How China Intervened in a Maryland Effort to Ban Lead From Children’s Products – The Diplomat

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Many scholars have pointed to 2008 as a turning point in China’s diplomacy. Journalist and author of the new book on Chinese diplomacy titled “China’s Civilian Army: The Making of Wolf Warrior Diplomacy” Peter Martin wrote in a recent Foreign Affairs essay: “In the aftermath of the 2008–9 global financial crisis, Beijing began a shift toward a more assertive style of diplomacy, buoyed by the belief that its system had been validated by its swift response to the financial meltdown.”

There appears to have been a shift in China’s approach to subnational diplomacy, as well. Based on the research conducted for this series, the earliest known cases of PRC officials attempting to influence state legislative processes, as elaborated below and in the next article, all took place in 2008.

In 2007, a massive number of Chinese-made toys imported to the United States were recalled for containing an amount of lead that exceeded industry standards. In the absence of prompt policy response from the federal government, state legislators took up the call to address the emerging public health crisis.

On October 29, 2007, then-Maryland House Delegate James W. Hubbard introduced an emergency bill House Bill 8 (which was later introduced as House Bill 62 during the Regular Session in November) to prohibit the “manufacture, sale, offer for sale, importation, or distribution of specified lead-containing children’s products or lead-adulterated consumable products,” among other measures aiming at protecting Maryland citizens, in particular, children, from lead poisoning.

On January 30, 2008, Hubbard received a faxed letter (a copy can be viewed here) from a Chinese government official, namely, the deputy director general of China World Trade Organization Technical Barriers to Trade (WTO TBT) National Notification & Enquiry Center in Beijing, written in Chinese and translated into English. The letter asserted that certain provisions in his bill lacked reasonable scientific and technical basis, risk assessment, clarification, or limitation, and thus should be revised or canceled. The letter made additional complaints opposing the bill, including claiming that the proposed regulation “is discriminatory against foreign commerce” and does not follow “international standards,” among others. The letter alleged, without much explanation, that Hubbard’s bill could violate WTO law if enacted.

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Hubbard discussed the incident with the Forum on Democracy and Trade, a former DC-based organization that advised subnational officials on “legislative implications of international trade agreements.” The Forum then analyzed the PRC’s comments. Its preliminary analysis stated that the PRC letter “contain allegations (1) that are not always clear or specific, in part perhaps because of an awkward translation of the comments from Chinese into English, and (2) that are not fully explained either in terms of the facts or in terms of WTO law.”

Hubbard was surprised to receive such a missive, partly because his bill did not specifically mention the PRC as the country of origin for lead-containing consumer products, as initially he had no intent of targeting it. “HB62 attempts to protect Maryland kids from lead tainted toys, such as those coming from China, and other specific lead tainted products, irrespective of where they are manufactured,” Hubbard said in a press release issued on February 6, 2008 titled “China Works to Defeat Maryland’s Lead-free Bill” (full text here).

“China’s remarks lead me to think they are more concerned with selling us their lead tainted toys than they are with the health of our kids,” Hubbard added. “It concerns me deeply that China would interfere in our state’s legislative process, telling us how we can and cannot act to protect the best interests of our children.”

On the same day, Hubbard also sent a letter to his colleagues in both chambers of the Maryland state legislature (full text here), in which he emphasized: “This interference in our legislative process concerns me deeply as I hope it does you.” He went on: “I believe that this interference in the state of Maryland’s legislative authority is alarming and should not be taken lightly.”

As noted in his letter, Hubbard initially believed that the PRC was alerted to his legislation by persons who may be with the United States Trade Representative (USTR) office. In another letter (full text here) to then-U.S. Trade Representative Susan C. Schwab, Hubbard sought clarification from the federal government (then the Bush administration) on the matter, specifically, “what, if any international trade agreements might have any application to Maryland State law.”

“We are at a loss to understand why the United States Government would encourage China to bring a trade case against legislation which would apply to any manufacturer of any poisonous product targeting the children’s market irrespective of where that product was made,” Hubbard stated. “Further we cannot understand why any representative of the United States Government would suggest to a foreign government that it become involved in the legislative process of the State of Maryland.”

