Pasta Exporter Rails Against Commerce's Method for Reporting Pasta Protein Content at CAFC

The Commerce Department's refusal to adjust its threshold for differentiating between different types of pasta as part of the duty calculation in the 2018-19 antidumping review of pasta from Italy violated the law, exporters La Molisana and Valdigrano di Flavio Pagani argued in their Sept. 26 opening brief at the U.S. Court of Appeals for the Federal Circuit. La Molisana said Commerce's use of the "protein content on a FDA nutrition fact panel to determine protein content" ignores the different standards used in finding the number of grams of protein (La Molisana v. United States, Fed. Cir. # 23-2060).

The use of this protein content, which led the agency to use a "breakpoint" of 12.5% protein content, is "fatally flawed" and leads to the comparison of dissimilar products. In addition, the use of the FDA's mandatory rounding rules is similarly "fatally flawed" and makes it nearly impossible for any product to be classified as standard pasta in the U.S. sales database, the brief said.

La Molisana filed the case to contest Commerce's method used for reporting the protein content of pasta sold in Italy and the United States. Pasta with a protein content over 12.5% is marked as "premium," while pasta with a protein content between 10% and 12.49% is marked as "standard," but the company submitted a market report to show this was not a proper differentiating point between the two pasta types.

The Court of International Trade found that La Molisana's evidence was not applicable industrywide, making it "unreliable and insufficient" (see 2304240035). This data included a market report from the company's counsel showing data on pasta bought from four grocery stores in the Washington, D.C., area and one food retail chain in Italy.

In its opening brief at the Federal Circuit, La Molisana focused its arguments on the alleged lack of evidence for Commerce's position. The exporter said that because "there is no evidence at all supporting Commerce's position that protein is calculated using the same standards," the appellate court must reverse the agency's decision. However, the exporter did mention its market report again, which looked at pasta from Giant, Safeway, Harris Teeter and Balducci's in the U.S. capital.

Addressing the trade court's point that the market does not reflect the whole U.S. market, La Molisana said that Commerce's suggestion that D.C. suburban supermarkets "might operate under some schematization of pasta pricing different from other parts of the United States is pure speculation and wholly unsupported by any facts." The agency "must abide by the fact that petitioners did not provide any rebuttal factual information," the brief said.