COOL Online Act

II Calendar No. 289 118TH CONGRESS 1ST SESSION S. 1421 To require origin and location disclosure for new products of foreign origin offered for sale on the internet. IN THE SENATE OF THE UNITED STATES MAY 3, 2023 Ms. BALDWIN (for herself, Mr. VANCE, Mr. SCOTT of Florida, Mr. HAWLEY, Mr. BRAUN, and Mr. BROWN) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation DECEMBER 13, 2023 Reported by Ms. CANTWELL, with an amendment [Strike out all after the enacting clause and insert the part printed in italic] A BILL To require origin and location disclosure for new products of foreign origin offered for sale on the internet. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Country Of Origin La- 4 beling Online Act’’ or the ‘‘COOL Online Act’’. 5 VerDate Sep 11 2014 01:03 Dec 14, 2023 Jkt 049200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6401 E:\BILLS\S1421.RS S1421 2 •S 1421 RS SEC. 2. MANDATORY ORIGIN AND LOCATION DISCLOSURE 1 FOR NEW PRODUCTS OF FOREIGN ORIGIN 2 OFFERED FOR SALE ON THE INTERNET. 3 (a) MANDATORY DISCLOSURE.— 4 (1) IN GENERAL.— 5 (A) DISCLOSURE.—Subject to subpara- 6 graph (B), it shall be unlawful for a product 7 that is marked or required to be marked under 8 section 304 of the Tariff Act of 1930 (19 9 U.S.C. 1304) to be introduced, sold, advertised, 10 or offered for sale in commerce on an internet 11 website unless the internet website description 12 of the product indicates in a conspicuous 13 place— 14 (i) the country of origin of the prod- 15 uct (or, in the case of a multi-sourced 16 product, the countries of origin), in a man- 17 ner consistent with the regulations pre- 18 scribed under such section 304; and 19 (ii) the country in which the seller of 20 the product has its principal place of busi- 21 ness. 22 (B) EXCLUSIONS.— 23 (i) AGRICULTURAL PRODUCTS.—The 24 disclosure requirements under clauses (i) 25 VerDate Sep 11 2014 01:03 Dec 14, 2023 Jkt 049200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6401 E:\BILLS\S1421.RS S1421 3 •S 1421 RS and (ii) of subparagraph (A) shall not 1 apply to— 2 (I) a covered commodity (as de- 3 fined in section 281 of the Agricul- 4 tural Marketing Act of 1946 (7 5 U.S.C. 1638)); 6 (II) a meat or meat food product 7 subject to inspection under the Fed- 8 eral Meat Inspection Act (21 U.S.C. 9 601 et seq.); 10 (III) a poultry or poultry product 11 subject to inspection under the Poul- 12 try Products Inspection Act (21 13 U.S.C. 451 et seq.); or 14 (IV) an egg product subject to 15 regulation under the Egg Products 16 Inspection Act (21 U.S.C. 1031 et 17 seq.). 18 (ii) FOOD AND DRUGS.—The disclo- 19 sure requirements under clauses (i) and 20 (ii) of subparagraph (A) shall not apply to 21 a food or drug (as those terms are defined 22 in paragraphs (f) and (g), respectively, of 23 section 201 of the Federal Food, Drug, 24 and Cosmetic Act (21 U.S.C. 321) that is 25 VerDate Sep 11 2014 01:03 Dec 14, 2023 Jkt 049200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6401 E:\BILLS\S1421.RS S1421 4 •S 1421 RS subject to the jurisdiction of the Food and 1 Drug Administration. 2 (iii) USED OR PREVIOUSLY OWNED 3 ARTICLES.—The disclosure requirements 4 under clauses (i) and (ii) of subparagraph 5 (A) shall not apply to any used or pre- 6 viously owned article sold by an internet 7 website marketplace or a seller on an inter- 8 net website marketplace. For the purposes 9 of the preceding sentence, the term ‘‘used 10 or previously owned article’’ means an arti- 11 cle that was previously sold or offered for 12 sale at retail. 13 (iv) SMALL SELLER.