Trump Transition: Shakeup at National Labor Relations Board Stalls NLRB Action (US)
It’s been a little more than a week since Inauguration Day, but the seismic shifts of presidential change in Washington, D.C. continue, now extending to and impacting the National Labor Relations Board (NLRB or Board). On January 28, President Donald Trump shook up the NLRB with two major personnel decisions: one anticipated, the other unprecedented.
In an expected move, President Trump fired Jennifer Abruzzo, the union-friendly General Counsel of the NLRB appointed under former President Joe Biden. But Trump also fired NLRB member Gwynne Wilcox, a Democrat also appointed by President Biden, leaving the Board with only two members.
In an early morning press release, now former NLRB General Counsel Jennifer Abruzzo announced that Tuesday, January 28, would be her final day on the job. The NLRB General Counsel serves as the agency’s chief prosecutor, selecting the cases to be heard and decided by the Board. Abruzzo’s departure should be welcome news to many employers. During her tenure, among other pro-union moves, she issued a slew of memoranda directing the work of the agency into controversial territory. For example, Abruzzo pursued aggressive enforcement action against employer non-competition and non-solicitation agreements, as guided by a May 2023 memorandum she authored wherein she articulated her view that restrictive covenants like non-competes “generally violate federal labor law.” A new Trump-appointed General Counsel is anticipated to rescind that memorandum and many others in which Abruzzo directed her enforcement efforts in the direction of her overtly pro-union interpretation of the National Labor Relations Act.
Likewise, a Trump-appointee majority NLRB is expected to abandon many of the Biden-era decisions issued by the formerly Democrat-appointee majority Board. However, right now, the Board cannot act, as it does not have a quorum of three members following the ouster of Member Wilcox. The only current Board members are Republican Marvin Kaplan, who President Trump appointed NLRB Chairman shortly after inauguration, and Democrat David Prouty. At least one of the three currently vacant Board positions will have to filled before the Board can resume issuing decisions. When that will happen is unclear.
ALERT: Trump Administration Issues “Pause” on Federal Grant Spending Effective January 28
On January 27, 2025, the White House Office of Management and Budget (“OMB”) released a memorandum regarding “Temporary Pause of Agency Grant, Loan, and Other Financial Assistance Programs” (OMB Memorandum M-25-13; hereinafter the “OMB Memo”)). The OMB Memo directs Federal agencies, inter alia, to: (1) identify and review all Federal financial assistance programs consistent with President Trump’s recent policies and Executive Orders (“EO”); and (2) “temporarily pause all activities related to obligation or disbursement of all Federal financial assistance, and other relevant agency activities that may be implicated by the executive orders” cited in the OMB Memo. The OMB Memo is effective January 28, 2025, at 5:00PM EST – though the breadth of its reach remains to be seen.
The OMB Memo’s first mandate undoubtedly applies to all Federal financial assistance and grant programs currently being managed by the Federal Government. This includes everything from NTIA’s Broadband Equity Access and Deployment Program (“BEAD”), to Commerce’s/NIST’s CHIPS for America Programs, and the billions of dollars Congress has appropriated under the Infrastructure Investment and Jobs Act (“IIJA”) and the Inflation Reduction Act (“IRA”) to numerous other federally funded programs. All programs will be reviewed to ensure they align with President Trump’s various Executive Orders, including those on foreign aid, DEI, and energy.
The real question, though, is the ultimate scope of the OMB Memo’s second mandate, to pause all obligations and disbursements of Federal grant funding. As written, the OMB Memo suggests the pause relates only to Federal programs “that may be impacted by the executive orders,”[1] included in the OMB Memo. Therefore, absent additional guidance to the contrary, we do not read the OMB Memo as expanding beyond this limitation to technically cover all Federal programs, such as semiconductor manufacturing, that may not be directly impacted or covered by the listed EOs.
We recognize though that different interpretations may result from reviewing OMB’s direction. For example, OMB also directs agencies to “complete a comprehensive analysis of all of their Federal financial assistance programs,” to “pause all activities associated with open NOFOs, such as conducting merit review panels,” and suggests the disbursement pause is to allow the Administration time to “review agency programs and determine the best uses of the funding for those programs consistent with the law and the President’s priorities.” Particularly where almost every Federal program will be impacted in some way by President Trump’s EO on “Ending Radical and Wasteful Government DEI Programs and Preferencing,” we can see where the OMB Memo could result in a pause to all Federal grant programs as agencies review their agreements to ensure they align with the Administration’s new policies.
We expect additional guidance and announcement from agencies imminently – and are aware that some grant recipients have already received written notice of “pause” from their Federal Awarding Agencies.
In the meantime, if you are a federal grant recipient or subrecipient, absent a challenge on constitutional bases, the Federal government likely will not be paying your invoices after today, and significant changes to the terms of your agreements (possibly even termination) may be on the horizon.
Update: On January 28, 2025, a group of nonprofit organizations filed suit against the OMB in the U.S. District Court for the District of Columbia requesting a temporary restraining order against the OMB Memo. The Complaint alleges the OMB Memo violates the Administrative Procedures Act in several regards, including that the Memo is arbitrary and capricious, contrary to the First Amendment, and in excess of Statutory authority. National Council of Nonprofits et al v. Office of Management and Budget et al, No. 1:25-cv-00239 (D.D.C.).
Additionally, a document titled “Instructions for Federal Financial Assistance Program Analysis in Support of M-25-13,” was released, providing Federal agencies with guidance on the review each listed Federal grant program must undergo pursuant to OMB’s directive.
FOOTNOTES
[1] Protecting the American People Against Invasion (Jan. 20, 2025), Reevaluating and Realigning United States Foreign Aid (Jan. 20, 2025), Putting America First in International Environmental Agreements (Jan. 20, 2025), Unleashing American Energy (Jan. 20, 2025), Ending Radical and Wasteful Government DEI Programs and Preferencing (Jan. 20, 2025), Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government (Jan. 20, 2025), and Enforcing the Hyde Amendment (Jan. 24, 2025).
Structural Integrity and Reserve Law – 1 Year Later
We are now a year into the effective date of what is colloquially known as the Structural Integrity Act (Act). The law combines two important obligations condominium associations or cooperatives must now adhere to, inspection of the structure of the building (does not apply to all types of community associations) by a licensed engineer versed in structural engineering (structural integrity portion of the law) and the need to maintain adequate reserves (will apply to almost all community associations). A portion of the Act that has not yet been adequately discussed are the potential perils associated with a section of the Act that deals with “Observable Damage”. This writing seeks to give the reader a better perspective of this portion of the Act.
