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Guards Needed in the Group Chat: PPE and Counterfeiters

PPE whatsapp

Guards Needed in the Group Chat: PPE and Counterfeiters

WhatsApp is great. It’s so great, in fact, that it is the dominant messaging application in over 169 countries. If you’re one of its 2 billion users, you know the edge it has over other messaging apps. WhatsApp is appealing for several reasons: it has an easy-to-use interface; users can send messages, photos, video, and voice notes, and make voice calls; and perhaps most importantly, all of this is free.

Additionally, there are a host of features that appeal to businesspeople. Since WhatsApp works on Wi-Fi, it supports messaging and calling anywhere on the planet that a Wi-Fi connection exists. WhatsApp is platform agnostic. This eliminates the need for users to share the same operating system and connects any users on any smartphone, desktop, or laptop (contrast this with Apple’s iMessage, for example, which only allows iMessages to be transmitted between Apple devices). The ease of making connections via WhatsApp has facilitated relationships and potential partnerships between people that may have previously not been possible.

Separate from its features and connectivity, two primary advantages of WhatsApp are its speed and security. WhatsApp requires less bandwidth than other messaging apps. This means messages, photos, video, and voice notes are transmitted quickly. As the old adage “time is money” remains true, this gives WhatsApp a distinct advantage. Finally, WhatsApp provides end-to-end encryption of content. This means that only the sender and recipient can see messages and content.

WhatsApp’s speed and security advantages have come into play heavily during the worldwide pandemic. The United States is the largest importer of face masks, eye protection, and medical gloves, otherwise known as Personal Protective Equipment (PPE). However, it has experienced and continues to confront severe shortages. This is due in part to the overwhelming demand shock triggered by an acute need in healthcare and panicked marketplace behavior that depleted domestic PPE inventories. The interruptions in the global supply chain caused by covid only served to amplify this problem.

When PPE does become available, buyers are in a desperate race to acquire this very limited commodity. They have contracts to fulfill and end-users that have to be served. This is where WhatsApp helps buyers maintain an edge over their competitors. WhatsApp ensures that buyers and sellers have instantaneous access to the information regarding the availability of and demand for PPE, and can connect users from around the globe. There are a plethora of WhatsApp groups devoted entirely to the buying and selling of PPE. When sellers procure PPE, they post this information on these WhatsApp group chats. It’s a first-come, first-served arena, where the first buyer to purchase PPE that becomes available receives these coveted items.

A downside to the free-flowing information regarding PPE on WhatsApp is that this time crunch, pressure, and restricted supply in the PPE marketplace makes these WhatsApp groups a perfect breeding ground for counterfeiters. Sellers will post offers to sell PPE, claiming, for example, that the items are genuine 3M products. At times, sellers are aware that the items are counterfeit, but will make the claim genuine. Other times, the seller has been duped by a supply chain partner and is unknowingly offering counterfeit items. Finally, there are outright scammers who offer genuine products, take buyers’ money, but ultimately never produce the item. Buyers are not totally unaware of these pitfalls. However, they have contracts to fulfill. They must procure PPE for their customers. This has led to certain buyers being unable to employ meticulous business practices. In other words, when PPE is offered on the WhatsApp groups, buyers will often rush to obtain the product without doing adequate due diligence as to its provenance and authenticity.

Why is this such a big deal, you ask? Some PPE is better than no PPE, right? Not so fast. There is a counterfeiting issue as well as a healthcare issue to be considered. Counterfeiters do not operate under regulations. The products they produce are often of poor quality and do not work as advertised. As they are not regulated, they may use harmful, toxic, and dangerous chemicals in their materials. The profits from counterfeit products often go to fund criminal or terrorist organizations who trade in illegal drugs, child labor, human trafficking, and more. When money is funneled to counterfeiters as opposed to genuine brands, the genuine brand loses potential billions in revenue. This lost revenue has many trickle-down effects, such as forcing companies to make layoffs, resulting in increased unemployment. While some employees may re-enter the workforce, a significant number do so at a decreased salary, which can have an obvious devastating effect on personal financial situations, and others simply do not find work.

