Made in China: Who Bears the Loss and Why?

Penn State International Law Review Volume 27 Number 3 Penn State International Law Review Article 21 5-1-2009 Made in China: Who Bears the Loss and Why? Elizabeth Ann Hunt Follow this and additional works at: http://elibrary.law.psu.edu/psilr Part of the International Law Commons Recommended Citation Hunt, Elizabeth Ann (2009) "Made in China: Who Bears the Loss and Why?," Penn State International Law Review: Vol. 27: No. 3, Article 21. Available at: http://elibrary.law.psu.edu/psilr/vol27/iss3/21 This Comment is brought to you for free and open access by Penn State Law eLibrary. It has been accepted for inclusion in Penn State International Law Review by an authorized administrator of Penn State Law eLibrary. For more information, please contact . Made in China: Who Bears the Loss and Why? Elizabeth Ann Hunt* Your own safety is at stake when your neighbor's house is ablaze. -Horace' I. INTRODUCTION "The bottom line is: If you're worried about Chinese exports, rest assured the local stuff is without doubt many, many times worse., 2 CNN correspondent John Vause, who has continued to reside in Beijing during China's product safety crisis, 3 states the heart of the matter. "When ordering at restaurants, I wonder: Is that drug-tainted fish and shrimp? Did that pork come from a pig that was force-fed wastewater? Any melamine added to those noodles?"4 A blatant disregard for safety within China5 has caused widespread concern on the part of the United States and China's other trading partners.6 Among the first major * J.D. Candidate, The Dickinson School of Law of the Pennsylvania State University, 2009; B.A., Cornell University. This Comment is dedicated to my parents and my grandparents, to whom I am eternally grateful. 1. ThinkExist, http://thinkexist.com/quotes/horace/3.html (last visited May 11, 2009). 2. John Vause, OrderingFood in Beijing Makes Me Nervous, CNN, July 26, 2007, http://www.cnn.com/2007/WORLD/asiapcf/07/26/btsc.vause.china/ at available index.html. 3. See id. 4. Id. 5. See generally Shoppers Offered Few Safeguards against Wild West Imports, CNN, July 26, 2007, available at http://www.cnn.com/2007/US/07/26/madeinchina. overview/ [hereinafter Wild West Imports]. 6. See China Callsfor CoolerHeads over Product Safety, REUTERS, May 23, 2007, (discussing available at http://www.alertnet.org/thenews/newsdesk/PEK18216.htm poisoned Chinese toothpaste that was exported to the Dominican Republic); see also Chinese, Japanese Officials Meet to Discuss Poisoned Dumpling Scare, INT'L HERALD TRIB., Feb. 4, 2008, available at http://www.iht.com/articles/ap/2008/02/04/asia/ASGEN-Japan-China-Dumpling-Scare.php (stating that many Japanese stores and restaurants no longer sell Chinese products). PENN STATE INTERNATIONAL LAW REVIEW [Vol. 27:3,4 indications of a problem with Chinese products was the March 15, 2007 discovery by the Food and Drug Administration ("FDA")7 that Chinese wheat gluten contaminated with melamine had been processed into North American pet products and was killing cats and dogs.8 The consequent pet deaths resulted in over one hundred lawsuits 9 being filed against companies that had sold the tainted products,10 including one lawsuit against a Chinese supplier." Melamine proved to be just the beginning of the scare, 12 as Chinesemade toothpaste, 13 seafood products, 14 tires,1 5 and toys 16 were recalled en masse. Most notably, Mattel Inc. was forced to recall over twenty-one million Chinese-made toys in a five-week period. 17 Many of the toys were defective in design, 18 including Polly Pocket dolls that were 7. See Safety of Chinese Imports: Oversight and Analysis of the Fed. Response before the S. Comm. on Commerce, Sci., and Transp. (July 18, 2007) (statement of Murray M. Lumpkin, M.D., Deputy Comm'r for Int'l and Special Programs), availableat http://www.fda.gov/ola/2007/chineseimportO71807.html [hereinafter Oversight and Analysis]. 8. See Jeromy Lloyd, Wake up and Smell the Lead, MARKETING MAG., Sept. 10, 2007, available at http://www.marketingmag.ca/english/news/media/article.jsp?content20070910_70136_70136. 9. See Brandon Bailey, Lawsuit Targets Chinese Supplier: Tainted-Pet-FoodCase Seeks Damagesfrom Chemical Firm, SAN JOSE MERCURY NEWS, Aug. 9, 2007, available at http://www.mercurynews.com/ (click the Help tab, then the Past Articles tab; enter "Lawsuit Targets Chinese Supplier" into the "Enter Search Terms" box; select "in headline" from the "Appearing" box; select "2007" in the "Choose articles from" section; hit "Search"). 10. See Oversight and Analysis, supra note 7. Melamine is a molecule that has a number of industrial uses, including use in manufacturing cooking utensils. It has not been approved for use as an ingredient in human or animal food in the U.S., and it is not permitted to be used as fertilizer in the U.S., as it is in some parts of the world. Id. 11. See Bailey, supra note 9. 12. See Wild West Imports, supra note 5. 13. See Oversight and Analysis, supra note 7. 14. See id. 15. See David Barboza & Andrew Martin, Chinese Company Denies Tire Defect, N.Y. TIMES, June 27, 2007, available at http://www.nytimes.com/2007/06/27/business/ worldbusiness/27tires.html?_r= 1&oref=slogin. 16. See Louise Story & David Barboza, Mattel Recalls 19 Million Toys Sent from China, N.Y. TIMES, Aug. 15, 2007, available at http://www.nytimes.com/2007/08/15/ business/worldbusiness/1 5imports.html?_r= I &pagewanted=all&ore f=slogin. 17. China Seizes on Mattel Apology to Emphasize Safety, REUTERS, Sept. 24, 2007, availableat http://www.reuters.com/article/healthNews/idUSPEK2141420070924. 18. See Magnets in Toys, a Hidden Danger,Consumer Reports Blog, Nov. 21, 2006, http://blogs.consumerreports.org/safety/2006/11/magnets-in-toys.html (last visited May 11,2009), The magnets in these popular toys may look innocuous: they are only 1/8-inch in diameter and are embedded in the hands and feet of some dolls and in plastic clothing, hair pieces and other accessories. But they are very dangerous if they fall out and are swallowed or aspirated. When more than one magnet is 20091 MADE IN CHINA manufactured with unsafe magnets.1 9 Other toys were coated with excessive amounts of lead paint, 20 causing controversial medical monitoring class action lawsuits to be filed.21 If what John Vause says is ' 22 true, and Chinese products in China are "many, many times worse than the Chinese products exported to the United States, an exploration of the Chinese tort system and the recourse available to Chinese plaintiffs may provide some provocative answers as to how the "Made in China" scare was allowed to happen and how another scare can be prevented. This Comment will explore the effectiveness of litigation as a tool for protecting both United States and Chinese consumers when regulatory enforcement proves inadequate. 1I. BACKGROUND The acting chair of the Consumer Product Safety Commission ("CPSC"), an independent federal regulatory agency, 23 has indicated (...truncated)