arizona issued a temporary restraining order to delay an execution because of questions surrounding the origin of one of the drugs - sodium thiopental - that Arizona (and other states) administers during the execution.  The Supreme Court issued an order on Tuesday, October 26, 2010 vacating the lower court's order.  

Death penalty cases rarely (never?) raise customs issues, but this one might.  In its order, the Supreme Court noted: 

There was no showing that the drug was unlawfully obtained, nor was there an offer of proof to that effect.

Hmmm.  Section 801 of the Federal Food, Drug, and Cosmetic Act generally prohibits the importation of non-FDA approved prescription drugs.  Sodium thiopental is a "controlled substance" aka prescription drug.  The lower court found that the drug in question was "non-FDA approved."  

So the obvious questions are who imported the drug, how was it declared, and is there some general exception for prescription drugs imported for (by?) states for use in executions?  I'm not aware of any such exception but I suppose there could be one.  Seems to me that the public policy justifications (e.g. concerns about safety and efficacy) for prohibiting the importation of non-FDA approved drugs should apply whether the drugs are taken voluntarily by senior citizens or administered (involuntarily) to death row inmates. 

Enhanced Customs Bonds, It May Be Time To Cut Bait

In 2006, US Customs and Border Protection (CBP) adopted the so-called "Enhanced Bonding Requirements" (EBR) to require higher continuous entry bonds for importers of shrimp subject to antidumping orders.  Instead of protecting the US Treasury (which was its claimed purpose), the EBR cost USTR and DOJ time, money, and effort to defend an initiative that has been found to violate US law and its WTO commitments (a rare feat).   

On October 21, 2010, the US Court of International Trade (CIT) took a decisive step to grant relief to the importers. In National Fisheries, the CIT ordered CBP to cancel the plaintiffs' bonds issued using the EBR. The CIT issued the order even though it recognized that by doing so:

likely would moot any appeal by the United States in the particular circumstances of this case

Wow.  It's not often that a court orders a party, let alone the Federal Government, to take actions that would deprive them of the right to appeal the court's decision.  The Court gave CBP a sliver of hope by giving it 60 days to convince the Court to modify the injunction it just issued (good luck with that) or get a stay from the Federal Circuit.  It may be time to cut bait and let CBP's hope to be able to (maybe) one day collect under the EBR bonds swim away.

Are Trade Remedies Dead? Maybe in the US, but not against the US.

On October 21 2010, US manufacturers of multilayered wood flooring filed a petition seeking antidumping (AD) and countervailing (CVD) duties against imports from China.  This was the first trade remedy petition filed since March, 2010 and only the third petition filed this year (15 petitions were filed in 2009).  The "Great Recession" clearly hasn't created a surge in new trade remedy cases in the United States.  (My thoughts on that will have to wait for another time.)

While trade remedy filings are at an all time low in the US, US industries are increasingly the target of AD/CVD cases in other countries.  In 2010, there have been 13 AD cases initiated against the US exports along with several CVD cases.  These cases have targeted important industries such as poultry, biodiesel, optical fiber, and various chemicals.  So, while trade remedies are dying (dead?) in the US, they are alive and "well" in other countries and are increasingly targeting US exports.  That attention will only grow if the National Export Initiative is successful.