Structural Integrity Inspection
The inspection requirement under the Act will only apply if the building has a primary structural frame and load-bearing exterior and/or interior walls of non-combustible (concrete, masonry, steel, or a hybrid) or heavy timber (wood structures at least 4 inches thick in diameter) or a podium deck (structural slab). Wood framed buildings are excluded unless they sit on top of a podium deck such as construction over commercial space.
If the structure is required to have inspections, the timeframes to complete the initial inspection are: (1) within 15 years from the issuance of the certificate of occupancy (CO) for the building; or (2) within 60 days after observable damage to the building’s primary load bearing system.
If the CO was issued more than 15 years prior to January 8, 2024, then an inspection is required on or before January 8, 2026. If the CO was issued less than 15 years from January 8, 2024, then the inspection must be performed within one year from the date when the building reaches 15 years old (measured from the date of issuance of its certificate of occupancy).
Subsequent inspections are then required no more than 5 years from the date of the previous inspection or not more than 60 days after observable damage.
“Observable Damage to Primary Load Bearing System”
The obvious intent behind the inspection requirements of the Act is to identify and address as early as possible any structural failure to an occupied building that may result in significant damage to persons or property like the tragic event at the Champlain Towers Condominium in Surfside, Florida in June 2021. A laudable goal. However, it is unclear how at least one part of the Act’s inspection provisions will work, to wit, the requirement that an inspection occur “60 days after observable damage to the primary load bearing system.”
Since this language would trigger an inspection by a structural expert, as written the implication is that either the unit owners, board members, or perhaps some employees of the Association such as a property manager would be the one to “observe” the damage. This is the first glaring flaw in the Act because it places the onus on a non-expert to understand and identify structural damage. The second flaw is that the Act does not define what amounts to “observable damage.” In other words, what exactly does observable structural damage look like to the naked eye. Lastly, the Act defines “primary load bearing system” as “the assemblage of structural components within a building comprised of columns, beams, or bracing that by contiguous interconnection form a path by which external and internal forces applied to the building are delivered to the foundation.” N.J. Stat. § 52:27D-132.3. These components are most often concealed within the building making the identification of “observable damage” to these elements unlikely. If they are visible, what then does “observable damage” to these components look like?
So, we are left with lay people being expected to identify damage in some undefined form to the mostly concealed primary load bearing system of the building. Since they most likely will not be able to directly observe the primary load bearing elements, then these lay people are expected to identify how damage to the primary load bearing system will appear in other parts of the building. A basic search on the internet for “signs of structural damage” will return multiple sites, mostly engineering firm websites, that give lists of the following kinds of signs to look for: cracks in walls, ceilings, or around windows and doors; uneven floors; sticking doors and windows; bowing or leaning walls; walls that curve or lean inward; and sagging floors and roofs (not intended to be a complete list). These “signs” are not from the load bearing system itself but would be how a failure in the system would appear to the building finishes, i.e., sheetrock, windows, doors, wood floors, etc. They can obviously be signs of a serious structural problem. However, they may also just be signs of poor craftmanship that fall far short of creating a structural problem. What if there is only one of these “signs” observable to the naked eye? For example, a crack in a sheetrock wall. Such cracks are very common. Should a single crack implicate what may end up being a very expensive inspection process for the Association? If the single crack is ignored, and a structural failure occurs that the crack was evidence of, is the Board liable for ignoring the crack?
These issues will undoubtedly be fleshed out in subsequent litigation where the Courts will have to define exactly what “observable damage” to the “primary load bearing system” is intended to mean and what standard will define the obligation to “observe” the damage. It is not clear what approach the Court’s will take to these questions. There may be some guidance in the case law discussing disclosure of defects in the context of real estate transactions. For example, the obligation to disclose latent defects, defined as “not known or reasonably discoverable,” (Dwyer v. Skyline Apartments, Inc., 123 N.J. Super. 48, 53 (App. Div. 1973), versus a patent defect defined as one that is “clear and obvious” (Szeles v. Vena, 321 N.J. Super. 601, 607 (App. Div. 1999). These definitions are obviously very basic and if applied will end up in a case-by-case analysis turning on the facts.
Capital Reserves
The Act now requires reserves studies be performed at least every 5 years if the community association’s common element assets are valued at $25,000 or more. The intent of the Act is to ensure adequate reserve funds are available, when needed, thus avoiding special assessments or loans to fund capital asset replacement. A reserve study is required immediately if no reserve study has been performed since January 8, 2024. That is, the community association had one year from January 8, 2024, to perform a reserve study.
If the study proves that reserves are underfunded, options are available to achieve compliance depending on the amount of the increase in the assessment to achieve compliance (different vehicles available if an increase is less/more than 10%). Each association should consult with its professional team to determine the best way to achieve compliance.
While the requirements of complying with the Act will be painful, the Structural Integrity Act is intended to address what can only be defined as a long drought in community association boards properly preserving not just the physical plant of the community association, but its financial well-being as well. The law now statutorily imposes that board members act upon their fiduciary obligation to preserve the health and welfare of their members.
Additional Author: Melissa Volet
Seattle Federal Judge Enjoins Enforcement of EO Banning Birthright Citizenship
On Jan. 23, 2025, in a suit filed in the U.S. District Court in Seattle by the attorneys-general of Washington State, Arizona, Illinois, and Oregon to overturn President Donald Trump’s executive order (EO) banning birthright citizenship, Judge John Coughenour enjoined enforcement of the EO, calling it “blatantly unconstitutional.” The judge issued a 14-day temporary restraining order.
Eighteen other states filed a similar lawsuit in Massachusetts federal court. That suit does not seek a preliminary injunction, however.
The EO directs federal agencies to refuse to recognize U.S. citizenship for children born in the United States to mothers in the country illegally, or who are present in the United States on non-immigrant visas, including work, student, and tourist visas, if the father is not a U.S. citizen or green card holder.
The EO seeks to overturn United States v. Wong Kim Ark, 169 U.S. 649 (1898), a U.S. Supreme Court case over a century old holding that children born in the United States to foreign parents are U.S. citizens under the 14th Amendment. Issuing an injunction, Judge Coughenour stated: “I have been on the bench for over four decades. I can’t remember another case whether the question presented was as clear.”
Federal Judge Halts Trump’s Birthright Citizenship Order
On Thursday, January 23, 2025, a federal judge in Seattle, Washington blocked enforcement of President Donald Trump’s recent executive order limiting birthright citizenship after four states (Washington, Illinois, Arizona, and Oregon) sought a temporary restraining order (TRO).
