Giorgio Foods, Inc. v. United States, No. 13-1304 (Fed. Cir. 2015)Annotate this Case
In 1998, the Coalition filed a petition alleging that domestic producers of preserved mushrooms were injured by imports of preserved mushrooms from Chile, China, Indonesia, and India being sold in the U.S. at less than fair value. Giorgio accounted for approximately one half of total U.S. production, but was neither a Coalition member nor a petitioner. The International Trade Commission issued questionnaires to domestic producers, including Giorgio. Giorgio responded: “We take no position on Chile, China and Indonesia[.] We oppose the petition against India.” The Department of Commerce initiated an antidumping investigation, “on behalf of the domestic industry,” 19 U.S.C. 1673a(c)(4)(A)(i), noting that supporters of the petition accounted for over 50 percent of production of the domestic producers who expressed an opinion even if Giorgio’s position was not disregarded. Commerce found that dumping had occurred. The ITC determined that the domestic industry was materially injured; Commerce issued corresponding antidumping orders. Customs collected antidumping duties for distribution to “affected domestic producers.” Under the Byrd Amendment, an affected domestic producer “was a petitioner or interested party in support of the petition.” ITC rejected Giorgio’s request to be listed because Giorgio’s responses did not indicate support for the petition. Customs denied Giorgio’s claims for distributions. After the Federal Circuit upheld the Byrd Amendment against a facial First Amendment challenge, the Trade Court dismissed Giorgio’s suit, finding the support requirement constitutional under the standards governing commercial speech because it directly advanced the government’s substantial interest in preventing dumping. The Federal Circuit affirmed.