—The disclosure 14 requirements under clauses (i) and (ii) of 15 subparagraph (A) shall not apply to goods 16 listed by a small seller. For the purposes 17 of the preceding sentence, the term ‘‘small 18 seller’’ means a seller with annual sales of 19 less than $20,000 and fewer than 200 dis- 20 crete sales. 21 (C) MULTI-SOURCED PRODUCTS.—For 22 purposes of subparagraph (A)(i), a product 23 shall be considered to be a ‘‘multi-sourced prod- 24 uct’’ if a seller offers for sale a finished prod- 25 VerDate Sep 11 2014 01:03 Dec 14, 2023 Jkt 049200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6401 E:\BILLS\S1421.RS S1421 5 •S 1421 RS uct, identical versions of which are produced in 1 multiple countries. 2 (2) CERTAIN DRUG PRODUCTS.—It shall be un- 3 lawful for a drug that is not subject to section 4 503(b)(1) of the Federal Food, Drug, and Cosmetic 5 Act (21 U.S.C. 353(b)(1)) and that is required to be 6 marked under section 304 of the Tariff Act of 1930 7 (19 U.S.C. 1304) to be offered for sale in commerce 8 to consumers on an internet website unless the inter- 9 net website description of the drug indicates in a 10 conspicuous place the name and place of business of 11 the manufacturer, packer, or distributor that is re- 12 quired to appear on the label of the drug in accord- 13 ance with section 502(b) of the Federal Food, Drug, 14 and Cosmetic Act (21 U.S.C. 352(b)). 15 (3) OBLIGATION TO PROVIDE.—A manufac- 16 turer, importer, distributor, seller, supplier, or pri- 17 vate labeler seeking to have a product introduced, 18 sold, advertised, or offered for sale in commerce 19 shall provide the information identified clauses (i) 20 and (ii) of paragraph (1)(A) or paragraph (2), as 21 applicable, to the relevant retailer. 22 (4) SAFE HARBOR.—A retailer or a seller on an 23 internet website marketplace satisfies the disclosure 24 requirements under clauses (i) and (ii) of paragraph 25 VerDate Sep 11 2014 01:03 Dec 14, 2023 Jkt 049200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6401 E:\BILLS\S1421.RS S1421 6 •S 1421 RS (1)(A) or paragraph (2), as applicable, if the disclo- 1 sure includes the country of origin and seller infor- 2 mation provided by a third-party manufacturer, im- 3 porter, distributor, seller, supplier, or private labeler 4 of the product. 5 (b) ENFORCEMENT BY THE COMMISSION.— 6 (1) UNFAIR OR DECEPTIVE ACTS OR PRAC- 7 TICES.—A violation of subsection (a) shall be treated 8 as a violation of a rule prescribed under section 9 18(a)(1)(B) of the Federal Trade Commission Act 10 (15 U.S.C. 57a(a)(1)(B)). 11 (2) POWERS OF THE COMMISSION.— 12 (A) IN GENERAL.—The Commission shall 13 enforce this section in the same manner, by the 14 same means, and with the same jurisdiction, 15 powers, and duties as though all applicable 16 terms and provisions of the Federal Trade 17 Commission Act (15 U.S.C. 41 et seq.) were in- 18 corporated into and made a part of this section. 19 (B) PRIVILEGES AND IMMUNITIES.—Any 20 person that violates subsection (a) shall be sub- 21 ject to the penalties and entitled to the privi- 22 leges and immunities provided in the Federal 23 Trade Commission Act (15 U.S.C. 41 et seq.) 24 as though all applicable terms and provisions of 25 VerDate Sep 11 2014 01:03 Dec 14, 2023 Jkt 049200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6401 E:\BILLS\S1421.RS S1421 7 •S 1421 RS that Act were incorporated and made part of 1 this section. 2 (C) AUTHORITY PRESERVED.—Nothing in 3 this section may be construed to limit the au- 4 thority of the Commission under any other pro- 5 vision of law. 6 (3) INTERAGENCY AGREEMENT.—Not later 7 than 6 months after the date of enactment of this 8 section, the Commission, the U.S. Customs and Bor- 9 der Protection, and the Department of Agriculture 10 shall— 11 (A) enter into a Memorandum of Under- 12 standing or other appropriate agreement for the 13 purpose of providing consistent implementation 14 of this section; and 15 (B) publish such agreement to provide 16 public guidance. 