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D.C. Circuit to Reconsider Conflict Minerals Ruling; Initiatives Proceed in the European Union and China

Recent developments in the U.S., European Union and China underscore the dynamic nature of evolving supply chain due diligence requirements and expectations for companies sourcing tin, tantalum, tungsten and gold.  The following news alert highlights activities that may influence companies’ approaches to conflict minerals in the near term.

D.C. Circuit to Reconsider Conflict Minerals Ruling

The U.S. Court of Appeals for the D.C. Circuit granted the petitions of the Securities and Exchange Commission (“SEC”) and intervenor Amnesty International for panel rehearing in the conflict minerals case, National Association of Manufacturers, Inc. v. Securities and Exchange Commission(“NAM v. SEC”).

In NAM v. SEC, the court upheld most of the SEC conflict minerals rule earlier this year but also ruled that the requirement in the rule to describe products as “not found to be DRC conflict free” was compelled speech in violation of the First Amendment (see our April 16, 2014 news alert for details).  The Court applied heightened scrutiny in reaching this holding, rejecting the SEC’s argument that rational basis review – as set out in an earlier consumer deception case, Zauderer v. Office of Disciplinary Counsel – should apply.

The SEC and Amnesty International petitions seek reconsideration in light of another D.C. Circuit case, American Meat Institute v. U.S. Department of Agriculture, which addressed the applicable standard of review in the context of a First Amendment challenge to country-of-origin disclosures for meat products outside the consumer deception context.

In the November 18, 2014 per curiam order granting the petitions for panel rehearing with respect toNAM v. SEC, the court directed the parties to file supplemental briefs on the following issues:

  1. What effect, if any, does this court’s ruling in American Meat Institute have on the First Amendment issue in this case regarding the conflict mineral disclosure requirement?

  2. What is the meaning of “purely factual and uncontroversial information” as used in Zauderer v. Office of Disciplinary Counsel and American Meat Institute?

  3. Is determination of what is “uncontroversial information” a question of fact?

The panel rehearing will proceed before the same three-judge panel of the D.C. Circuit (composed of Judges Srinivasan, Sentelle and Randolph) that issued the decision in NAM v. SEC.  The SEC’s and Amnesty International’s briefs are due within 20 days, with NAM’s brief due 20 days thereafter.  Given this timeline, it is unlikely the panel will conclude its rehearing before the end of the calendar year.  The SEC and Amnesty International had also petitioned the court for rehearing en banc, but a separate order issued on November 18 states that consideration of these petitions is deferred pending the dispositions of the petitions for panel rehearing.  In other words, the D.C. Circuit will not consider rehearing by the full court until after the conclusion of the panel rehearing.

Draft European Union Regulation

In the European Union (“EU”), the Commission’s conflict minerals proposal is continuing to proceed through the ordinary “co-decision” legislative procedure, notwithstanding new Commission leadership following the 2014 elections.  Member States are reported to share broad consensus on the basic approach set out in the Commission’s draft Regulation, i.e., that the Regulation will set forth a voluntary self-certification scheme for importers of tin, tantalum, tungsten and gold.  Unlike the SEC rule, the EU approach to  identifying conflict and high risk areas will be global in scope.  On November 6, the Committee on International Trade of the European Parliament held its first debate on the conflict minerals proposal, and a hearing before the International Trade and Development Committees is planned for early December.  The Parliament debate is expected to continue well into 2015, and the Regulation is not likely to be finalized before late 2015.  The EU is expected to adopt additional measures creating public procurement incentives for certain products containing 3Ts and gold that are sourced in conformance with the new certification and supply chain due diligence standards.

