Guest Post: Section 301 on Forced Labor - A Closer Look at the Public Hearings
This is a guest post by Ilaria Colombo, PhD Candidate, Bocconi University
Introduction
The Section 301 Investigation on forced labor has reached the stage of the public hearings. Between April 28th and 29th, around 60 representatives of countries, business associations and non-governmental organizations offered their input to inform the United States Trade Representative’s (USTR) determination following the initiation notice published early in March. As already highlighted by Desiree LeClercq’s post, among the new surge of Section 301 investigations following the International Emergency Economic Powers Act (IEEPA) Supreme Court Ruling, in this case the USTR is investigating “acts, policies and practices of certain countries related to the failure to impose and effectively enforce a prohibition on the importation of goods produced with forced labor”. In other words, this investigation aims to determine whether the absence or non-implementation of import bans for products made with forced labor in 59 countries, plus the European Union, negatively affects U.S. commerce, on the basis that U.S. exports end up unfairly competing with goods tainted with forced labor in those markets. The crux of the matter is therefore not to ascertain whether these economies produce, or export goods made with forced labor, but rather whether they have an adequate system in place to prevent such goods from being imported into their territory.
I reviewed the publicly available hearing transcripts to see how the public testimony addressed some of the questions set out by USTR in the initiation notice. Here are a few reflections on notable trends and issues that emerge from the discussion.
1) Whether any economy subject to the investigations maintains or is in the process of establishing a forced labor import prohibition, and whether any such import prohibition is being effectively enforced
On the first question, the hearings confirm many concerns raised by civil society on the design and potential effectiveness of forced labor import bans, but they also contain relevant information about countries’ recent developments on this issue. The U.S., unsurprisingly, emerges as the only country where forced labor import prohibitions operate in a relatively structured way, while to date a limited number of countries formally have, or are moving towards, the adoption of import bans. While Canada and Mexico adopted import bans in accordance with their USMCA commitments (art. 23.6 USMCA), some testimonies pointed out that these mechanisms have so far delivered limited results, with Mexico in particular posing persistent issues of transparency and evidentiary burden, despite regulatory updates in late 2025 (see pp. 42-43 Day 1 and pp. 66 -70 Day 2).
Beyond the USMCA bloc, several country representatives affirmed that they are at different stages in developing forced labor import prohibitions: some noted that import prohibitions are already introduced in principle, but still await implementing regulations (Pakistan and Indonesia); others referred to legislative proposals that are expected to be discussed and adopted in the near future (Ecuador and Peru); others indicated that such mechanisms are being considered, with policy discussions still ongoing (Guatemala). There is no doubt that some of these legislative efforts are, in large part, a response to commitments undertaken in recent trade deals with the U.S. (on this point, see Simon Lester’s post). While there was no representative of the European Union sitting at the hearings, the forthcoming EU Forced Labour Regulation was mentioned by some testimonies – mainly to stress potential design gaps, such as the absence of a rebuttable presumption and unclear evidentiary threshold (see pp. 81-82 Day 1).
Beyond determining which country has in place an import prohibition, an interesting point that emerges from the hearings is how testimonies understood “effective enforcement”. The discussion did not just revolve around how many countries have an import ban in place and the number of import restrictions imposed. Several comments emphasized that the mere existence of an import prohibition of goods made with forced labor is only the tip of the iceberg. What matters is whether countries have the tools, resources, and institutional capacity to make it work in practice (see p. 33 Day 1). This includes financial resources, data systems, specialized customs units, and investigative capabilities, as well as access to technical assistance and capacity-building programmes (see pp. 16-17, 33-34, 60-61 Day 1). Due to regulatory complexity, time also emerged as a key factor, with a number of interventions suggesting that a cooperative approach and phased implementation framework were preferable (see pp. 17, 21-22 Day 1).
Within this broader perspective, U.S. actions themselves came under scrutiny. Some testimonies stressed that the U.S. needs to ensure more consistent enforcement of its own import ban regime if it aims to provide a credible example for other countries, especially considering that Uyghur Forced Labor Prevention Act (UFLPA) and Section 307 investigations appear to have declined in recent months (see p. 22, 57 Day 1); and second, it should act as a partner by sharing information, expertise, and best practices (but see LeClercq’s post for a critique on this), including by strengthening, rather than stepping back from, multilateral cooperation through the International Labour Organization (see p. 23 Day 1).
Against this background, several testimonies suggested that using tariffs or other trade restrictions to push countries to adopt import bans may be ineffective or even counterproductive. Where such measures are introduced only formally, without the necessary political commitment and resources, they risk remaining on paper only and failing to deliver meaningful enforcement in practice.
2. The extent to which the failure of any economy to establish and effectively enforce a forced labor import prohibition is unreasonable, discriminates against U.S. goods, or constitutes a persistent pattern of conduct that permits any form of forced or compulsory labor
With this question we enter the core of the investigation. In order to take action against the countries listed in the initiation notice, USTR must determine that the acts, policies, or practices of a foreign country are unreasonable. Under Section 301(d)(B) of the Trade Act of 1974, such unreasonableness may arise in several circumstances. Based on the initiation notice, two appear particularly relevant in this case, namely when a foreign country’s acts, policies, or practices (i) deny fair and equitable market opportunities for U.S. goods by tolerating systematic anticompetitive activities by enterprises (§301(d)(B)(i)(IV)) or (ii) constitute a persistent pattern of conduct that permits any form of forced or compulsory labor (§301(d)(B)(iii)(III)).
