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OTTAWA, December 24, 2002
Concerning a Determination Under Subsection 76.03(7) of the Special Import Measures Act Regarding
CERTAIN PREPARED BABY FOODS ORIGINATING IN OR EXPORTED FROM THE UNITED STATES OF AMERICA
On December 17, 2002, pursuant to subsection 76.03(7) of the Special Import Measures Act, the Commissioner of Customs and Revenue determined that the expiry of the finding made by the Canadian International Trade Tribunal on April 29, 1998, in Inquiry No. NQ-97-002, concerning certain prepared baby foods originating in or exported from the United States of America, is likely to result in the continuation or resumption of dumping of the goods.
This statement of reasons is also available in French. Please refer to the "Information" section.
Cet énoncé des motifs est également disponible en français. Veuillez consulter la section « Renseignements ».
TABLE OF CONTENTS
On August 19, 2002, the Canadian International Trade Tribunal (Tribunal), pursuant to subsection 76.03(3) of the Special Import Measures Act (SIMA) initiated an expiry review of its finding made on April 29, 1998, in Inquiry No. NQ-97-002, concerning certain prepared baby foods originating in or exported from the United States of America (United States). The purpose of the expiry review is to determine whether the finding should be continued or rescinded. The finding is scheduled to expire on April 28, 2003.
As a result of the Tribunal's decision to initiate an expiry review, the Commissioner of Customs and Revenue (Commissioner) initiated an investigation on August 20, 2002, to determine whether the expiry of the Tribunal's finding is likely to result in the continuation or resumption of dumping of the goods. On the basis of the information available, the Commissioner determined, pursuant to subsection 76.03(7) of SIMA, on December 17, 2002, that the expiry of the finding is likely to result in the continuation or resumption of dumping of the goods.
On December 18, 2002, the Tribunal initiated an inquiry to determine whether the expiry of the finding in respect of the goods is likely to result in injury or retardation to the domestic industry. The Tribunal will make a decision on this matter by April 28, 2003. If the Tribunal determines that the expiry of the finding is likely to result in injury or retardation, the finding will be continued, with or without amendment. If the Tribunal determines that the expiry of the finding is unlikely to result in injury or retardation, the finding will be rescinded.
An anti-dumping investigation was initiated on October 3, 1997, in the matter of certain prepared baby foods originating in or exported from the United States, following a complaint filed by
H.J. Heinz Company of Canada Ltd. (Heinz Canada). A preliminary determination of dumping was made on December 30, 1997, and a final determination of dumping was made on
March 30, 1998. The Tribunal issued a finding of injury in the matter of certain prepared baby foods on April 29, 1998.
On July 3, 1998, the Tribunal commenced a public interest investigation concerning the application of anti-dumping duties imposed on the subject prepared baby foods. On November 30, 1998, the Tribunal issued a report regarding the public interest investigation into the subject goods, and recommended that the Minister of Finance reduce the level of
anti-dumping duties applied to the subject goods. On June 23, 1999, the Minister of Finance, taking into account the Tribunal's recommendation, registered the Prepared Baby Food
Anti-dumping Duty Remission Order (OIC 99-1151)(Remission Order). This order became effective on July 1, 1999, and reduced the level of applicable anti-dumping duties on the subject goods.1
Injury findings and orders expire five years from the date of the injury finding or order unless an expiry review has been initiated. On June 28, 2002, the Tribunal issued a notice of expiry of the finding indicating that the above-mentioned finding was scheduled to expire on April 28, 2003. The notice of expiry invited opinions from interested persons or governments requesting or opposing the initiation of an expiry review. On August 19, 2002, the Tribunal initiated a review of the finding, as it was of the opinion that such a review was warranted, and provided notice to the Commissioner.