17 (4) DEFINITION OF COMMISSION.—In this sub- 18 section, the term ‘‘Commission’’ means the Federal 19 Trade Commission. 20 (c) LIMITATION OF LIABILITY.—A retailer or seller 21 is not in violation of subsection (a) if— 22 (1) a third-party manufacturer, distributor, sell- 23 er, supplier, or private labeler provided the retailer 24 or seller with a false or deceptive representation as 25 VerDate Sep 11 2014 01:03 Dec 14, 2023 Jkt 049200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6401 E:\BILLS\S1421.RS S1421 8 •S 1421 RS to the country of origin of a product or its parts or 1 processing; and 2 (2) the retailer or seller— 3 (A) relied in good faith on that representa- 4 tion; and 5 (B) took immediate action to remove any 6 such false or deceptive representations upon no- 7 tice. 8 (d) AUTHORITY PRESERVED.—Nothing in this sec- 9 tion may be construed to limit the authority of the Depart- 10 ment of Agriculture, the Food and Drug Administration, 11 or U.S. Customs and Border Protection under any other 12 provision of law. 13 (e) EFFECTIVE DATE.—This section shall take effect 14 12 months after the date of the publication of the Memo- 15 randum of Understanding or agreement under subsection 16 (b)(3). 17 SECTION 1. SHORT TITLE. 18 This Act may be cited as the ‘‘Country Of Origin La- 19 beling Online Act’’ or the ‘‘COOL Online Act’’. 20 SEC. 2. MANDATORY ORIGIN DISCLOSURE FOR NEW PROD- 21 UCTS OF FOREIGN ORIGIN OFFERED FOR 22 SALE ON THE INTERNET. 23 (a) MANDATORY DISCLOSURE.— 24 (1) IN GENERAL.— 25 VerDate Sep 11 2014 01:03 Dec 14, 2023 Jkt 049200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6203 E:\BILLS\S1421.RS S1421 9 •S 1421 RS (A) DISCLOSURE.—Subject to the suc- 1 ceeding provisions of this paragraph, it shall be 2 unlawful for an online store, an online market- 3 place, or a seller to introduce, sell, or offer for 4 sale on an internet website a product that is 5 marked or required to be marked under section 6 304 of the Tariff Act of 1930 (19 U.S.C. 1304) 7 unless the country of origin is disclosed in a con- 8 spicuous manner on the online store or online 9 marketplace’s online description of the product 10 and in a manner consistent with the regulations 11 prescribed under such section 304 at the time of 12 the product’s importation, or anticipated impor- 13 tation, into the customs territory of the United 14 States. 15 (B) EXCLUSIONS.— 16 (i) AGRICULTURAL PRODUCTS.—The 17 disclosure requirements under subparagraph 18 (A) shall not apply to— 19 (I) a covered commodity (as de- 20 fined in section 281 of the Agricultural 21 Marketing Act of 1946 (7 U.S.C. 22 1638)); 23 (II) a meat or meat food product 24 subject to inspection under the Federal 25 VerDate Sep 11 2014 01:03 Dec 14, 2023 Jkt 049200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6203 E:\BILLS\S1421.RS S1421 10 •S 1421 RS Meat Inspection Act (21 U.S.C. 601 et 1 seq.); 2 (III) a poultry or poultry product 3 subject to inspection under the Poultry 4 Products Inspection Act (21 U.S.C. 5 451 et seq.); or 6 (IV) an egg product subject to reg- 7 ulation under the Egg Products Inspec- 8 tion Act (21 U.S.C. 1031 et seq.). 9 (ii) FOOD AND DRUGS.—The disclosure 10 requirements under subparagraph (A) shall 11 not apply to a food or drug (as those terms 12 are defined in paragraphs (f) and (g), re- 13 spectively, of section 201 of the Federal 14 Food, Drug, and Cosmetic Act (21 U.S.C. 15 321)) that is subject to the jurisdiction of 16 the Food and Drug Administration. 17 (iii) USED OR PREVIOUSLY OWNED 18 PRODUCTS.