Sep 22, 2014

Tomato growers lose ‘takings’ lawsuit against FDA

A federal judge has ruled against tomato “growers, packers and shippers” in Florida, Georgia and South Carolina. The groups had sought federal reimbursement for damages after the FDA mistakenly named certain tomatoes as the likely cause of a 2008 Salmonella Saintpaul outbreak that was later identified as coming from jalapeño and Serrano plants grown in Mexico.

Senior Federal Judge Lynn J. Bush granted Sept. 18 a government motion to dismiss the case and entered a final judgment in favor of the defendants.

According to Bush’s ruling, “there are no plausible claims for regulatory takings arising from warnings to consumers of a possible link between tomatoes and (the) salmonella outbreak … public statements by government officials are not sufficient, by themselves, to effect a regulatory taking, even if these statements profoundly affect the market for the plaintiffs’ properties.

“A regulatory takings claim is not plausible and cannot proceed when the government action at issue has no legal effect on the plaintiff’s property interest,” the judge determined. “Advisory pronouncements, even those with significant financial impact on the marketplace, are not enough to effect a taking of property under the Fifth Amendment. These FDA advisories fall within the rule of government actions that have no legal effect on property interests and that do not constitute regulatory takings.”

Attorneys for the growers maintained FDA’s review of the outbreak in June 2008 was flawed and that the agency had no confirmation of a link between tomatoes and the outbreak. They said their clients should get “just compensation” from the government because the flawed public health warnings resulted in a market collapse for their tomatoes.

– Gary Pullano