Indeed, some of the provisions of the law suggest that durables were the intended target. Under the special circumstances provisions, duties may be applied retroactively to inventories of the imported product. Perishable products are not held in inventory. The retroactive duties may, however, also be applied to perishable products which have moved through the marketing channel and reached consumers, as was the case in the current Chinese apple juice concentrate case. The observed pricing pattern for perishable products also draws into question the applicability of antidumping legislation.
Produce can traverse borders without a definite buyer in place, destined for wholesale markets.
Once harvested and in transit, shippers may be forced to sell at distress prices under some market conditions. In these circumstances, while the product may be sold for less than its variable costs of production, it is not necessarily the case that it was sold for less than fair market value, provided that similar domestic products were also selling at distress prices. These distress prices may be witnessed for agricultural products sold for consumer markets or as inputs in processed markets, which raises other concerns over the current U.S. antidumping law. For food and agricultural products this can be problematic, as agriculture is part of a value adding marketing system, where the product is often further processed. Under the statutes of the current law, the growers of the agricultural input product do not have standing in a case where the dumping occurs in the processed product market, even though they may be severely impacted by these actions.