Anti-Bribery Compliance: Foreign Testing of Products

Whether with respect to the FCPA, the UK Bribery Act, Canada’s Corruption of Foreign Public Officials Act, Brazil’s Clean Companies Act, or other anti-bribery regimes, anti-bribery compliance is so often focused on various aspects of sales, entering new markets, or acquiring access to raw materials.  Such a focus is both normal and logical.  But one’s horizon as to areas of possible concern should never be narrowly focused.  Constant vigilance is required to be sensitive to situations whether the prospect of questionable conduct is likely to be heightened.

The testing of products is one area that is generally overlooked with respect to anti-bribery compliance.  For a host of reasons, many products are tested in foreign settings.  They may relate to meeting local specifications to enter foreign markets or to qualify for procurement opportunities.  They may also relate to performing tests that may not be available or subject to greater restrictions in domestic situations.  The possibilities are endless.

In many situations where testing may be required or available in foreign settings, the testing may be undertaken by government agencies or entities owned or controlled by the government.  Permission may also be required in one form or another from governmental officials to test products or to submit products for approval or inspection.  The pharmaceutical industry immediately comes to mind.  A multitude of other industries are similarly affected.

In general, these efforts all entail interacting with foreign officials with the purpose of seeking some form of benefit.  Depending upon the country and institution, the dynamics of testing of products in foreign settings enhance the likelihood of improper inducements.  Aside from the prospect of improper inducements, the validity of the tests in terms of reliability may also be put at risk.  In other words, the results may be fraudulent in nature.

While checklists perform a vital function in serving as a reminder as to what needs to be considered in terms of an anti-bribery compliance program, they can never suffice.  An entity and compliance officials must remain open to the countless possibilities that may exist.  A critical factor in becoming aware of overlooked areas of possible concern is developing a full understanding of the intricacies of an entity and how it operates in various settings.  Compliance officials can never know too much about the entities they oversee.

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