Further, as companies harmed by counterfeiters make less profit, they pay fewer taxes. These taxes are part of the reasons we enjoy clean cities, well-funded schools, healthcare, and protections such as police and firefighters. And as companies recognize that they are being targeted by counterfeiters, they dedicate time and money to fighting this threat. Money invested into anti-counterfeiting measures and legal battles diverts funds that could otherwise be spent on research, product development, and marketing, and can also result in price increases for consumers. The end result is one that impacts the company is potential lost sales as well as the consumer. A company focused on defense against counterfeiters does not devote its resources to creating new, exciting and beneficial products for consumers.

Now consider the effects of counterfeit PPE products. We can all agree that health care providers and other front-line workers are heroes. They are the individuals disregarding the possibly deadly effects of coronavirus to do their jobs and help those in need. They are the ones in the hospitals dealing with critically ill patients, in nursing homes and long-term residential facilities helping to care for the oldest and most vulnerable among us. They are the police officers, firefighters, and paramedics, who are often the first to respond to emergencies and expose themselves to patients in need of assistance. As they are doing their jobs and sacrificing so much for the rest of us, they rely on PPE to provide them with a layer of protection against this deadly virus.

Now consider when a first responder or health care worker is unknowingly using counterfeit PPE. Counterfeit products are often of inferior quality. As such, it will not operate as expected and will not protect the wearer or others from covid as effectively. In fact, it may be made of toxic chemicals and materials that will, instead of protecting the wearer, cause it harm. This can range from the asymptomatic transmission of the disease to vulnerable individuals, to long-term health effects to death. Now more than ever, as we rely on masks, hand sanitizers, and wipes to combat covid, counterfeit PPE presents a clear and present danger to public health and safety and must be combatted vigorously.

There are several steps that buyers can take to ensure they are buying genuine products and avoid contributing to the problems of counterfeit PPE. Best practices are those research and acquisition procedures that should be utilized at all times. This includes doing research regarding offers. Is the seller a genuine authorized manufacturer or seller? Can he or she prove this legitimacy? You can reach out directly to the manufacturer to verify this information. Additionally, buyers should request documentation that supports the seller’s claim and examine it closely for authenticity. If a seller balks at providing this information, it is a distinct indication of fraud.

Business owners often rely on instincts regarding the honesty and authenticity of sellers. However, instinct alone is not a solid scheme. Buyers must remain informed and abreast of developments in productions, supply, and fraud.  Buyers can subscribe to Google alerts to ensure timely reception of this data. They can compare this knowledge to the quantities and offers in WhatsApp groups. Is the seller offering an unusually large quantity that does not match what companies are stating is available? Are the terms of payment or delivery atypical and do not line up with projected prices and delivery timelines offered by the official press? Can the seller provide a resume and references that will vouch for his reliability? Even better, do business owners you know personally have had positive experiences with the seller? If a seller is unable to come up with verifiable references or has a less than stellar resume, they may likely be a scammer.

Finally, physical examination of a sampling of the product is a simple way to verify authenticity. Products that come in questionable packaging, are missing lot numbers, omit manufacturer’s information, contain misspellings, or are misaligned are very likely fakes. If the product is of poor quality, is inconsistent from one sample to another, or has atypical design elements, it can also be assumed to be counterfeit. Finally, a lack of certification or approval label on or within the packaging, as well as an abbreviated form on the product itself, is an unmistakable indicator of a counterfeit PPE product. More information is available from the National Personal Protective Technology Laboratory, which is a specialized group within the CDC that has made available on its website excellent materials and clear guidelines on how to look out for potential counterfeits.