On August 20, 2002, the Commissioner initiated an investigation to determine whether the expiry of the finding is likely to result in the continuation or resumption of dumping of the goods. In accordance with the Anti-dumping and Countervailing Directorate's guidelines on the conduct of expiry reviews, interested parties were requested to provide any information they considered relevant to the Commissioner's investigation.
The period of review for this expiry review investigation was January 1, 1999, to June 30, 2002.
Certain prepared baby foods subject to this review are defined as:
certain prepared baby foods, containing finely homogenized vegetables, fruit, and/or meat which may include some visible pieces of not more than 6.5 mm in size, and strained juice, put up for retail sale as food and beverages for infants of ages 4 to 18 months, in containers of a net volume not exceeding 250 ml, excluding organic baby food and frozen baby food preparations, originating in or exported from the United States of America.
Prepared baby foods are usually packed in hermetically sealed containers or glass jars, and are commonly referred to in the industry as "jarred baby foods". They are prepared from a variety of ingredients and in different consistencies to be suitable for infants of different ages.
Subject baby foods are formulated for infants of ages approximately 4 to 18 months and include various single ingredient preparations, and combinations of ingredients such as multiple vegetable or fruit mixtures and meat with vegetable preparations. These preparations may include other ingredients such as rice, pasta, or cereal, in addition to vegetables, fruit, and/or meat. The foods meant as beginner foods for infants starting on solid foods are generally single ingredient preparations, like carrots or peas, which are strained and puréed so they do not need to be chewed before swallowing. Multiple ingredient preparations allow for the introduction of greater variety to the growing infants diet. The foods formulated for infants who are old enough to begin chewing solid foods contain small pieces of fruit, vegetable or meat, not more than 6.5 mm in size, so it is still easy to swallow. Strained infant juices and junior juices are available in a number of varieties.
Organic baby foods and frozen prepared baby foods are excluded from the finding, as are dry cereal mixes and "toddler" foods. Toddler preparations contain larger pieces of food and are intended for older children.
The Harmonized System (H.S.) provides the following classification numbers under which subject prepared baby foods may be classified:
At the start of the review, the Tribunal distributed a notice of the initiation of the expiry review and an expiry review schedule to more than 100 persons including the domestic producer, the importer, exporters, various associations, councils, health professionals, community support and health groups and the Government of the United States of America. At the same time, any person or government having an interest in the Commissioner's investigation was invited to provide a submission to the Commissioner, containing information that they deemed relevant.
Foreign producer questionnaires were sent to three United States producers: Gerber Products Company (Gerber U.S.),
Beech-Nut Nutrition Corporation (Beech-Nut) and H.J. Heinz Company of Pittsburgh
(Heinz U.S.). An importer questionnaire was sent to Novartis Consumer Health Canada Corporation (Novartis Canada, previously Gerber Canada), who was the sole importer identified during the original investigation in 1997.2 A domestic producer questionnaire was sent to
Submissions were received from Heinz Canada (domestic producer), Gerber U.S. (foreign producer/exporter) and Novartis Canada (importer).
Participants are divided into two broad categories: "parties to the proceeding" and "interested persons". Both groups are allowed to file any information that they feel pertinent and may file case arguments and reply submissions. The main difference between the two groups is that counsel for "interested persons" are not permitted access to confidential or protected information, while counsel for "parties to the proceeding" are permitted access.
A person is regarded as a "party to the proceeding" if the person has a direct interest in the outcome of the proceeding and actively participates in the proceeding. In an expiry review proceeding, only exporters, importers and Canadian producers may be considered parties to the proceeding.
In this expiry review, Gerber U.S. and Heinz Canada were considered parties to the proceeding, as they had a direct interest in the outcome of the proceeding and actively participated in the proceeding. Novartis Canada was not considered a party to the proceeding, as it did not provide a complete response to the Canada Customs and Revenue Agency's (CCRA) questionnaire.