The judge described the executive order as “blatantly unconstitutional.” The executive order limiting birthright citizenship asserts that children born in the United States on or after February 19, 2025, who do not have at least one lawful permanent resident or U.S. citizen parent, will not have a claim to birthright citizenship.
Quick Hits
A federal judge in Washington recently granted four states a temporary restraining order halting enforcement of President Trump’s new executive order on birthright citizenship.
The case that resulted in the temporary freeze is one of five lawsuits filed by 22 states and several civil rights organizations.
The federal judge who issued the temporary restraining order has stated that he will consider whether to grant a long-term injunction over the next weeks.
In their complaint, the states that received the order assert, “nothing in the Constitution grants the President, federal agencies, or anyone else authority to impose conditions on the grant of citizenship to individuals born in the United States.” The states assert that the executive order is contrary to the Citizenship Clause of the Fourteenth Amendment of the U.S. Constitution and to the text and history of the almost century-old legal precedent, which states, “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
The federal judge seated in Washington has stated that there exists a strong likelihood that the states will succeed on the merits of their claims that the executive order violates the Fourteenth Amendment. In the four-page temporary restraining order, the federal judge cited to a violation of the Fourteenth Amendment in deciding to grant the order. Other states have likewise joined in with similar claims as those made by the original four states. As of January 21, 2025, twenty-two states and several civil rights organizations have filed five lawsuits challenging President Trump’s executive order on birthright citizenship, including one lawsuit filed mere hours after the president signed the order.
Next Steps
During the coming weeks, the judge will decide whether to grant a long-term injunction. If the injunction is challenged, the U.S. Court of Appeals for the Ninth Circuit would have jurisdiction over the case. The question of birthright citizenship could eventually reach the Supreme Court of the United States. The Supreme Court previously answered this questions in an 1898 case.
After Supreme Court Upholds Ban, Trump Issues EO Giving TikTok an Extension
Despite bipartisan support for banning TikTok – essentially spyware presenting a national security threat from the People’s Republic of China (PRC) – in the United States (as done by India) and the Supreme Court’s upholding of the law as constitutional and requiring the app to go dark, President Trump signed an Executive Order (EO) during his first day in office giving TikTok 75 days to “pursue a resolution.”
TikTok already had several months to “pursue a resolution,” which was to divest itself from the PRC so it could not collect and use Americans’ sensitive data. TikTok does not want to pursue this resolution because it wants to keep collecting, using, manipulating, and spying on U.S. citizens.
This is a disappointing development, and hopefully, Trump, who originally supported the ban, will come to his senses to protect national security and keep the PRC from spying on unwary citizens.
Steps Employers Should Take After President Trump Revoked Executive Order 11246
On January 21, 2025, President Donald Trump issued an Executive Order (“EO”) titled “Ending Illegal Discrimination And Restoring Merit-Based Opportunity” explicitly revoking Executive Order 11246, which mandated federal contractors comply with certain diversity, equity, and inclusion (“DEI”) related requirements, including the dissemination and enforcement of nondiscriminatory policies, establishing a written affirmative action plan and placement goals for women and minorities, and implementing action-oriented programs for accomplishing these goals.
Federal Contractors Have 90 Days to Comply
President Trump’s EO gives federal contractors until April 21, 2025, to end their compliance with EO 11246. However, effective immediately, the Office of Federal Contract Compliance Programs (“OFCCP”), the agency within the Department of Labor responsible for monitoring compliance with Executive Order 11246 is required to cease:
Promoting diversity;
Holding federal contractors responsible for taking affirmative action; and
Allowing or encouraging federal contractors to engage in workforce balancing based on race, color, sex, sexual preference, religion, or national origin.
Accordingly, all federal contractors will now be required to certify they “do not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws” in all contracts and grant awards with federal agencies.
Implications For Private Employers Who are Not Government Contractors
President Trump’s EO also had implications for private employers who are not government contractors, particularly public companies and educational institutions. Putting pressure on the private sector to follow suit and end DEI programs, the EO directs the heads of federal agencies to submit reports within the next 120 days addressing the following issues:
Private sector companies with the most “egregious and discriminatory” DEI programs;
Plans to deter DEI programs “that constitute illegal discrimination or preferences”;
Consideration of litigation that would be potentially appropriate for federal lawsuits, intervention, or statements of interest; and
Other strategies to encourage the private sector to end “illegal DEI discrimination and preferences” and comply with all Federal civil-rights laws.
Next Steps for Employers:
Federal contractor employers and private employers alike should consult their counsel to discuss the following next steps:
Federal Contractors: Assess and review policies and practices that have been set up to comply with adopted Affirmative Action programs and analyze any independent and/or overlapping state law obligations which may remain in effect and require compliance. Consider changes to ensure compliance with new federal EO standards (i.e., ensuring there are no workforce balancing policies or DEI programs that could be construed as violative of federal anti-discrimination laws such as Title VII of the Civil Rights Act) and obtain guidance on how to reconcile the federal obligations with state law requirements.
Private Employers: Conduct a privileged assessment of all current DEI statements, policies, programs, and initiatives to ensure compliance with federal civil rights laws to ensure that employment decisions are based on merit and that protections are in place to prevent employees or applicants from being adversely treated or impacted on the basis of race, sex, gender, or any other protected characteristics under federal or state law.
The EO is a sea change in national policy which will have a ripple effect throughout the private sector, including the risk of private lawsuits challenging existing policies or decisions made under them. These are early days, and we will continue to watch and report on developments, but any employer which ignores the significance of the EO does so at its peril.
Illinois Loses First Shot at Interchange Fees on State and Local Taxes
Illinois enacted a law that prohibits a credit card holder’s bank from charging or receiving interchange fees on the portions of transactions that include Illinois state or local taxes and gratuities, in effect starting July 1, 2025. IL Interchange Fee Prohibition Act (“IFPA”) 815 ILCS 151/150-1 et seq. The Illinois Bankers Association and others collectively sought relief in the federal courts to prevent the IFPA from taking effect and asserted that the IFPA is preempted by federal laws, is unconstitutional under the Supremacy Clause of the United States Constitution, and is discriminatory under the dormant Commerce Clause of the United States Constitution because it imposes a regulatory measure that “benefit[s] in-state economic interests by burdening out-of-state competitors.” Compl. ¶ 202 to 224. They won a preliminary injunction that temporarily blocks the law while the challenge proceeds. Illinois Bankers Association’s et al. v. Kwame Raoul, in his official capacity as Illinois Attorney General, No. 24 C 7307 (N. D. Ill. Dec. 20, 2024).
