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Marler Blog

Providing Commentary on Food Poisoning Outbreaks & Litigation

Tomato Growers Thrown Out of Court

Thankfully we still have a few reporters, like Michael Doyle, paying attention to news that is important.  He reported yesterday in the Fresno Bee that the Federal Court of Claims has rejected claims of Florida tomato growers who say they lost business because of Food and Drug Administration warnings following FDA food safety warnings in 2008 that proved erroneous.

The growers that filed the original lawsuit, including High Hope Farms and Juniper Tomato Growers, both of Quincy, Fla., called the FDA’s warning a “regulatory taking.” Other companies, including DiMare Fresh, later joined the lawsuit.  The suit was built around the Fifth Amendment, which states that private property shall not be taken for public use without just compensation.  The Court slammed the door on that argument:

“Advisory pronouncements, even those with significant financial impact on the marketplace, are not enough to effect a taking of property under the Fifth Amendment,” U.S. Court of Federal Claims Senior Judge Lynn J. Bush stated.

As I wrote in 2011 following the CDC/FDA post-mortem in the New England Journal of Medicine, if there ever was a reason (in addition to the risk of bio-terrorism) to apply more resources to national, state and local surveillance of bacterial outbreaks, the 2008 Salmonella outbreak that sickened 1500 people in 43 states, the District of Columbia, and Canada is one that I hear (from consumers and industry) most often.  The goal should be to jump on illnesses early and then to correctly get the offending product out of the market as quickly as possible.

According to the journal article, the results of multiple investigations (in 2008) indicated that jalapeño peppers were the major vehicle for transmission, and serrano peppers were also a vehicle. These findings include epidemiologic associations between illness and consumption of hot peppers, the convergence of tracebacks to a single farm in Mexico that grew both types of peppers but not tomatoes, and isolation of the outbreak strain from agricultural water and serrano peppers collected on that farm.

Recall, however, that early in the outbreak, raw tomatoes were thought to be a vehicle because there was a strong association between illness and consumption of raw tomatoes. Tomatoes had been implicated in many Salmonella outbreaks. The initial finding that tomatoes were a source was supported by the observation that the number of new cases decreased shortly after the national tomato alert.  However, the decline in cases shortly after the nationwide tomato advisory could be explained if avoidance of raw tomatoes indirectly reduced exposure to contaminated hot peppers.

Bottom line, local, state and federal authorities got it wrong, but did so facing the balancing act of alerting the public to a possible risk or waiting until more facts were know, therefore possibly increasing the numbers that become sick.