Appeals Court Tosses Suit Over Tomato Warnings

     (CN) – Tomato growers cannot collect damages after the U.S. government erroneously linked their produce to a salmonella outbreak, the Federal Circuit ruled.
     The litigation stems from a 2008 Food and Drug Administration investigation of a salmonellosis outbreak that included 57 reported cases.
     In a press release, the FDA stated that the outbreak “appeared to be linked” to consumption of “raw red plum, red Roma or round red tomatoes.” It later issued a second press release to identify areas where tomatoes were safe to eat.
     Ten days after issuing its warning, the agency stated that “fresh tomatoes now available in the domestic market are not associated with the current outbreak.”
     Eventually, the link between the tomatoes and the outbreak was disproven.
     Dimare Fresh Inc. and 31 other Florida and south Georgia tomato farmers sued the federal government, alleging the FDA’s pronouncements violated their Fifth Amendment rights against a regulatory taking of property.
     They also stated that the value of their tomatoes was destroyed due to a decrease in consumer demand.
     While the farmers acknowledged that their crops were not banned or quarantined, they stated that the government action had “the same burdensome effect.”
     The Federal Court of Claims disagreed and dismissed the case.
     The tomato growers appealed to the Federal Circuit, which also ruled in the government’s favor in a decision written by U.S. Circuit Judge Evan Wallach for the three-judge panel.
     “The problem with the tomato producers’ contention is that it seeks to weave a regulatory takings claim … simply out of the fact that the FDA’s press releases and media briefing impacted market demand for their produce,” he wrote.
     Wallach added that the government did not prohibit the sale of the farmers’ product and that the fact that the link was disproven was “academic.”
     “What the tomato producers effectively request is for this court is to find that government action devoid of coercion, legal threat, regulatory restriction or any binding obligation may effect a regulatory taking,” the judge wrote. “We will not.”

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