Seizure of counterfeit COVID-19 goods highlights that U.S. Customs and Border Control are being vigilant

March 23, 2020

Commercial Litigation Alert 

Author(s): Daniel A. Schnapp, John Sandweg, Rachel S. Winkler, Catherine A. Savio

Recent seizures by the US Customs and Boarder Protection of COVID-19 goods demonstrates the heightened attention being paid to imported goods and potentially counterfeit products.

Companies and businesses that are importing goods from overseas into the United States should be aware that U.S. Customs and Border Protection(CBP) and U.S. Immigration Customs Enforcement (ICE) are cracking down on the import of counterfeit COVID-19-related products. Awareness of the dangers associated with the purchase of counterfeit goods of any type is paramount to ensuring public health and safety.

This week, CBP seized fake COVID-19 testing kits at Chicago’s O’Hare International Airport. The kits were shipped from the United Kingdom and purported to include tests for COVID-19, as well as meningitis and salmonella.

Tests are not the only potential counterfeit products that may be sold as a result of the COVID-19 pandemic— on March 19, CBP officers at the El Paso Port of Entryseized a shipment of cleaning products after noticing that many of the bottles label “bleach” had no safety seals, and laboratory testing indicated that many of the items were completely diluted with water. Amazon sellers have also been issuing warnings to consumers against purchasing counterfeit facemasks. PacingMed—the best seller of disposable medical masks on Amazon—informed customers their face masks were sold out, asking customers: “Please do not buy orders from other sellers to avoid getting counterfeit products…”

CBP and ICE have statutory authority to inspect and stop imports into the U.S. and may levy both civil and criminal penalties for counterfeit goods, including potential jail-time for serious counterfeit violations.

Of course, not all imported goods that are suspected of being counterfeit will turn out to be so, and other defenses may be available to those companies and businesses accused of importing counterfeit goods, including all defenses applicable under the Lanham Act. 18 U.S.C.A. § 2320 (West); U.S. v. Infurnari, 647 F. Supp. 57, 2 U.S.P.Q.2d 1072, 1074 (W.D. N.Y. 1986).

We recommend that you consult counsel if you have purchased potential counterfeit COVID-19-related products, or if you have been accused of the illegal import of such products.

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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