A preliminary injunction in any court requires, at a minimum, the court to believe that the party seeking the injunction has a reasonable likelihood of success on the merits of the actual case and will suffer irreparable harm if application of the law is not stayed while the case proceeds. This means at least two things. First, you have to be prepared for a mini-proceeding on the case before you get to the trial stage at which you would put on your full case. That is, if you cannot demonstrate that you are likely to ultimately win and you would be harmed by not halting the law early, why would the court want to stay the application of a law at an early stage of your case? Second, if you win a preliminary injunction, you are more likely to ultimately prevail.
The court found that:
the IFPA prohibits charging or receiving interchange fees on the portion of a credit card transaction that includes Illinois state or local taxes or gratuities;
the IFPA defines an interchange fee as “a fee established, charged, or received by a payment card network for the purpose of compensating the issuer for its involvement in an electronic payment transaction[;]”
under the federal National Bank Act powers, banks are authorized to engage in any activity that is “incidental to the business of banking [;]”
Office of the Comptroller of the Currency guidance makes clear that processing credit and debit card transactions is part of the business of banking;
the IFPA directly regulates credit and debit card transactions by dictating the amount that banks can charge for a transaction; and
by barring a credit card issuer from charging interchange fees on state and local taxes and gratuities, the IFPA alters a bank’s right to determine how best to structure their non-interest fee arrangements with merchants.
The banks demonstrated irreparable harm by proving that costs to make changes to their payment processing systems (the current systems do not distinguish whether the transaction is for state and local tax or gratuities) would not be recouped if the law was later struck down.
The takeaway here is that a preliminary injunction and a challenge in federal court are powerful tools that can add leverage if the case is right for using them. Often state tax challenges are prohibited in federal courts under the Tax Injunction Act, which provides that federal courts “shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.” 28 USC § 1341. However, if you can get there, make a federal case out of it!
DEI Changes from the Start: Key Executive Orders Signed on Trump’s First Day
On January 20, 2025, Donald J. Trump was sworn in as the 47th President of the United States. Fulfilling one of his major campaign promises, he issued a series of executive orders on his first day in office. Two of these orders represent a significant shift regarding gender and diversity, equity, and inclusion (DEI) initiatives.
One order declares that the federal government only recognizes two immutable sexes: male and female. This Order, entitled, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” rejects “gender identity” as a basis for policy decisions and emphasizes that sex is a fixed biological characteristic. It directs federal agencies to use clear, sex-based language in all official documents and communications, and seeks to ensure that facilities and programs meant for one sex are not accessed based on gender identity. Specifically, the Order requires government-issued identification documents, including passports, visas, and Global Entry cards, to reflect the holder’s sex assigned at birth. The Order also calls for revisions to policies concerning women’s spaces, healthcare, and legal protections, aiming to uphold sex-based rights.
Another order, entitled, “Ending Radical and Wasteful Government DEI Programs and Preferencing,” aims to end what President Trump deems “discriminatory” DEI initiatives implemented by the Biden administration. In this Order, federal agencies are mandated to terminate these initiatives, including terminating DEI-related positions, training, and programs, under whatever name they appear (including in relation to “environmental justice”). Federal agencies are directed to revise employment practices to focus solely on merit, performance, and skills, without considering DEI factors. The aim of this Order is to ensure equal treatment for all Americans, reducing federal spending on what the Order labels “wasteful” and “discriminatory” policies.
President Trump also issued an order that reverses several executive orders from the Biden administration. The Order highlights a commitment to undoing practices deemed to have harmed the nation, particularly focusing on issues of DEI, border control, and climate-related regulations. The Order asserts that these policies from the Biden administration created divisiveness, inflated costs, and strained public resources. Among the revoked prior orders are:
Executive Order 13985, Advancing Racial Equity and Support for Underserved Communities Through the Federal Government;
Executive Order 13988, Preventing and Combatting Discrimination on the Basis of Gender Identity or Sexual Orientation;
Executive Order 14091, Further Advancing Racial Equity and Support for Underserved Communities Through the Federal Government; and
Executive Order 14069, Advancing Economy, Efficiency, and Effectiveness in Federal Contracting by Promoting Pay Equity and Transparency.
Additionally, this Order creates a broad review process, wherein the Domestic Policy Council and National Economic Council have been tasked with reviewing federal actions from the Biden administration to determine which additional policies should be rescinded or amended to “increase American prosperity.”
Yesterday’s wave of executive orders marks just the beginning of what is expected to be a series of significant policy shifts under President Trump’s administration. As these changes unfold, they will likely have widespread impacts on everything from federal regulations to national security. With more orders likely on the horizon, it is crucial to stay informed and to prepare to accommodate the evolving policy landscape.
Will 2025 Continue Circuit Court Harmony in Nationwide Litigation Involving State Law Hemp Legislation, or Will a Circuit Split Emerge?
You’ve probably seen the reports of the United States Fourth Circuit Court of Appeals’ January 7, 2025 opinion upholding a Virginia law that regulates consumable hemp products. I planned to put up a blog post soon after the opinion was handed down, and I will still summarize the holding here. But the delay in writing allowed me to take a step back (and another step back), and view this in proper perspective: 2025 is going to be a huge year in the state law hemp legislation vs. hemp industry Farm Bill disputes that have been simmering over the last couple of years. Let me explain how this will soon boil over.
If you are still reading this, I suspect I don’t need to provide an overview of the 2018 Farm Bill and its impact on the hemp industry, notably on the consumable hemp product industry. If you want a refresher on that, you can read some of our older articles on the subject here and here. With that backdrop, more and more states have in recent years passed laws restricting the production and sale of consumable hemp products with each passing legislative session. And with each new piece of legislation comes a new legal challenge. Most of these cases start in a federal trial court, and over the last few years, we have seen those courts reach varying decisions although the majority uphold the restrictive state legislation. Appeals have followed, and this year, kicked off by the Fourth Circuit’s January 7 decision, should go a long way towards molding this little pocket of jurisprudence and potentially influencing how the Farm Bill is ultimately modified.
Fourth Circuit Upholds Consumable Hemp Restrictions
As the Fourth Circuit put it in its Northern Virginia Hemp & Agriculture, LLC v. Virginia opinion, Virginia “took action” to address its “marijuana problem” by passing a 2023 law that regulates the retail sale of hemp products based on their total THC level and limits the concentration of that level in products in a more restrictive manner than what was legal under federal law. — F.4th —-, 2025 WL 37238 (4th Cir. 2025). A lawsuit soon followed that sought injunctive relief under the usual constitutional arguments – the Supremacy Clause and Dormant Commerce Clause. The district court rejected the plaintiffs’ arguments, and the Fourth Circuit appeal followed.
