The Mexican tomato growers on Tuesday responded to the Commerce Department's latest proposal for a revised Tomato Suspension Agreement with on-the-record comments about the proposals.
Highlights of those comments include the following:
- Several Commerce proposals would violate antitrust laws by putting in place prices that go well beyond those that eliminate the injurious effects of any alleged dumping and putting in place quotas masquerading as border inspection mechanisms. The growers note the following in their comments: "The major changes being proposed by the Department are not the result of any independent analysis by the Department that the changes are necessary to accomplish the statutory requirement. Rather, they are proposals formulated by the Florida Tomato Exchange, the competitive producers in the marketplace. Their purpose, plain and simple, is not to eliminate unfair pricing under the statute but to eliminate competition and inflict harm on competitors. …Under those circumstances, the parties could not agree to those demands without exposure to antitrust liability.
- The Commerce proposals would set up a draconian border inspection mechanism that would hold up perishable fruit at the border for a minimum of 72 hours requiring 100 percent inspection of more than 120,000 trucks carrying tomatoes each year without any underlying legal authority or any reason. The comments note: "First, the proposal is inoperable on a technical level. Second, the proposal is unenforceable. Third, the proposal runs afoul of USMCA. Fourth, the structure of the proposal establishes a mechanism to restrict volume, which is precluded under U.S. law. Fifth, the proposal is anticompetitive. And, finally, the Department has not identified any reason why such draconian measures are necessary…. As discussed above, there is currently no mechanism that gives the parties authority to block imports. The proposal of the Mexican Industry to amend the Federal marketing order on Florida tomatoes would provide that authority."
- The Commerce proposals would take away the legal rights of U.S. retailers and other buyers to be reimbursed for liquidated damages for breach of warranty based on condition defects in fruit, and hand Florida tomato growers, who also import Mexican tomatoes, a monopoly on distributing Mexican tomatoes in the United States to the detriment of other U.S. businesses. The comments state: (The proposal) goes well beyond creating a level playing field, and instead will create a practical, government sanctioned monopoly that benefits a few of the Florida-related firms but does not necessarily help all Florida tomato growers. Meanwhile, the creation of this monopoly would harm other businesses, including those that have been selling market-ready tomatoes for generations."
The Mexican growers look forward to seeing a new proposal from Commerce that takes account of these comments. Oscar Woltman, president of the largest Mexican grower association, noted the following: "As we have said before, we stand ready to negotiate and sign a fair agreement, but it must be fair. Otherwise we will pursue our legal rights at the International Trade Commission."
For more information: