A civil complaint filed Tuesday says the administration revived Section 338 from the Tariff Act passed in 1930, labeling it a "relic of the retaliation-based tariff policy" that has been "impliedly repealed" by later laws. On July 20, Trump issued three proclamations invoking Section 338 to hit different sets of Canadian imports over alleged unfair treatment tied to U.S. motor vehicles, alcohol, and dairy.
The measures kicked in on Aug. 22, following unsuccessful, last-ditch negotiations with Canadian officials in Washington that collapsed. The list includes hockey sticks, wine, honey, wigs, and more. Canada answered with "dollar for dollar" tariffs on U.S. goods. The filing notes this is the first time the 96-year-old statute has been used to impose a tariff.
Gellert Global Group, a food importer headquartered in New Jersey with more than 1.7 billion dollars in annual revenue, says its cheeses are caught up in the duties. In 2025, it imported 71 million dollars worth of Canadian cheese - among them sheep's- and goat's-milk varieties, brie, camembert, mascarpone, and the hybrid style borgonzola - according to the complaint.
Under USMCA, Gellert says those imports faced no tariffs. The administration said in July it would not renew that pact for another 16 year term. Now, the suit says Gellert must pay a tariff equal to 50 percent of the customs value declared at entry for its Canadian cheese, roughly 40 million dollars per year. The company plans to absorb the hit through year end but calls that "not sustainable long term," warning it would then raise prices, risking lower sales and customer loyalty, potential loss of product placements, and supply chain disruptions as producers cut back or close.
The lawsuit asks the court to declare the Section 338 duties unlawful, stop their enforcement, and order refunds with interest. Even if the 1930 law stands, the filing argues the administration did not make the required factual finding that Canada is applying unequal, unreasonable charges or trade restrictions on U.S. goods, or is using customs practices that unfairly disadvantage the U.S. It also notes any duties must be limited to offsetting a proven burden or disadvantage.
The complaint argues that the Canadian steps referenced in the proclamations are not discriminatory toward the United States. The filing says two of the measures were retaliatory steps by Canada to counter the President's own tariffs - including those the Supreme Court struck down in February - and contends that such retaliation is not discrimination. Another centers on USMCA dairy quota provisions that, according to the suit, provide American cheese with superior access to Canada compared with what most countries receive.
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Gellert is represented by the Liberty Justice Center, which previously succeeded in challenging the administration's "reciprocal" tariffs. After the Supreme Court's February decision, the administration is refunding an estimated 166 billion dollars collected through those duties. The Liberty Justice Center says it has two other active cases over what it calls the misuse of statutes to impose sweeping tariffs.
"This case is not about the president. It is about the presidency," CEO Sara Albrecht said Tuesday. "No president should have the power to pull a dormant statute off the shelf and use it to impose sweeping tariffs or import bans without the limits Congress required." The White House did not provide an immediate response to a request for comment.
The complaint asks the court to block the tariffs and order refunds with interest for duties already paid. If the tariffs remain, companies like Gellert say they will raise prices, risking lower sales and other disruptions cited in the suit.
The bottom line: this suit tests whether a 96 year old statute can lawfully support broad 50 percent tariffs today, in what the filing says is its first use to impose a tariff.
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