Conceptually following the Seventh Circuit’s 2020 C.Y. Wholesale, Inc. v. Holcomb, 965 F.3d 541 (7th Cir. 2020) opinion, the Fourth Circuit affirmed the district court’s dismissal of the suit, detailing why each constitutional challenge failed. As for the Supremacy Clause, the court addressed each applicable preemption doctrine in turn (express, field, and conflict). Rejecting plaintiffs’ express preemption argument, the court concluded that “the plaintiffs’ argument overread” the Farm Bill’s notes stating that a state can’t prohibit the transportation or shipment of hemp or hemp products. Focusing on the Farm Bill’s plain language authorizing states to regulate the production of hemp more stringently than federal law, the court held that the plaintiff’s express preemption argument “crumbles.” And, based on that Farm Bill provision and further due to that law expressly designating states as the “primary regulatory authority over the production of hemp,” the court rejected plaintiffs’ field preemption argument. As for conflict preemption, the court disregarded plaintiffs’ argument that the total THC standard set forth in the Virginia bill conflicted with the Farm Bill’s definition of what constitutes legal hemp, concluding that “[w]hen the actual language of the statutes is considered, S.B. 903 is [neither] in direct conflict with the purpose of the Farm Bill [nor] does it pose an obstacle to its purpose.”
Plaintiffs’ dormant commerce clause faced the same fate. Holding that the Virginia law did not favor in-state entities to the detriment of out-of-state ones, the court noted that the total THC standard applied equally to resident and nonresident entities. The court also found that allegations of cost increases were both speculative and equally applicable to all entities, no matter where domiciled. This decision follows the Seventh Circuit (the only other circuit court addressing these precise challenges) in upholding state laws that regulate hemp products more restrictively than the Farm Bill.
Eighth Circuit Ruling Looms
We have discussed the Bio Gen LLC et al. v. Sanders case before here and here, which now awaits a ruling from the Eighth Circuit. The court heard arguments on September 24, 2024, and the Arkansas attorney general sent the court a letter on January 8 informing it of the Fourth Circuit’s decision. That letter follows a December 3, 2024 letter the AG sent informing the Eighth Circuit of an October 10, 2024 New Jersey federal court decision (Loki Brands, LLCv. Platkin, No. 24-9389, 2024 WL 4457485 (D.N.J. Oct. 10, 2024)) upholding a New Jersey law regulating hemp products in the state, in which the AG noted:
With that decision, one court of appeals [now two after the 2025 Fourth Circuit opinion] and a total of eight district courts spanning five other circuits – in Alaska, California, Hawaii, Iowa, South Dakota, Virginia, Wyoming, and now New Jersey – have rejection [sic] implied preemption challenges to laws like the one at issue here, with the district court below the sole outlier.
Will the Eighth Circuit affirm the lower court’s outlier ruling that sided with the hemp industry plaintiffs and enjoined the Arkansas law, or will the court follow the Fourth and Seventh circuits and reverse? We should have an answer very soon.
10th Circuit Ruling Expected in 2025
After a Wyoming court rejected constitutional challenges to a Wyoming law that prohibited hemp from containing “synthetic substances,” added certain psychoactive isomers to the definition of THC, and added delta-8 to the list of controlled substances, the plaintiff hemp businesses filed suit. Similar to the Fourth Circuit’s ruling discussed above, the U.S. district court in Wyoming concluded that the Farm Bill did not preempt the Wyoming law and that the law did not violate the Dormant Commerce Clause. The court also rejected a regulatory takings argument. The hemp companies appealed that ruling to the 10th Circuit where briefing concluded on January 2, 2025. Like the Arkansas attorney general, Wyoming’s AG informed the 10th Circuit of the Fourth Circuit’s recent opinion. The 10th Circuit case is Green Room, LLC v. Wyoming, Nos. 24-8053 & 24-8054.
Will the Fifth Circuit See a Similar Appeal in 2025?
During the 2024 legislative session, the Louisiana Legislature amended its hemp laws to restrict where certain hemp-derived products can be sold and their potency. The hemp industry quickly responded with litigation. That matter, Hemp Assoc. of La. v. Landry, No. 3:24-cv-00871, in the U.S. District Court for the Middle District of Louisiana, was filed on October 18, 2024. The plaintiffs alleged that the 2018 Farm Bill preempts the legislation and is unconstitutional on other grounds. The state disagreed and moved to dismiss, but on November 19, 2024, the state informed the court that it would stay the effective date of the new legislation so that the parties could fully brief the pending motions and the court could reach a decision. Under a January 8, 2025, order, briefing on defendants’ motion to dismiss the plaintiffs’ challenge to the Louisiana law will conclude on February 10, 2025, and a hearing on the motion is set for March 27, 2025.
What Does this All Mean?
With Congress again extending the reauthorization process for the Farm Bill, the judiciary branch is helping shape the future of the consumable hemp product industry. And, while we may not see any U.S. Circuit Courts of Appeals beyond those discussed above decide these issues in 2025, federal courts in other jurisdictions, including New Jersey, Iowa, and South Dakota, issued notable rulings on these same issues last year. Also, with new legislative sessions just ramping up in states across the country, we expect new state laws that, if history repeats itself at all, will lead to new court challenges that raise the same constitutional challenges that have been and are currently being adjudicated.
Federal Lawsuit Challenges California’s Mandatory Captive Audience Ban
As discussed in our recent article, the introduction of SB 399 in California (approved and added as California Labor Code section 1137) sparked significant discussion and concern among California employers with union employees. The legislation, which became effective January 1, 2025, restricts so-called “captive audience meetings” by prohibiting employers from discharging or disciplining employees for refusing to attend mandatory employer-sponsored meetings. Many employers believe the law unnecessarily restrains their ability to communicate effectively and transparently with employees about important issues.
In response to SB 399, the California Chamber of Commerce and the California Restaurant Association filed a federal lawsuit in the United States District Court for the Eastern District of California on December 31, 2024 (the “Lawsuit”). The Lawsuit challenges the constitutionality of SB 399, arguing it infringes on employers’ free speech rights and is otherwise preempted by the National Labor Relations Act (“NLRA”).
The California Worker Freedom from Employer Intimidation Act
SB 399, or the California Worker Freedom from Employer Intimidation Act (the “Act”), prohibits employers from taking adverse actions against employees who choose not to attend meetings where opinions on religious or political matters, including unionization, are expressed. Previously, employers were permitted to require employee attendance at such meetings. The Act is currently enforced by the Division of Labor Standards Enforcement and is ostensibly designed to protect employees from presumably coercive tactics that could influence their decisions regarding union policies.
