On April 22, 2024, the Canada Border Services Agency (“CBSA”) issued a Notice of Initiation of Investigation under the Special Import Measures Act (“SIMA”) in respect of the alleged dumping and subsidizing of certain pea protein from China.  This investigation was prompted by a joint complaint filed by two manufacturers in Manitoba. 

The goods under investigation are more specifically described as: 

High protein content (“HPC”) pea protein originating in or exported from the People’s Republic of China in all physical forms regardless of packaging, with a minimum pea protein content of 65 percent on a dry weight basis calculated using a Jones factor of 6.25 (the “Subject Goods”).  

The following are excluded from Subject Goods:

Texturized pea protein, and HPC pea protein that has been incorporated into finished products where the HPC pea protein itself is further processed such that it does not retain its original physical and chemical characteristics and other properties.

Further details on the Subject Goods and exclusions can be found in the notice itself.

Parallel CITT Investigation

On April 23, 2024 the Canadian International Trade Tribunal (the “CITT”) issued a notice initiating a preliminary injury inquiry in respect of the same Subject Goods, a parallel process to determine whether the alleged dumping and/or subsidy has caused or is threatening to cause injury to the Canadian industry.

Why Do I Care?

If the CBSA and CITT ultimately conclude that dumping of the Subject Goods has caused injury or is threatening to cause injury to the Canadian industry, Anti-Dumping Duties (“ADDs”) and Countervailing Duties (“CVD”) will be imposed, effectively increasing the costs of the Subject Goods. 

Anti-dumping investigations offer Canadian importers and foreign exporters and producers the opportunity to participate in the CBSA investigation and obtain their own specific Normal Values, which are preferable to the ADDs/CVDs payable on imports from producers who do not have Normal Values. 

It may  also be possible to request a product exclusion from the CITT on the basis that certain goods are unique and the Canadian industry is incapable of manufacturing a substitutable product.

What is the Timeline for Next Steps? 

Under SIMA the matter will proceed along two parallel tracks:

• The CBSA will send out Requests for Information: Importers must respond by May 16^th, and exporters by May 29^th;
• The CITT requires any interested participants and their counsel to file Forms with the CITT by May 6^th, and any opposing submissions must be filed by noon on May 22^nd.

The CITT’s preliminary determination is expected by June 20, 2024, and CBSA’s preliminary determination is expected by July 22, 2024, each followed by a Statement of Reasons 15 days later. 

How do I get involved?

Specialized legal advice is generally required. Given the strict timelines, and amount of work involved in responding to CBSA and CITT questionnaires, any parties potentially impacted should contact their lawyers immediately to discuss next steps – regardless of whether you have received a questionnaire! 

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