During an expiry review investigation, all parties to the proceeding and interested persons may submit arguments in writing to the Commissioner regarding the likelihood of continued or resumed dumping should the finding or order be permitted to expire. As well, all parties to the proceeding and interested persons may make reply submissions or rebuttals in response to case arguments made by other parties to the proceeding and other interested persons. Arguments and reply submissions must be based on information contained on the administrative record. Case arguments and reply submissions were received from Gerber U.S. and Heinz Canada.
Heinz Canada is a Canadian producer of processed food products, with four production facilities across Canada. Heinz Canada's products encompass a wide range within the processed food market, including: jarred baby food, infant cereals, ketchup, beans and pasta, pet foods, pasta sauces, various frozen vegetables and fruits, processed fish and appetizers. Heinz Canada was incorporated in 1940, and has been continuously operating as a wholly owned subsidiary of Heinz U.S.5
In Canada, Heinz Canada's marketing structure for baby food consists of two or three levels of trade. Heinz Canada will sell its baby food products either directly to retail accounts or to wholesale/buying groups who sell to a variety of retail accounts.6 Advertising for baby food in Canada is conducted at two separate levels: the consumer level and retail level. At the consumer level, advertising is directly aimed at the consumer to generate interest in the product. Producers may accomplish this via mass media advertising, a web site and/or various other promotional activities. At the retail level, Heinz Canada engages in shelf management, shelf promotion (coupons), promotional support and various programs aimed at the wholesale and retail markets.7
Since 1997, the Canadian market for baby food has decreased, following the trend of declining consumption of baby food8, with the vast majority of this decrease occurring between 1997 and 1999.9 Since 1999, the Canadian market for subject goods has remained relatively flat.10 In 1997, the value of the Canadian market was approximately $60 to $70 million CDN.11 More recent figures on the Canadian market are confidential and cannot be discussed in this document.
Gerber U.S., of Fremont, Michigan, was the only identified exporter of the subject goods from the United States at the time of the original investigation in 1997.12 Although there were other United States producers of the subject goods, none actively exported the subject goods to Canada. Gerber Canada, a related company of Gerber U.S., was identified as the only importer of the subject goods during the original investigation. Since the finding in 1998, Novartis Canada has assumed all responsibilities for the marketing of Gerber products in Canada, and as such, Gerber Canada ceased to exist as an independent entity. Novartis Canada is a related company of Gerber U.S.'s parent company, Novartis AG.13
There have been various trends associated with the Canadian baby food market since the Tribunal's injury finding in 1998. For example, during the period of review, there has been an increase in the number of non-subject organic choices of baby food in the Canadian market. In October 2001, Heinz Canada launched a line of organic baby foods in the Canadian market under the brand label "Heinz Organic". Also, in November 2001, Loblaws launched their own house brand of organic baby food under the label "PC Organics", which is manufactured by a
United States based company, J.R. Wood.14 Other trends include an increase in breastfeeding and a declining Canadian birthrate. These trends contributed to a marginal decline in the market for subject goods in Canada over the period of review.
Three producers dominate the United States baby food market. The market leader is Gerber U.S., with Heinz U.S. and Beech-Nut constituting the vast majority of the remainder of the
United States market for subject baby food.15 The remaining United States market is divided amongst various small producers.
Gerber U.S. is a manufacturer and distributor of baby food and other baby related products including spill proof bottles, breastfeeding accessories and juvenile life insurance (via a related subsidiary). Gerber U.S. is a wholly owned subsidiary of Gerber Holding Company, which is wholly owned by the Novartis Corporation and its parent entity of Novartis AG, Switzerland.16
There have been various trends associated with the baby food market in the United States since the Tribunal's injury finding in 1998. There has been a substantial increase in the popularity and acceptability of breastfeeding throughout the United States.17 As well, the number of women who continue to breastfeed their babies for a longer period has increased substantially.18 Other trends include an increase in the popularity of organic baby food and overall stagnant birthrates. All of these factors have contributed to a flat market for subject goods.
