Tomato growers are suing the federal government, seeking about $40 million in losses from 2008 when the Food and Drug Administration erroneously blamed tomatoes for a salmonella outbreak later linked to hot peppers from Mexico.
Florida attorney Frank Baker filed the suit July 29 in the U.S. Court of Federal Claims, Washington D.C., the only U.S. court with jurisdiction in cases involving the Constitution’s Fifth Amendment "taking clause."
Baker said Aug. 2 that the growers — from seven states — are also seeking class action status. They want reimbursement for all U.S. tomato growers who lost business because of warnings from the FDA that cautioned consumers to not eat tomatoes from certain regions during the outbreak investigation.
Officials with the FDA did not immediately respond to calls for comment. Baker said the growers are not technically suing FDA, rather they are suing the federal government. The Justice Department will appoint an attorney to handle the case.
According to the lawsuit, retailers and foodservice operators canceled orders when the FDA issued the warnings during the summer of 2008. Growers contend that tomato prices dropped from $18-$19 to $4 per box, with some growers saying they had to sell their tomatoes for as low as 50 cents per box.
The growers are: High Hope Farms LLC, SK Enterprises of North Florida Inc., Butler Farms Inc., Two Feathers Farms Inc., Quality Produce LLC, Dan Jones, Circle C Produce LLC, Juniper Tomato Growers Inc., JWM Farms LLC, Jackson Farms, Flowers Farms LLC, Patterson Farm Inc., Hopkins Farms LLC, Mobley Greenhouse Investments LLC, Gregory Enterprises LLC, Townsend Brothers Farms Inc. and Murray Farms.
Reggie Brown, manager of the Florida Tomato Exchange, did not immediately respond to requests for comment on the case.
Two other cases were filed in recent years in South Carolina by tomato growers seeking reimbursement. Those cases included counts related to the Fifth Amendment “taking clause,” but those counts were thrown out because they are not within the regular federal courts’ jurisdictions. The two cases are still pending.
Overall, the tomato industry in Florida estimated total losses at $600 million, according to the new lawsuit. The industry in Georgia estimated that tomato growers lost $100 million.
Baker said the Court of Federal Claims generally moves a little quicker than other courts in the federal system.
“A judge has already been assigned, as has an ADR (Alternative Dispute Resolution coordinator),” Baker said Aug. 2.