Legal News

Tomato Industry Hopes to Recoup on Losses Caused by Salmonella Flap

By Dan Slater

Last week, when we spoke to food-borne illness guru Bill Marler, he told us the following about the salmonella saintpaul outbreak: his new red VW Bug is not subliminal advertising for tomato lawsuits. On a more substantive point, Marler said that produce-related litigation would be tough, primarily because it’d be hard to pin down the right folks to sue.

(AP Photo/Rich Pedroncelli)

On this point, Marler appears to have been spot-on. Earlier this week, the FDA found a tainted jalapeño in McAllen, Texas. Yet, it says it doesn’t know where the smoking jalapeño was contaminated. It could’ve happened at harvest in Mexico or anywhere along the pepper’s journey to the distribution facility in Texas.

Meanwhile, the tomato community is more than a little upset at having been labeled as the culprit in the salmonella outbreak, which has now sickened nearly 1,300 North Americans. On Wednesday, Rep. Tim Mahoney, a Democrat from Florida, a big tomato producer in the U.S., introduced legislation that would give the nation’s tomato growers and shippers $100 million to compensate for losses they incurred.

But what if the legislation doesn’t fly? Can the tomato people sue the government on a “takings” theory? How about defamation? For more on this, we’re pleased to link to the Perishable Pundit, a produce Web site published by Jim Prevor, who puts out B-to-B publications for the food industry. On his site, Prevor (not a lawyer) has posted an interview with Chicago law prof Richard Epstein, author of the seminal “Takings: Private Property and the Power of Eminent Domain.”

Professor Epstein says, quite simply, that, due in part to sovereign immunity, there are no examples of restitution for these kinds of government decisions. Yet, he seemed to give some credence to a defamation theory, based potentially on the the FDA’s “Import Alerts.”

Full post as published by Law Blog - WSJ.com on July 25, 2008 (boomark / email).