The Act follows a larger trend among several states that have enacted similar captive audience bans.
The Constitutional Challenge
The Lawsuit in the Eastern District of California challenges the Act on essentially two grounds. First, the Lawsuit argues the Act violates the First and Fourteenth Amendments of the United States Constitution. Second the Lawsuit argues the Act is preempted by the NLRA.
The Lawsuit’s constitutional challenge contends the Act unfairly targets employers’ viewpoints on political matters by regulating the content of their communications and suppressing their ability to speak freely; thereby violating the First and Fourteenth Amendments. Specifically, by restricting speech on “matters relating to elections for political office, political parties, legislation, regulation, and the decision to join or support any political party or political or labor organization,” the Act is overbroad and unconstitutional content-based discrimination aimed at chilling employers’ speech. The Lawsuit also claims the Act will potentially leave workers without a full understanding of the implications of unionization.
Additionally, the Lawsuit argues the Act is preempted by the NLRA. More particularly, the Lawsuit claims the NLRA already provides a comprehensive framework for labor relations. The NLRA’s Section 8(c) protects employers’ rights to express views on unionization, provided there are no threats or promises of benefits. The Lawsuit argues the Act conflicts with these protections and intrudes into areas that are already federally regulated.
The Lawsuit asks the Federal Court of the Eastern District of California for a temporary and permanent injunction blocking enforcement of the Act.
Key Takeaways for California Employers
The outcome of the Lawsuit is uncertain. So for now, California employers should reassess meeting policies and practices. Specifically, employers should make meetings on religious, unionization, or political matters voluntary. Businesses should also ensure front-line supervisors and managers are trained to properly conduct meetings concerning unionization and other political topics. Employers should consider—preferably in writing—informing employees about the purpose of any meetings related to unionization and clearly emphasize that attendance is voluntary. Finally, employers should find ways for employees to acknowledge the voluntary nature of these meetings without violating NLRA provisions; taking care to avoid actions that might be perceived as surveillance or coercion.
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Mexico 2025: Foreign Trade Outlook | What to Expect in Terms of Foreign Trade?
Mexico 2025: Foreign Trade Outlook | What to Expect in Terms of Foreign Trade?
Panorama Mexicano 2025, ¿Qué podemos esperar en materia de comercio exterior?
Collection forecast and tax collection plan In view of the “success” in terms of foreign trade taxes collection during 2024, the Federal Government approved for the 2025 fiscal package an increase in absolute terms of more than 40% with respect to the goal set for the previous fiscal year, amounting to MX$151,789.7 million for fiscal year 2025 (approximately US$7,404.4 million considering an exchange rate of MX$20.50 per US dollar). The above, without considering other contributions that could also be collected by the tax and customs authorities as a result of their verification powers. In connection with this collection goal, it is important to point out that the Federal Government also released its Master Plan for fiscal year 2025, which summarizes the points that will make up the central axes for collection by the Federal Tax Authorities. As expected, some foreign trade issues are once again on the collection agenda of the tax and customs authorities, including the following: – Verifying the return of temporarily imported goods;– Combat apparent abuses in foreign trade authorizations, particularly VAT and Excise Tax Certification, and as a result, initiate cancellation procedures;– Verify the correct customs valuation that could lead to omissions in the payment of taxes; and– Correct interpretation and application of free trade agreements Constitutional reform related to Ex-officio preventive detention Despite criticism from various human rights organizations and even from the Office of the United Nations High Commissioner for Human Rights in Mexico, on January 1, 2025, the constitutional reform that provides for Ex-officio preventive detention went into effect. Through this reform, the Mexican State is legitimized so that judges may order Ex-officio preventive detentions. Of particular relevance is the addition of contraband to the list of crimes that may give rise to this type of precautionary measure. It is important to point out that the crime of contraband includes diverse activities that go beyond the simple illegal introduction of goods into the country and that may be committed as a result of omissions of compliance in the foreign trade operations of companies. This reform further obliges companies to implement appropriate controls to mitigate, in addition to administrative infractions, a possible criminal process that could follow against the representatives and boards of directors of companies leading to deprivation of their liberty. Online inventory control system for temporary imports At the end of 2024, the Tax Administration Service published a series of measures applicable to companies that have an IMMEX Program and also have a VAT and Excise Tax Certification. Particularly, the obligation of the companies in question was established to allow the Tax Authorities the remote and practically simultaneous consultation of their temporary importation operations registered in their inventory control systems, commonly known as Annex 24. On this issue, some modifications to this obligation were recently published, aimed at providing clarity. Although the modifications may have dispelled some doubts for companies, many foreign trade players are still concerned with the correct handling of the sensitive data and information involved in complying with this obligation. In this sense, it is likely that, during this year, the measure in question will evolve in terms of its surveillance and, therefore, the Tax Administration Service will initiate more inspection procedures, as well as more inspections to review the level of compliance in terms of VAT and Excise Tax Certification. It is important to remember that failure to comply with an inspection visit in a timely manner may result in the initiation of the cancellation of the VAT and Excise Tax Certification, which not only represents a future impact(benefit of importing without paying value added tax), but could also trigger the obligation to pay value added tax on the credit that has been applied by the companies. Mexico Plan: IMMEX 4.0 As a result of recent official statements, the Federal Government is expected to implement a series of investment and infrastructure measures. As part of these measures, the Federal Government is planning a series of industrial policy and development measures for the different areas of the country. A series of modifications to authorizations within IMMEX Programs were announced, apparently with a view to simplifying and reducing the time required to obtain them by 50%. It will be important to monitor whether this could trigger new obligations or modifications that affect companies in any way. Trade War Mexico has been the subject of multiple accusations and criticisms by its North American trading partners, among others, that Mexico: (1) has been lax in counteracting the exponential growth of China, even allowing product triangulation; (2) has failed to contain the advance of illegal migration; and (3) is