Conflict Minerals Initiatives in China

Meanwhile, the Chinese Chamber of Commerce for Minerals, Metals and Chemicals Importers and Exporters (“CCCMC”), an industrial association affiliated with the Chinese government, has issued a new Guideline for Social Responsibility in Outbound Mining Investments.  The Guideline is designed to encourage Chinese companies to develop specific corporate social responsibility strategies and management systems for mining investment and operations.  The Guideline includes provisions directing companies to conduct risk assessments to determine whether traded minerals originate in or are routed through conflict-affected areas (which are not limited to the DRC and adjoining countries), adapt supply chain due diligence to the specific needs of conflict-affected areas, and obtain a third-party audit of and publicly report on such due diligence measures.  The Guideline references the Organisation for Economic Co-operation and Development (“OECD”)’s Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas as a resource for further guidance on conducting due diligence.  The Guideline also contains a number of additional provisions relating to social responsibility in the mining sector, including prohibitions on the use of child and forced labor and provisions relating to worker safety and environmental protection.

The Guideline is part of a series of joint activities and coordinated efforts planned between the CCCMC and the OECD pursuant to a Memorandum of Understanding signed by the two groups in October. 

© 2020 Beveridge & Diamond PC


About this Author

Graham C. Zorn, Environmental Law Attorney, Beveridge Diamond Law Firm

Graham C. Zorn is an Associate in the Washington, D.C. office of Beveridge & Diamond, P.C., with a general litigation, regulatory, and environmental practice.  Graham has represented individual businesses, trade associations, and municipalities in compliance, enforcement, and counseling matters involving the Clean Air Act, the Clean Water Act, CERCLA and other state and federal statutes.  He has worked extensively on a series of complex products liability and toxic tort cases related to alleged groundwater contamination involving a gasoline additive.  Graham has also counseled domestic...

K. Russell LaMotte, Environmental Law Attorney, Beveridge Diamond Law Firm

Russ helps global companies navigate international environmental regulatory regimes and develop product compliance and market-access strategies.

He served for over ten years as an international lawyer at the United States Department of State, representing the U.S. Government in designing, negotiating, or implementing most of the major multilateral environmental and oceans agreements. His experience and representative matters include: 

Chemicals, Substances in Articles, and Product-Related Environmental Compliance

  • Advising chemicals, pesticides, toy, and electronics companies on compliance with chemicals-related market access regulations, including Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH); Restriction of Hazardous Substances (RoHS); and other national-level chemical and article import notification schemes as well as working extensively on multijurisdictional projects involving complex market access and compliance challenges for chemical products overseas.
  • Advising companies and trade associations on regulatory requirements relating to the Stockholm Convention on Persistent Organic Pollutants (POPs), the Rotterdam Convention on Prior Informed Consent (PIC) for trade in hazardous chemicals, and the Basel Convention on trade in hazardous waste and conducting advocacy in these unique forums.
  • Representing companies on compliance and advocacy relating to regulatory requirements applicable to products containing or made with ozone-depleting substances under the Montreal Protocol and U.S. Clean Air Act.
  • Counseling and representing electronics importers on the U.S. excise tax on goods manufactured with ozone-depleting substances.
  • Advising on supply chain risk management relating to conflict minerals, raw materials, ethical sourcing, and human rights due diligence.
  • Counseling consumer product and manufacturing companies on the implementation of U.S. Securities and Exchange Commission’s conflict minerals rule and related supply chain management issues.
  • Advising global clients on risk management relating to corporate due diligence, supply chain, and human rights, including United Nations Guiding Principles and disclosure requirements regarding forced labor in complex supply chains.



Lauren A. Hopkins, Environmental Attorney, Beveridge Diamond Law Firm

Lauren’s practice focuses primarily on global product stewardship, supply chain due diligence, and environmental advertising and marketing.

In particular, Lauren is well-versed in reporting requirements related to the use of conflict minerals in electronics, medical devices, and other consumer products.  She advises on issues including interpretation and implementation of the U.S. Securities and Exchange Commission’s conflict minerals rule, supply chain due diligence, and the preparation of conflict minerals disclosures.  She also assists...

Paul E. Hagen, Environmental Attorney, Beveridge Diamond Law Firm

Paul Hagen practices in the areas of U.S. and international environmental law. He counsels leading multinational corporations and trade associations on environmental compliance and market access requirements related to product design, supply chain management, and resource protection measures in the U.S. and in key markets worldwide. He also advises clients on the negotiation and implementation of regional and global environmental agreements, with a particular emphasis on treaties and related legislation impacting the chemicals, electronics, and pharmaceuticals sectors.