Subsection 76.03(7) of the SIMA requires the Commissioner to determine whether the expiry of a finding or order in respect of goods of a country or countries is likely to result in the continuation or resumption of dumping of the goods. Pursuant to subsection 37.2 (1) of the Special Import Measures Regulations (SIMR), the Commissioner, in making the determination, may consider any factor specifically identified in paragraphs (a) to (i), as well as any other factors relevant in the circumstances.
The following factors were found to be of particular relevance in the present review:
An analysis of each factor follows. The analysis is based on the information contained in the administrative record, which was available to all parties to the proceeding as well as the Commissioner.
During the period of review there have been no imports of subject goods from the
United States.19 As stated earlier, the Prepared Baby Food Anti-Dumping Duty Remission Order effectively reduced the applicable anti-dumping duty on imports of subject baby food from the United States by approximately two-thirds20, thereby allowing United States exporters to sell the subject goods in Canada at dumped prices. In spite of this, United States exporters did not export subject goods to the Canadian market. The cessation of exports of the subject goods by United States exporters seems to indicate an inability to compete in Canada even with the Remission Order in place.
The CCRA and the Tribunal have given significant consideration to the absence of imports of subject goods in past decisions. In the following cases, the Commissioner found that the absence of imports is either a strong indicator that dumping will continue or resume, or that the exporter could not compete at undumped prices:
Furthermore, the cessation of imports of subject goods after a finding is an important factor considered in other jurisdictions. The United States Department of Commerce similarly held that the:
"Existence of dumping margins after the finding, or the cessation of imports after the finding, is highly probative of the likelihood of continuation or recurrence of dumping...If imports cease after the finding is issued, it is reasonable to assume that the exporters could not sell in the United States without dumping and that, to reenter the U.S. market, they would have to resume dumping. Therefore, the Department normally will determine that revocation of an antidumping finding or termination of a suspended dumping investigation is likely to lead to continuation or recurrence of dumping".24
Although significant consideration has been associated with the absence of imports of subject goods in the past, this factor has been evaluated along with the other issues of concern in the case. The absence of imports of the subject goods is evaluated on a case-by-case basis and in some circumstances may not indicate a likelihood of resumed or continued dumping. However, based on the best information available, this does not appear to be the case with United States exporters of the subject prepared baby food. The cessation of exports of the subject baby food to Canada appears to be related to an inability to compete in the Canadian market, even at a certain level of dumping.
Summary - The absence of imports of subject goods during the period of review is an indication that exporters/producers from the United States are unable to compete in the Canadian marketplace, even at a certain level of dumping, and that, to re-enter the Canadian market, United States exporters of subject baby food would have to resume dumping.
Gerber U.S. has indicated that it would like to re-enter the Canadian baby food market.25 Although Gerber U.S. has not exported the subject goods during the period of review, it continues to export other baby related goods to Canada. It has a sales infrastructure already in place and continues to have marketing relationships with large Canadian baby food retailers.26 The sales infrastructure of Novartis Canada would allow Gerber U.S. to focus on supplying drug store chains, the area of the baby food industry in which the former Gerber Canada achieved most of its success.
Gerber U.S. has indicated that it would face a number of significant obstacles in attempting to re-enter the Canadian market. These include the creation of new moulds to accommodate the 128 ml jar requirements, labelling regulations, the seasonal production schedule of certain products and the re-negotiation of marketing arrangements.27 Having said this, Gerber U.S. has also stated that it could re-enter the Canadian market in 6 to 12 months.28 Heinz Canada argues that the above barriers, which Gerber U.S. claims would impede re-entry, could be overcome much quicker than Gerber U.S. has indicated.29 Based on the best information available, it appears that Gerber U.S. could overcome the obstacles facing it and re-enter the Canadian market in a relatively short time period if the finding was allowed to expire.