In the first case, the testimonies were asked to provide evidence that U.S. goods are competing with products made with forced labor in foreign markets, and to assess the extent to which this restricts their market opportunities. The positions emerging from the hearings are polarized on this point. On the one hand, private-sector testimonies - particularly from the steel, aluminum, polysilicon, chemicals, and wood sectors - consistently argue that forced labor operates as a hidden subsidy. By artificially lowering production costs, forced labor is considered to confer a structural competitive advantage on foreign producers, enabling them to undercut U.S. goods in markets that lack an import ban. What is striking, however, is that across the two days of hearings this claim is repeatedly asserted rather than substantiated (see, for instance, pp. 125, 186, 224 Day 1, pp. 22-23, 38-39 Day 2). For example, one testimony notes that “Chinese polysilicon sells for roughly 4 to 5 dollars per kilogram, compared with 18 to 20 dollars for non-Chinese supply. China’s forced labor permeates the entire solar supply chain” (p. 123 Day 1). Yet, like many similar statements, this testimony does not provide a clear basis for establishing if, and isolating how much of, these price differences are actually attributable to forced labor, as opposed to other potential factors (pp. 174, 213 Day 1). On the other hand, other testimonies, such as those concerning tobacco/cigars or oil and gas, point in a different direction: when repeatedly asked in follow-up questions whether their products compete against imported goods produced with forced labor in third markets, they tended to exclude that this was the case (pp. 178-180, 285-286 Day 1).
The second case, that is, whether the absence of an import ban constitutes a persistent pattern of conduct that permits any form of forced or compulsory labor, received less attention during the hearings, but two relevant testimonies engaged with it from a pure legal perspective. Professor Nedumpara, speaking as the representative of India, made a clear point: a persistent pattern of conduct “implies that the conduct of the state should be continuous and must result from wilful action or inaction to do something…only within the territory where its effects are felt” (pp. 113-114 Day 2). This means that the mere absence of an import ban on goods made with forced labor cannot be equated with permitting forced labor elsewhere. Professor Zang, in her capacity as a representative of the China Chamber of International Commerce, stressed that there is no international obligation to adopt an import ban of this sort, but it represents a U.S. policy choice which cannot represent a (global) “baseline for fairness and equity”. (pp. 95-96 Day 2).
3. What actions should be taken, and, in the event they are, the level and scope of duties or import restrictions
The positions emerging from the hearings are again divided, although a significant number of testimonies, for different reasons, do not support the use of tariffs. On the one hand, civil society actors consistently emphasized that, if the objective is to encourage the adoption and effective implementation of import bans, priority should be given to technical assistance and capacity-building in order to foster rather than undermine cooperation in this field (see pp. 104, 108, 192 Day 1). On the other hand, several private-sector testimonies highlighted that additional tariffs would risk harming U.S. industries, without necessarily addressing forced labor concerns (pp. 104, 160, 163, 207 Day 1; Day 2, p. 26). At the same time, anticipating possible action by USTR, many of these actors suggested narrowly targeted measures, rather than generalized tariffs, accompanied by phase-in periods and specific exemptions. These include, for example, exemptions for USMCA goods, for countries engaged in cooperative frameworks with the U.S., or for inputs that are not readily available on the U.S. market (pp. 144–148 Day 1; pp. 27–28, 51, 54 Day 2).
At the same time, other testimonies, particularly in sectors such as polysilicon and chemicals, expressed support for the imposition of tariffs. However, these were primarily viewed as means to offset the alleged competitive disadvantages that U.S. products face on the U.S. market, instead of as tools to exercise economic pressure on other countries to adopt import bans that would ensure fair competition in foreign markets (pp. 126, 201, 223, 227 Day 1; pp. 47, 53, 60, 63 Day 2).
Some final thoughts
It is no mystery that Section 301 is being used as a possible substitute for IEEPA tariffs, but in this case, it seems unlikely that the USTR has obtained sufficient evidence to take action. Regardless of the outcome, there is a risk that the strategic, yet arguably pretextual, use of this Section 301 investigation will reduce or distort the debate on how trade and policy instruments can contribute to making global supply chains more just. If framed in protectionist terms, this debate risks losing sight of the legitimate role that such instruments can play. As several civil society actors noted during the hearings, import bans on goods made with forced labor have the potential, among a wider set of legal and policy instruments, to address this serious problem.
The need for a more developed debate is illustrated by the fact that, for instance, throughout the hearings forced labor is never defined. Testimonies proceed as if there were a shared understanding of what constitutes forced labor and which elements are required for a situation to qualify as such. Yet, in many cases, the term seems to be used loosely, referring to broader labor violations or problematic working conditions that may not meet the international legal threshold of forced labor. This suggests that further research is needed to clarify how forced labor is understood and interpreted in the trade context.
Finally, one aspect that only emerges indirectly from the hearings, but is central in practice, is the role of human rights due diligence frameworks. Effective enforcement of these import bans ultimately depends on private businesses’ ability to trace their entire supply chains, audit production processes, identify risks, and implement mitigation measures. By investigating whether countries have such systems in place and, indirectly, encouraging their development, the U.S. might turn into an unintended driver of mandatory human rights due diligence frameworks, a development that can be seen as positive but that is actually, in its own way, somewhat ironic, considering the resistance shown towards the EU Corporate Sustainability Due Diligence Directive by the U.S. government only last year.
Perhaps it is never too late to change course.