The loophole that made Temu — and could kill it

How did Temu take over the world? And can it keep it?

How this video happened

It really is like I say in the video: I got a Temu drone for Christmas and wondered — how did this happen? How did we get to this place? I didn't expect the answer would take me to customs, but it did.

The video is here.

Check out more

Here's a link to the reaction video (for some paid tiers).

The ingenious way they test for forced labor

As with most topics I research, after de minimis I find myself stuck in Dunning-Kruger purgatory.

I'm not marked on the graph, but I'm there — slightly past the valley of despair, only a short distance into my trudge up the slope of enlightenment. Unfortunately, a rigorous publication schedule leads to a Sisyphus situation. Before I get to that plateau of sustainability, the rock slips away and I'm off to learn about styles of pizza (spoiler alert).

For this video, that missing enlightenment is the actual working day at customs  — I don't quite grasp it. From my different interviewees, I got a general picture of an organization that was overburdened, technologically slow to adapt, and overworked with or without the de minimis exemption.

This means that it's a challenge to enforce the law. After all, most shipments and small packages are coming from overseas. Without a vast enforcement network, you don't know what's going on in every factory abroad. You also can't rely in the honor system. The most obvious question is this: how does this organization actually determine when forced labor is used?

In the case of de minimis packages, it's pretty tricky. Due to the nature and massive volume of de minimis shipments, customs kind of just has to wave them through (which de minimis fighters peg as an opening for dangerous shipments, from fentanyl to bad cosmetics). But even on larger shipments, how do they determine the way the product was made? How can you figure out the true history of a shirt?

This report sheds some light on one method: the fascinating clues that the cotton itself can provide, at least in the case of fast fashion. By testing the cotton, scientists can roughly determine where it was from. If it came from the Xinjiang Uygur Autonomous Region, that means it likely used forced labor by Uyghurs, the oppressed minority population in China.

How does the test work? I don't want to "Yadda yadda yadda" past it two quickly, even though it gets me another Seinfeld reference. I find the simplified Customs description the most useful:

“Isotopic testing is a scientific method that identifies the atomic structure of naturally occurring materials, or a “fingerprint” of the material, affected by local environmental conditions.

For example, in the case of cotton, it is the environmental conditions experienced by the plant during growth, not the seed’s origin, that will determine the isotopic fingerprint of the cotton fiber.

When that fingerprint is compared to a library of like materials from various geographic areas, the test can determine that the raw material is consistent with the claimed geographic origin.”

Customs has started using this type of testing to help with enforcement efforts. It's a Sherlock Holmesian silver bullet, right?! Unfortunately, the shortcomings of this method quickly become clear. As Customs declares (pun intented):

Due to the cost and time frame to conduct isotopic tests, it is neither feasible nor effective to use isotopic testing as a single or exclusive tool to determine release of cargo.

So this type of testing isn't a quick and easy thing that can solve every problem. Even with big shipments, customs doesn't have the resources to do tons of isotropic tests. Customs largely shifts the burden of testing onto distributors in America (theoretically shifting some of the liability onto importers as well).

You can see how de minimis circumvents this type of testing. Big shipping container full of identical t-shirts? Take one shirt out, run a test, deduce the origin of the whole shipment. It's doable. Now imagine a billion (literally) individual packages? It's impossible. You just can't be opening and basically destroying every little de minimis package to test for Xinjiang cotton.

With de minimis shipments, there are also fewer firms to shift the burden to. With big imports, you have lots of levers to blame big companies. With de minimis, you can only blame Temu or Shein or some other random company in China, upon which you have no leverage or viable threat. Finally, there's little you can do about the stuff that isn't, you know, cotton.

So it seems that enforcement efforts, especially with de minimis, end up in the same place as me at the end of a research slog: aware of a solution, but perilously far from the plateau of sustainability.

Sources for the video

• Hate de minimis? You will bond with the work of Charles Benoit.

• Love de minimis? You will bond with the work of John Pickel. (Here's a podcast appearance, since that link is just a bio.)

• Want to learn a bit more about de minimis and practical customs work? Check out Zonos's YouTube channel, as well as their site and de minimis doc.

• Here are some of the policy recommendations by The Select Committee on the CCP.

• Here's the Etsy advocacy post I allude to but don't show on screen. Here's an article about her Senate appearance.

• And for good measure, here's eBay talking up de minimis.

• I didn't get to include the slow fashion caucus, but I found it a fun idea.

• I feature a lot of CSPAN clips in the video. (1, 2, 3, 4, 5, 6). Here's a DHS panel on forced labor.