Business Groups File Amicus Brief Calling USTR Tariffs Process ‘Flawed’

WASHINGTON – The National Retail Federation, the Retail Litigation Center, the American Apparel & Footwear Association, the Consumer Technology Association, the Footwear Distributors and Retailers of America, the Juvenile Products Manufacturers Association and the Toy Association today filed a “friend of the court” amicus brief in the U.S. Court of International Trade. The trade groups submitted the brief in support of businesses and their workers that have been negatively impacted by a series of escalating tariffs covering virtually all Chinese imports to the United States imposed by the United States Trade Representative (USTR).

In 2018, following a Section 301 investigation into China’s trade practices regarding forced technology transfer and intellectual property rights protection, the Trump Administration initiated several massive tariffs against Chinese imports. Thousands of American businesses have been forced to pay these taxes to import Chinese goods and products, which ultimately result in higher prices for U.S. consumers. The Biden Administration has kept these tariffs in place when American businesses are doing their best to safely serve customers, and keep workers on their payrolls, during the pandemic.

In September 2020, more than 6,000 plaintiffs filed lawsuits challenging the List 3 and List 4A tariffs as unlawful under Section 301 of the Trade Act of 1974 arguing that the USTR exceeded its authority when it imposed tariffs without attempting to connect them to any underlying investigation of China’s trade practices. The amicus brief supports the plaintiffs’ arguments and highlights USTR’s violation of its statutory obligations under the Administrative Procedure Act by failing to give adequate opportunity for, or consideration of, public comments.

The staggering scale and far-reaching effects of the proposed tariffs required USTR to take a thoughtful approach consistent with its statutory obligation under the Administrative Procedure Act. Instead, USTR imposed compressed public-comment timelines, which often gave businesses only a few days to analyze the impacts on supply chains and retail operations and develop thoughtful comments. To make matters worse, despite receiving nearly 10,000 comments and pieces of testimony, the overwhelming majority of which opposed the tariffs, USTR refused to respond to any of the identified concerns. 

According to the amicus brief:

“Those proposed tariffs implicated hundreds of billions of dollars of imports and impacted almost every facet of the U.S. economy.  Many stakeholders, including amici’s members must plan out their international supply chains and delivery schedules months in advance. Not surprisingly, these businesses needed time to review the hundreds of thousands of products they sell to evaluate the availability and feasibility of alternative non-Chinese sources and to assess impacts on supply chains and retail operations.”

“If USTR had satisfied its obligation to allow for meaningful comments from amici and others and had actually considered them, it would have recognized the considerable harm its actions would inflict.  The tariffs are a hidden tax on U.S. consumers, hurting domestic producers, retailers, and customers alike.  And, as predicted, they have had a significant adverse impact on the U.S. economy.”

The amicus brief was written by Joseph R. Palmore and Adam L. Sorensen of Morrison & Foerster LLP. To view the amicus brief in its entirety, click here.

About NRF
The National Retail Federation, the world’s largest retail trade association, passionately advocates for the people, brands, policies and ideas that help retail thrive. From its headquarters in Washington, D.C., NRF empowers the industry that powers the economy. Retail is the nation’s largest private-sector employer, contributing $3.9 trillion to annual GDP and supporting one in four U.S. jobs – 52 million working Americans. For over a century, NRF has been a voice for every retailer and every retail job, educating, inspiring and communicating the powerful impact retail has on local communities and global economies.

About Retail Litigation Center
The Retail Litigation Center, Inc. (“RLC”) is the only trade organization dedicated to representing the retail industry in the courts. The RLC’s members include many of the country’s largest and most innovative retailers. Collectively, they employ millions of workers throughout the United States, provide goods and services to tens of millions of consumers, and account for tens of billions of dollars in annual sales. The RLC seeks to provide courts with retail-industry perspectives on important legal issues affecting its members, and to highlight the potential industry-wide consequences of significant pending cases. Since its founding in 2010, the RLC has participated as an amicus in more than 150 judicial proceedings of importance to retailers. 

About the American Apparel & Footwear Association
The American Apparel & Footwear Association (AAFA) is the national trade association representing apparel, footwear and other sewn products companies, and their suppliers, which compete in the global market. Representing more than 1,000 world famous name brands, we are the trusted public policy and political voice of the apparel and footwear industry, its management and shareholders, its three million U.S. workers, and its contribution of more than $350 billion in annual U.S. retail sales. AAFA provides exclusive expertise in trade, brand protection, and supply chain & manufacturing to help our members navigate the complex regulatory environment and lower costs. Members gain unparalleled access to information and exclusive insights on regulation and policy, and premier opportunities for networking and collaboration.

About Consumer Technology Association
As North America’s largest technology trade association, CTA® is the tech sector. Our members are the world’s leading innovators – from startups to global brands – helping support more than 18 million American jobs. CTA owns and produces CES® – the most influential tech event in the world. Find us at Follow us @CTAtech.

About Footwear Distributors and Retailers of America
FDRA members range from small family-owned footwear businesses to multi-national footwear companies. Members include the majority of U.S. footwear manufacturers, brands, retailers and importers. In all, FDRA supports nearly 500 companies and brands worldwide, representing 95% of total U.S. footwear sales. Visit to learn more.

About Juvenile Products Manufacturers Association
The Juvenile Products Manufacturers Association (JPMA) is the voice of the industry on quality and safety for baby and children's products in North America. We do this by:

  • Advocating for safety through product certification programs and legislative and regulatory involvement;
  • Supporting a broad and diverse membership through member-only programming and industry promotion;
  • And by acting as a comprehensive source for baby product information and education.

JPMA members represent 95 percent of the prenatal to preschool products sold in North America.

About the Toy Association / /

Founded in 1916, The Toy Association™, Inc. is the not-for-profit trade association representing all businesses involved in creating and delivering toys and youth entertainment products for kids of all ages. The Toy Association leads the health and growth of the U.S. toy industry, which has an annual U.S. economic impact of $98.2 billion, and its roughly 900 members drive the annual $32 billion U.S. domestic toy market. The Toy Association serves as the industry’s voice on the developmental benefits of play and promotes play’s positive impact on childhood development to consumers and media. The organization has a long history of leadership in toy safety, having helped develop the first comprehensive toy safety standard more than 40 years ago, and remains committed to working with medical experts, government, consumers, and industry on ongoing programs to ensure safe and fun play.

As a global leader, The Toy Association produces the world-renowned Toy Fair New York and Toy Fair Dallas; advocates on behalf of members around the world; sustains the Canadian Toy Association; acts as secretariat for the International Council of Toy Industries and International Toy Industry CEO Roundtable; and chairs the committee that reviews and revises America’s widely emulated ASTM F963 toy safety standard.