not effectively combating its drug trafficking problems. This has given rise to positions on the establishment of tariffs on the importation of goods from Mexico. In the face of such pressures, Mexico has raised its tariffs considerably, with the textile sector (155 tariff items) being one of the sectors most affected by these recent measures, even to the extent prohibiting temporary importation by IMMEX companies (for which an exception mechanism has already been implemented so that they can continue importing these types of goods on a temporary basis under the IMMEX Program). Likewise, the Federal Government has increased security measures to counteract drug trafficking, as well as the illegal entry of people into the country. It will be important to closely monitor the measures established by the new administration in the United States regarding foreign trade, as there is a possibility that Mexico will increase tariff and even non-tariff regulations, in order to align its trade policy with the agenda of the countries that make up the North American region. GMO Corn At the end of 2024, an arbitration panel constituted under the USMCA resolved the dispute brought by the U.S. Government against the Mexican Government in connection with the publication of the Decrees aimed at prohibiting the use and consumption of genetically modified corn. Although the Mexican Government defended its position under the banner of cultural protection position, the Arbitral Panel ruled that the measures implemented by Mexico were inconsistent with the USMCA. Consequently, the Panel issued a recommendation to the Mexican Government to eliminate the prohibition in question. As of this date, the Mexican Government has not eliminated the Decrees in question. It should be noted that Mexico and the United States have a period of 45 days, which is currently elapsing, to agree on a solution. Otherwise, the U.S. Government would have the authority under the USMCA to suspend the application of benefits (retaliation). Judicial Reform In 2024, the Mexican Government approved a package of constitutional reforms aimed at structurally modifying the organic composition of the Judiciary branch. Undoubtedly, this reform is the most significant change in decades, mainly highlighting the mechanism for the election of judges and magistrates. According to the reform in question, on June 1, 2025, elections will be held to elect the above public officials, who must be assigned to the corresponding judicial bodies no later than September 15, 2025. In this sense, the second half of 2025 will mark the beginning of a new era in the administration of justice in Mexico, whose main question is whether this new model of popular election will in any way affect impartiality in the administration of justice. USMCA Renegotiation Under the USMCA, the governments of the United States, Canada, and Mexico agreed that the Treaty would remain in effect for 16 years after its entry into force. However, prior to that date, it was agreed that on the sixth anniversary of its entry into force (June 1, 2026), the parties would carry out a joint review of (i) the operation of the Treaty; (ii) the recommendations for action submitted by the parties; and (iii) decide on any other measures deemed appropriate. The purpose of this is to define whether it is the desire of the Parties to extend the validity of the Treaty for an additional16 years. During this year, it is very likely that the contracting parties will lay the groundwork for the negotiations that will officially take place during the second half of 2026. Conclusion of the Mexico-European Community Treaty negotiations On January 16, 2025, the European Community issued a press release informing that negotiations between the Ministry of Economy of Mexico and the Commissioner for Trade and Economic Security of the European Community were concluded. The official release of the texts of this Treaty are still pending, as well as the conclusion of the approval and ratification processes by the contracting parties. In any case, it will be important for companies that maintain or intend to trade products between the European Community and Mexico, keep the corresponding texts in perspective. Among other issues that will arise as a result of the above, we can highlight that companies will have to reevaluate whether the products exchanged still qualify as originating products under the Treaty in question. Likewise, the modernization of the Treaty represents a new opportunity to verify whether products that previously did not qualify as originating products may now be eligible for tariff preferences.
Pronóstico de recaudación y plan de fiscalización En vista del “éxito” en materia de recaudación en materia de impuestos al comercio exterior durante 2024, el Gobierno Federal aprobó para el paquete fiscal de 2025 un incremento en términos absolutos de más del 40% con respecto a la meta fijada para el ejercicio anterior, quedando en 151,789.7 millones de pesos para el ejercicio 2025 (aproximadamente 7,404.4 millones de dólares considerando un tipo de cambio de 20.50 pesos por dólar de los Estados Unidos de América).[1] Lo anterior, sin considerar otras contribuciones que igualmente pudieran recaudarse por parte de las autoridades fiscales y aduaneras como resultado del ejercicio de sus facultades de comprobación. En relación con dicha meta recaudatoria, es importante señalar que el Gobierno Federal también dio a conocer su Plan Maestro para el ejercicio fiscal 2025 que resume los puntos que constituirán los ejes centrales en la recaudación por parte de las Autoridades Fiscales Federales. Como era de esperarse, algunos temas de comercio exterior nuevamente se mantienen en la agenda recaudatoria de las autoridades fiscales y aduaneras destacando las siguientes: – Verificar el retorno de mercancías de importación temporal– Combatir aparentes abusos en las autorizaciones de comercio exterior, particularmente de la Certificación en materia de IVA e IEPS y como consecuencia de ello, iniciar procedimientos de cancelación.– Verificar la correcta valoración aduanera que pudieran dar lugar a omisiones en el pago de impuestos,– Correcta interpretación y aplicación de tratados de libre comercio Reforma Constitucional en materia de prisión preventiva oficiosa Pese a las críticas de diversas organizaciones en materia de derechos humanos e inclusive de la propia Oficina en México del Alto Comisionado de las Naciones Unidas para los Derechos Humanos, el 1 de enero de 2025 entró en vigor la reforma constitucional que prevé la prisión preventiva oficiosa. Así, a través de la Reforma en cuestión se legitima al Estado Mexicano para que los jueces puedan ordenar la prisión preventiva de manera oficiosa. Cobra especial relevancia, la incorporación del delito de contrabando dentro del catálogo de delitos que puede dar lugar a este tipo de medida cautelar. Resulta importante precisar que el delito de contrabando comprende actividades diversas que van más allá de la simple introducción ilegal de mercancías al país y que puede actualizarse con motivo de omisiones de cumplimiento en las operaciones de comercio exterior de las empresas. Así las cosas, la presente reforma obliga aún más a las empresas a que implementen controles apropiados para mitigar, además de infracciones administrativas, un eventual proceso penal que pudiera seguirse para los representantes y consejos de administración de las empresas con privación de su libertad. Sistema de control de inventarios de importaciones temporales en línea A finales de 2024, el Servicio de Administración Tributaria publicó una serie de medidas aplicables a las empresas que cuentan con un Programa IMMEX y que además contaran con la Certificación en materia de IVA e IEPS. Particularmente, se