A group of strawberry growers filed petitions alleging that low-priced imports from Mexico have injured the winter strawberry industry in Florida. Imports covered under this petition include all fresh and chilled strawberries that enter the U.S. and are sold between Nov. 1 and March 31.
The Strawberry Growers for Fair Trade filed the petitions with the U.S. Department of Commerce and the U.S. International Trade Commission, stating the Mexican strawberry industry has distorted the U.S. market and injured the American industry and its workers.
Daniel Pickard, International Trade and National Security practice group leader at Buchanan Ingersoll & Rooney and lead counsel for the growers that filed the petition, says this action has come after nearly 20-plus years of growers seeking relief. This includes engaging with the U.S. Trade Representatives and the U.S. International Trade Commission.
Pickard says that while the U.S. International Trade Commission began monitoring imports under section 332, growers still did not see relief.
“It’s the fact that this industry has been suffering for more than two decades, and really the U.S. antidumping law is one of the only laws out there that industries can use when they feel like they’re being injured as a result of unfair import competition,” he says. “I bring antidumping cases for a living. There’s a point where people say, ‘Enough is enough. We don’t really have any other options right now.’”
And Pickard says many industries have sought relief through antidumping petitions.
“We are at a period where kind of historical high levels of antidumping investigation are being filed, not just in ag, it’s across multiple industries,” he says. “This is, I think, front and center in the news just about every day. The idea, not just under this administration, but for the past two administrations, and a focus on revitalizing U.S. production and the USA.”
Criteria for Proving Injury
Pickard says the timeline for the proceedings will likely be a decision within 20 to 45 days of the first filing to either dismiss or formally initiate the case. First, the ITC will determine if the case shows injury.
“The U.S. International Trade Commission will make a determination whether there is, ‘a reasonable indication of material injury or threat of material injury by reason of the Mexican imports,’” he says. “The ITC typically goes affirmative at that preliminary determination as well. The domestic industry only needs to show a reasonable indication of harm.”
Pickard says he’s currently answering some questions about domestic injury from the Department of Commerce.
“The ITC really looks at three primary sets,” he says. “No. 1, what is the volume of imports specifically? Have they increased absolutely or by market share? The second thing that they look at is whether imports have had negative price effects. And you see this historically in two major ways, either are the Mexican prices below the U.S. price, which is called underselling, or have imports generally put downward pressure on prices so that they’re suppressing or depressing U.S. prices. And then the third thing ITC looks at is whether there’s been a negative impact as it affected the growers, production, their commercial shipment, their profitability, their ability to invest.”
Then, the Department of Commerce will launch an investigation into the claims.
“They’ll make their preliminary determination whether there is dumping and the extent of dumping, generally at about five to six months after the filing of the case,” Pickard says. “So that’s going to get us to basically summertime, and as of that date, that’s when antidumping duties start to be collected.”
Then, he says, the ITC will conduct its formal hearing on the impact to the domestic industry.
“From a lawyer’s perspective, these things move at a rocket pace,” Pickard says. “We’re not talking about litigation that’s going to drag on for years and years. We’ll have a final determination within 13 months.”
Cautious Optimism for Industry Survival
Pickard says one thing that’s unique about this antidumping case is that it’s using a regional analysis, which, in this case, is Florida.
“The ICC has traditionally looked at whether a nationwide industry has been injured, but Congress passed a law decades ago that allows the ICC to also do what’s called a regional analysis and say, when examining the injury, is there a region that is particularly injured?” he says. “We’re arguing that really there are kind of two regions in the United States. You’ve got California growers and what’s going on in the Western United States, and then you’ve got strawberry production, which is concentrated in Florida and primarily sold in the Eastern states. And Florida growers’ season directly matches the majority of the Mexican strawberry growing season. And here it’s important for the ITC to conduct our regional analysis to specifically look at the impact of these imports on the Florida growers.”
Pickard says the growers he represents are cautiously optimistic but also understand just how long it’s taken to get to this point.
“I think people are very hopeful, but they’re also kind of cautiously optimistic that the industry has tried to get relief in a couple of different forms over the years, and it just hasn’t worked,” he says. “So now there’s this new option and these trade cases, if they’re successful. It’s not an overstatement to say that they can literally save domestic industries, but I think people are also cautious in their optimism in light of just how long this problem has been going on without any real relief.”
