Manufacturer (Dodd-Frank Context)

Under SEC Rule 13p-1 implementing Dodd-Frank Section 1502, a ‘manufacturer’ is a company that (1) manufactures a product or (2) contracts to manufacture a product. A company is considered to ‘contract to manufacture’ if it has some actual influence over the manufacturing of the product. The SEC has stated that a company that merely affixes its label to a generic product or negotiates basic product specifications (such as color or size) may not be considered to contract to manufacture for conflict minerals purposes.

SEC Rule 13p-1; SEC Exchange Act Release No. 34-67716 (August 22, 2012), pages 74–86; SEC Guidance on Conflict Minerals (CF Disclosure Guidance: Topic 5).

Determining whether your company qualifies as a ‘manufacturer’ for conflict minerals purposes requires assessing the degree of influence you exercise over the manufacturing process. Companies that specify materials, components, or manufacturing processes are more likely to be considered manufacturers. Retailers who simply purchase and resell products without specifying anything about the manufacturing process are generally not considered manufacturers. This determination directly affects whether a Form SD filing is required.

A retailer sells a private-label electronic device under its brand. It specifies the device’s color, packaging, and firmware features but does not specify any component materials or manufacturing processes. Based on SEC guidance, this retailer may not be considered a ‘manufacturer’ for conflict minerals purposes and may not need to file Form SD.