In a response letter dated February 15, 2008 (full text here), Schwab assured Hubbard that: “No one in the Administration has encouraged China or any other country to bring a trade case against state or federal legislation. We have been careful to ensure that our international trade agreements safeguard the right of governments to enact laws and regulations to protect human health and safety. The authority of the Maryland General Assembly to take action to protect the children of Maryland is beyond question.”

Schwab went on to explain that the PRC’s comments were prompted by a notification submitted by the U.S. government as part of its obligations to the World Trade Organization Technical Barriers to Trade (WTO TBT) agreement, which requires member nations to alert other WTO trading partners to all federal and state proposed legislation that may pose barriers to international trade. She stressed: “While foreign governments and companies may seek to comment on our proposed regulations – as they are free to do anyway in this country – our states and the federal government remain fully empowered to take action needed to protect the public.”

Further, Schwab admitted that the notification of Hubbard’s proposed bill was inadvertent as “the WTO notification system normally calls for us to notify proposed agency regulations rather than federal or state legislative proposals” and promised that such a mistake would not be repeated.

Meanwhile, the Maine State Legislature had passed a similar measure, the “Kids Safe Product Law (LD 2048),” which was signed into law in April 2008. Upon learning of the incident in Maryland, and out of concerns that the Maine state legislation could receive the same pushback, on April 22, 2008, Maine State legislature’s Citizen Trade Policy Commission sent a letter to USTR, requesting information about the federal government’s process of notifying WTO of impending state legislation and seeking clarification regarding the PRC communication Hubbard received. Then-Commission co-chairs, Senator Margaret R. Rotundo and Representative John L. Patrick, stated: “We were alarmed by the fact that the PRC appeared to be applying pressure on the Maryland General Assembly to not pass this law. The commission members feel this is an absolutely unwarranted intrusion into the decision-making processes of states.”

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Then-Assistant USTR for Intergovernmental Affairs and Public Liaison Tiffany M. Moore responded on Schwab’s behalf. Moore repeated the same statements made in Schwab’s earlier letter to Hubbard, such as “state legislatures remain fully empowered to take action to protect the public” and that the WTO notification system normally requires USTR to “provide notification on federal agency regulations but not federal or state legislative proposals.” Moore also went on to explain that certain state legislative proposals had been included in the notifications “inadvertently” and that USTR had taken steps to ensure it would not happen again.

HB 62 passed the Maryland legislature in April and became law in May 2008. As Dr. Petros C. Mavroidis, a professor of foreign and comparative law at Columbia Law School and an adviser to the WTO, noted, it’s odd that despite the stern letter to Hubbard China never pursued formal action after the bill became law. If a measure China objected to was adopted in 2008, “Why did not China take the case to the WTO then?” Mavroidis told The Diplomat via email.

Then it became apparent that – despite the USTR assurances – the Chinese government was again notified of another bill from Hubbard.

On May 9, 2008, Hubbard received another letter written in Chinese and English from Beijing, opposing HB 56, which he introduced in the 2008 Regular Session to ban bisphenol A (BPA) from children’s products. According to media coverage at the time and a December 2008 report published by Public Citizen’s Global Trade Watch, in the letter the Chinese government claimed that there was “no specific scientific evidence” proving BPA-containing products are dangerous to children and that the proposed ban was not the “least trade restrictive” measure available to pursue (as required by the WTO TBT agreement). The then cutting-edge bill did not pass and was eventually withdrawn with regret, but lawmakers in other states, such as Minnesota, Connecticut, New York, Massachusetts, and California, have successfully taken the lead to address the issue.

What Hubbard was not aware of at the time was, as events unfolded in his battle with Beijing, a fellow legislator from another East Coast state shared similar experiences.

Editor’s note: This article is part of an ongoing series published by The Diplomat on “How China Influences Measures and Interferes in Democratic Processes of U.S. State Legislatures.”



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