As covid continues to rage across the planet, PPE remains a top priority for countries around the world. While the supply of PPE has somewhat improved from the earliest, darkest days of the pandemic, it continues to remain a product in high demand with limited supply. WhatsApp groups are still a fantastic way to receive information about available products and can give buyers an edge over other competitors. However, it also continues to be a platform for counterfeiters who persist in their efforts to offload fake products, which, in turn, put users, business owners, and genuine brands at risk. The smart business owner can continue to utilize WhatsApp to his advantage but must take precautions and remain vigilant in guarding against the threat of counterfeit PPE.

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Bernard Klein is the president of Almont Group Inc. A dedicated father of three, he finds time to run and box while running a successful company that helps clients’ source goods overseas.

IMO 2020

Happy New Year: IMO 2020 is Here

A new year is right around the corner, which means IMO 2020 is finally here. Effective January 1, 2020, Annex VI of MARPOL, which is the international treaty governing pollution on the high seas, will mandate a significant decrease in sulfur emissions from vessels—reducing the current permitted level of 35,000 ppm to 5,000 ppm. Compliance with this new standard will primarily be achieved through the burning of low-sulfur fuel, although compliance choices include other methods like the use of scrubbers and liquid natural gas (“LNG”) as fuel. Under this regime, the primary responsible party in the freight market will be the vessel owner or operator. 

It is estimated that 10-20 percent of vessels after January 1, 2020, simply will not comply with the new IMO 2020 sulfur standard. Furthermore, because there is no industry standard specification for bunker fuel, there is an increased risk of fuel quality issues that lead to suboptimal performance and engine damage, which may give rise to inadvertent non-compliance. As a result, the industry should expect significant enforcement efforts of this new standard. 

The IMO does not have a global enforcement body. Instead, IMO member states pass laws implementing the provisions of Annex VI, which are enforced by bodies analogous to the US Coast Guard and US Environmental Protection Agency (“EPA”). In particular, port states can enforce compliance within their coastal waters while flag states may enforce the standard on vessels flagged in their countries. Both port states and flag states have the authority to arrest vessels, and issue fines, penalties and prison sentences. 

Historically, the United States has been a lead enforcer of MARPOL, and the industry should expect robust enforcement in the United States regardless of whether the non-compliance occurs in US or non-US waters. It is likely that US authorities will seek to enforce IMO 2020 through whether the vessel is maintaining true and accurate records, specifically its bunker delivery notes (“BDNs”) and fuel changeover logbook. Any listing of noncompliant fuel or false or inaccurate statements in those records could result in the US Coast Guard detaining the vessel and prosecuting the vessel owner, operator, bunker fuel supplier or other responsible party. Although the likelihood of direct non-compliance in US waters is low, even indirect non-compliance can still be enforced if the vessel’s records are false or inaccurate. 

Prior enforcement of IMO treaties—which includes multimillion-dollar fines and criminal penalties for captains and vessels—further demonstrates the likelihood of a robust US response to non-compliance. Similarly, whistleblower provisions will likely also bolster US enforcement of IMO 2020. Under US law, whistleblowers who report non-compliance can receive up to 50% of the monetary penalties levied against the owner, operator or vessel. With penalties in these cases exceeding tens of millions of dollars, the whistleblower provisions provide crew with a significant incentive to report non-compliance to US authorities. 

While direct liability of the owner and operator of the vessel is a primary concern, there are also varieties of implications non-compliance may have on other parties involved in the freight industry. For example, the detention of vessels and its owners or operators for non-compliance can also lead to delays in the shipment of goods and present significant obstacles and other logistical issues in getting a vessel released from US authorities. Moreover, the reputational harm that comes with non-compliance may also have a lasting effect on a shipper’s business. 

With IMO 2020 just around the corner, it is essential that all parties seek to implement robust compliance plans and due diligence of their counterparties—including charterparties, fellow shippers, vessel owners and operator and bunker fuel sale counterparties.

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David McCullough is a partner in the Energy & Infrastructure practice group at the New York office of Eversheds Sutherland (US) LLP. Nicholas Hillman, with Eversheds Sutherland (US) LLP in Washington DC, is not yet admitted to practice.