Five years after the U.S. Food and Drug Administration (FDA) legally, but mistakenly, warned people in Texas and New Mexico that tomatoes were likely responsible for a multistate outbreak of Salmonella Saintpaul, the tomato growers who suffered losses want to be compensated.
In a claim filed this week with the U.S. Court of Federal Claims, 17 tomato growers from Florida, Georgia and South Carolina want to be individually compensated for a total of about $40 million. They say that an outbreak of foodborne illness damaged them, but that they were not responsible for it. The claim includes the possibility of a class action, which would probably cost the government millions more.
The court, located in Washington, D.C., hears federal claims against the U.S. government. The tomato growers are bringing their action for just compensation in an area where the federal claims court has exclusive jurisdiction—the takings clause.
Just as if they gave up land for a federal highway, the growers, who say they lost the value of their late-2008 tomato crop due to unjustified public safety concerns, want the government to compensate them for their losses.
Like today’s Cyclospora outbreak, finding the source of the 2008 Salmonella Saintpaul outbreak proved elusive for state and federal officials. Between April 23 and June 1, 2008, there were 57 reported cases of the rare Saintpaul serotype of Salmonella in New Mexico and Texas. Meanwhile, another 30 cases were being investigated in Arizona, Colorado, Idaho, Illinois, Indiana, Kansas and Utah.
On June 3, 2008, FDA acted by warning people in New Mexico and Texas not to eat certain raw red tomatoes. While the June 3 public warning concerned only those two states and the FDA said in its announcement that the source of the contaminated tomatoes could be limited to a single grower or packer or to tomatoes from a specific geographic area, growers say its effect was national and posed dire economic consequences for them.
By June 7, the number of states reporting the outbreak strain expanded from 9 to 16. By June 13, the count was up to 228 confirmed cases in 23 states. FDA also began suggesting that tomatoes from certain areas were not associated with the outbreak.
As they are now, FDA was under pressure in 2008 to come up with answers.
“Point is that tracing is, as ever, complex,” said David Acheson, then-associate commissioner for foods at FDA. “We’ve talked before about two specific complexities around tomatoes. We are getting closer, but as of yet there is no specific geographic location identified.”
In their claim, the tomato growers point out how quickly national chains such as McDonalds and Wal-Mart cancelled their tomato orders as FDA tried to sort out the nation’s complex system of growing, harvesting, packing and shipping tomatoes, mostly leaving consumers confused and defensive.
The claim says 32 percent of Georgia’s tomatoes grown for the spring 2008 crop were “simply left in the fields ….” Tomatoes that were going for $18-19 per box before the FDA announcement were selling for just $4 afterwards. Some Florida growers reported selling boxes for fifty cents to $1.
Florida and Georgia growers say they lost $100 to $125 million. They say tomato growers in the Southeast lost the economic benefit of their spring crop.
The claims states: “The FDA’s issuance of public heath warnings directly specifically against red plum, red Roma, and red round tomatoes and particularly involving those tomatoes associated with the southeast United States production, resulting in general public refusal to purchase The Tomato Farmers’ product, was a taking of The Tomato Farmer’s tomato crops for a valid public purpose, namely the preservation of public health against a possible widespread salmonellosis epidemic during the FDA’s investigatory phases regarding the 2008 Salmonella outbreak.”
While FDA did its lawful work, the tomato growers claim they were deprived of their property. In their filing, the growers suggest a class action for all red plum, red Roma and red round tomato growers from Georgia, Florida, Alabama, Louisiana, North Carolina and South Carolina.
FDA’s investigation would eventually find that raw peppers grown in Mexico were responsible for the 2008 Salmonella Saintpaul outbreak.© Food Safety News