As discussed in a previous
post, the SEC's final Conflict Minerals rule, adopted in
August 2012 to implement Section 1502 of the Dodd-Frank Act, has a
number of undefined terms and ambiguous provisions that require
difficult interpretations of the rule's applicability.
One example is whether the critical term "product"
includes packaging. For example, if a company sells canned
soup, is the product the soup, the can, or both? If the can
contains tin, one of the four "conflict minerals," the
answer to this question could determine whether the company must
fulfill SEC reporting obligations or not.
The SEC is aware that many companies are struggling with this
(and other) questions, and has said it is planning to issue
guidance, but more than six months after the rule's
publication, no official interpretation has appeared.
However, in its initial response brief in the legal challenge of
the rule, now pending in the D.C. Circuit, the SEC included a
footnote that