—The disclosure requirements 19 under subparagraph (A) shall not apply to 20 any used or previously owned products sold 21 in interstate commerce. 22 (iv) SMALL SELLER.—The disclosure 23 requirements under subparagraph (A) shall 24 not apply to goods listed by a small seller. 25 VerDate Sep 11 2014 01:03 Dec 14, 2023 Jkt 049200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6203 E:\BILLS\S1421.RS S1421 11 •S 1421 RS (C) LIMITATION OF LIABILITY.— 1 (i) ONLINE STORE.—An online store is 2 not in violation of the requirements under 3 subparagraph (A) if the online store pro- 4 vided its third party manufacturer, dis- 5 tributor, supplier, or private labeler with— 6 (I) a notice of their obligation to 7 provide the country of origin to the 8 store, if applicable; and 9 (II) the means to list directly, or 10 provide to the online store for listing, 11 the country of origin of the product. 12 (ii) ONLINE MARKETPLACE.— 13 (I) IN GENERAL.—Subject to sub- 14 clause (II), an online marketplace is 15 not in violation of the requirements 16 under subparagraph (A) if the online 17 marketplace provided its sellers with— 18 (aa) a notice of the seller’s 19 obligation to provide country of 20 origin information when selling a 21 product; and 22 (bb) the means to list the 23 country of origin in the product’s 24 description. 25 VerDate Sep 11 2014 01:03 Dec 14, 2023 Jkt 049200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6203 E:\BILLS\S1421.RS S1421 12 •S 1421 RS (II) EXCEPTION.—Subclause (I) 1 shall not apply when the online mar- 2 ketplace is selling the product itself, 3 rather than only facilitating a sale by 4 a seller and relying on a seller for that 5 product’s information. 6 (iii) SELLER.—A seller is not in viola- 7 tion of the requirements under subpara- 8 graph (A) if the online marketplace did not 9 provide the seller with— 10 (I) the notice described in clause 11 (ii)(I)(aa); or 12 (II) the means to list the county 13 of origin in the product’s description 14 as described in clause (ii)(I)(bb). 15 (D) FUNGIBLE GOODS OR MATERIALS.—For 16 the purposes of subparagraph (A) and in accord- 17 ance with section 102.12(f) of title 19, Code of 18 Federal Regulations, an online store, an online 19 marketplace, or a seller is in compliance with 20 the disclosure requirements under subparagraph 21 (A) if it lists multiple countries of origin for 22 products that are fungible goods or materials. 23 Products shall be considered to be ‘‘fungible goods 24 or materials’’ if the goods or materials, as the 25 VerDate Sep 11 2014 01:03 Dec 14, 2023 Jkt 049200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6203 E:\BILLS\S1421.RS S1421 13 •S 1421 RS case may be, are interchangeable for commercial 1 purposes and have properties which are essen- 2 tially identical. 3 (E) SAFE HARBOR.—An online store, an 4 online marketplace, or a seller satisfies the dis- 5 closure requirements under subparagraph (A) if 6 the online store, online marketplace, or seller re- 7 lies on the country of origin representation pro- 8 vided by a third party manufacturer, importer, 9 distributor, supplier, or private labeler of the 10 product. 11 (2) CERTAIN DRUG PRODUCTS.—It shall be un- 12 lawful for an online store, an online marketplace, or 13 a seller to offer for sale in commerce to consumers on 14 an internet website a drug that is not subject to sec- 15 tion 503(b)(1) of the Federal Food, Drug, and Cos- 16 metic Act (21 U.S.C. 353(b)(1)) and that is required 17 to be marked under section 304 of the Tariff Act of 18 1930 (19 U.S.C. 1304) unless the internet website de- 19 scription of the dr [Text truncated for display. Full text available on Congress.gov.]