Summary - The largest United States producer has indicated a willingness to re-enter the Canadian market in a relatively short period. Since Canada was an export market of this producer prior to the finding, it appears likely that United States exporters would target the Canadian market if the finding was allowed to expire. As stated in factor i., in order to re-enter the Canadian market, United States exporters of subject baby food would have to resume dumping.
Evidence indicates that United States producers could use their excess capacity to supply a large portion of the Canadian market. Furthermore, based on the information available, it is expected that the United States will continue to have excess capacity to produce the subject goods. All figures regarding capacity of United States baby food producers are confidential and, therefore, cannot be discussed in this document.
Summary - Based on the state of the industry, the market and excess capacity to produce baby food in the United States, it is likely that United States baby food producers would resume dumping into Canada if the finding was allowed to expire.
The Canadian market's close proximity to the United States, and the fact that there were exports of subject goods to Canada prior to the finding, indicates that Canada would be a very attractive export destination for United States baby food producers if the finding was allowed to expire.
Evidence indicates that export patterns of United States baby food producers, coupled with an expectant flat United States market for the next number of years30, could result in a resumption of United States exports to Canada. All figures regarding export performance of United States baby food producers are confidential and, therefore, cannot be discussed in this document.
Summary - Based on the export performance of United States baby food producers, it is likely that Canada would be targeted as an export market if the finding was allowed to expire.
To summarize, the following points were particularly relevant in the determination:
In conclusion, the analysis of the individual factors demonstrates that it is likely that exporters from the United States will resume their past practices of dumping subject baby food into Canada if the finding of injury on these goods is allowed to expire.
Normally, the Commissioner will not consider any new information submitted by participants subsequent to the closing of the record date. However, the Expiry Review Guidelines outline the various factors that the Commissioner will consider in deciding whether to accept new information submitted after the closing of the record date.
Certain new information was submitted after the closing of the record date (October 8, 2002) by counsel for Gerber U.S. Having taken into consideration the factors outlined in the Expiry Review Guidelines, it was decided that certain new information would be taken into consideration for purposes of this proceeding and would form part of the administrative record. It was also decided that certain other new information would not be taken into consideration and would not form part of the administrative record.
Furthermore, counsel for Gerber U.S. and Heinz Canada submitted case arguments as part of subsequent communications after the close of the filing date (November 2, 2002) for case arguments and reply submissions. These case arguments were not included on the administrative record.
The CCRA's exhibit listing recorded all submissions received by the CCRA, as well as any subsequent revisions. Counsel for parties to the proceeding were informed of all decisions made in this regard.
The Tribunal commenced its inquiry to determine whether the expiry of the finding is likely to result in injury or retardation on December 18, 2002.
If the Tribunal determines that the expiry of the finding is likely to result in injury or retardation, the finding will be continued, with or without amendment. If this is the case, the CCRA will continue to levy any applicable anti-dumping duties on importations of the subject goods.
If the Tribunal determines that the expiry of the finding is unlikely to result in injury or retardation, the finding will be rescinded. Anti-dumping duties would no longer be levied on importations of the subject goods from the date the finding is rescinded.
For further information, please contact one of the officers identified below:
Canada Customs and Revenue Agency
Anti-dumping and Countervailing Directorate
100 Metcalfe Street, 11th Floor
Elizabeth White (613) 954-7180
Blair Hynes (613) 954-1641
Hugues Marcil (613) 954-6340
FAX: (613) 954-2510
1 There is currently one other remission order pertaining to the subject baby food - Charitable Food Donations Anti-Dumping and Countervailing Duty Remission Order (OIC 98-1889). This order effectively eliminated all applicable anti-dumping and countervailing duties on food donated by a non-resident of Canada to a "registered charity" within the meaning of subsection 248(1) of the Income Tax Act.
27 Gerber U.S., Non-Confidential Submission outlining various labeling, production and packaging requirements which it believes would delay any re-launch of Gerber brand baby food in the Canadian market.