estableció la obligación de las empresas en cuestión de permitirle a las Autoridades Fiscales la consulta remota y prácticamente de manera simultánea, de sus operaciones de importación temporal registradas en sus sistemas de control de inventarios comúnmente conocido como Anexo 24. Sobre el presente tema, en fechas recientes se publicaron algunas modificaciones a dicha obligación, tendientes a dar claridad. Si bien con las modificaciones podrían haberse disipado algunas dudas por parte de las empresas, aún sigue la inquietud de muchos actores del comercio exterior en cuanto al correcto manejo de los datos e información sensible que representa el cumplimiento de esta obligación. En ese sentido, es probable que, durante el presente año, la medida en comento madure en cuanto a su vigilancia y, por ende, el Servicio de Administración Tributaria, detone el ejercicio de mayores procedimientos de fiscalización, así como visitas de inspección para revisar su nivel de cumplimiento en materia de la certificación en materia de IVA e IEPS. Es importante recordar que, el no atender oportunamente una visita de inspección, puede dar lugar al inicio de la cancelación de la Certificación en materia de IVA e IEPS, lo cual no solo representa una afectación hacia futuro (beneficio de importar sin el pago del impuesto al valor agregado), sino también pudiera detonar la obligación de pago del impuesto al valor agregado, respecto del crédito que se haya aplicado por las empresas. Plan México: IMMEX 4.0 Derivado de los recientes comunicados oficiales, se proyecta que el Gobierno Federal implemente una serie de medidas en materia de inversión e infraestructura. Como parte de dichas medidas, el Gobierno Federal proyecta una serie de medidas de política industrial y desarrollo de las distintas zonas del país. Particularmente, se anunciaron una serie de modificaciones en materia de autorizaciones a los Programas IMMEX, aparentemente con miras a simplificar y reducir los tiempos en su obtención en un 50%. Será importante vigilar si esto pudiera detonar nuevas obligaciones o modificaciones que afecten de alguna manera a las empresas. Guerra comercial México ha sido objeto de múltiples señalamientos y críticas por parte sus socios comerciales de Norteamérica, entre otras, con respecto a que México: (1) ha sido laxo para contrarrestar el crecimiento exponencial de China, permitiendo inclusive la triangulación de producto, (2) ha fallado en contener el avance en la migración ilegal; (3) no está combatiendo eficazmente sus problemas de narcotráfico. Lo anterior ha dado lugar a posicionamientos sobre el establecimiento de aranceles a la importación de mercancías provenientes de México. Ante dichas presiones, México ha elevado considerablemente sus aranceles, siendo el sector textil (155 fracciones arancelarias) uno de los sectores que más afectados se han visto con estas recientes medidas, inclusive al grado de prohibirse su importación temporal por las empresas IMMEX (respecto de las cuales ya se implementó un mecanismo de excepción de tal forma que puedan seguir importando este tipo de mercancías de manera temporal al amparo del Programa IMMEX). De igual manera, el Gobierno Federal ha incrementado las medidas de seguridad tendientes a contrarrestar el tráfico de drogas, así como, la entrada ilegal de personas al país. Será importante vigilar muy de cerca las medidas que establezca la nueva administración en los Estados Unidos de América en materia de comercio exterior, pues existe la posibilidad de que México, incremente las regulaciones arancelarias e inclusive, las no arancelarias, a fin de alinear la política comercial con la agenda de los países que integran la región de Norteamérica. Maíz OGM A finales de 2024, un panel constituido con arreglo al TMEC resolvió la disputa promovida por el Gobierno estadounidense en contra del Gobierno Mexicano con motivo de la publicación de los Decretos tendientes a prohibir el uso y consumo de maíz genéticamente modificado. Si bien el Gobierno Mexicano defendía su postura bajo un estandarte de protección cultural; el Panel arbitral resolvió que las medidas implementadas por México resultaban ser incompatibles con el TMEC. Por consiguiente, el Panel emitió la recomendación al Gobierno Mexicano para que eliminara la prohibición en cuestión. A la fecha del presente, el Gobierno Mexicano no ha eliminado los Decretos en cuestión. Conviene señalar que México y los Estados Unidos cuentan con un plazo de 45 días que actualmente se encuentra transcurriendo para acordar una solución. De lo contrario, el Gobierno de los Estados Unidos estaría facultado conforme al TMEC para suspender la aplicación de beneficios (retaliación). Reforma Judicial En el año 2024, el Gobierno Mexicano aprobó un paquete de reformas constitucionales tendientes a modificar de manera estructural la composición orgánica del Poder Judicial. Sin duda, esta reforma resulta ser el cambio más significativo en décadas, destacando principalmente el mecanismo de elección de los juzgadores y magistrados. Conforme a la reforma en cuestión, el próximo 1 de junio de 2025, se llevará a cabo la jornada electoral en donde se elijan a los citados funcionarios públicos, quienes deberán quedar adscritos a los órganos judiciales correspondientes a más tardar el 15 de septiembre de 2025. En ese sentido, el segundo semestre de 2025 iniciará una nueva era en la impartición de justicia en el país cuya principal interrogante radica en si a través de este nuevo modelo de elección popular, se afecta de alguna forma la imparcialidad en la procuración de justicia. Renegociación TMEC Conforme al TMEC, los Gobiernos de Estados Unidos, Canadá y México acordaron que la vigencia del Tratado sería de 16 años a partir de su entrada en vigor. Sin embargo, previo a dicha fecha, se acordó que al sexto aniversario de la entrada en vigor (1 de junio de 2026), las partes llevarían a cabo una revisión conjunta en torno a (i) el funcionamiento del Tratado, (ii) las recomendaciones en torno a las medidas presentadas por las partes y (iii) decidir sobre cualquier otra medida que se estime apropiada. Ello con la finalidad de definir si será el deseo de las Partes el prorrogar la vigencia del Tratado por otros 16 años adicionales. En ese sentido, dentro del presente año muy seguramente veremos que las partes contratantes “preparen el terreno” para las negociaciones que se llevarán a cabo oficialmente durante el segundo semestre del año 2026. Conclusión en las negociaciones del Tratado México – Comunidad Europea El pasado 16 de enero de 2025, se dio a conocer un comunicado de prensa por parte de la Comunidad Europea en el que informan que se concluyeron las negociaciones entre la Secretaría de Economía y el Comisario de Comercio y Seguridad Económica de la Comunidad Europea. Aún está pendiente de que los textos de dicho Tratado sean oficialmente liberados, así como que las partes contratantes concluyan sus procesos para su aprobación y ratificación. De cualquier forma, será importante que las empresas que mantengan o tengan intenciones de intercambiar productos entre las regiones Comunidad Europea – México, tengan en perspectiva los textos correspondientes. Entre otros temas que surgirán con motivo de lo anterior, podemos destacar que las empresas deberán reevaluar si los productos intercambiados, siguen calificando como originarios al amparo del Tratado en cuestión. De igual manera, la modernización del Tratado representa una nueva oportunidad para verificar si productos que anteriormente no calificaban como originarios, puedan ahora sí ser elegibles para acceder a preferencias arancelarias.
[1] Aunque es importante considerar que algunas calificadoras pronostican que el peso podría alcanzar los 21 pesos por dólar de los Estados Unidos de América.