Keep Food Legal Foundation filed an amicus curiae (or friend of the court) brief this week in federal court in an important appellate case that centers on the federal government's wrongful taking of the assets of Florida tomato growers in 2008. The case, DiMare Fresh, Inc. et al. v. United States, now before the United States Court of Appeals for the Federal Circuit, where we filed the amicus brief, pits a host of Florida tomato growers against the federal government.
The case arose after the FDA issued a warning to U.S. consumers in 2008, urging them not to buy Florida tomatoes. The agency claimed the tomatoes were responsible for a widespread outbreak of foodborne illness. But the agency had its facts wrong. It turns out tomatoes were never the cause of any illnesses, and that hot peppers grown in Mexico were entirely to blame for the outbreak.
The damage the FDA warning caused to Florida tomato growers was enormous. All told, the FDA's erroneous warning cost Florida tomato growers hundreds of millions of dollars in losses.
But a lower federal court ruled last year in favor of the federal government.
"The ruling unsettles numerous growers, who collectively lost several hundred million dollars following FDA food safety warnings in 2008 that proved erroneous," one report declared in the wake of the lower ruling last year by the U.S. Court of Federal Claims. "The ruling also curtails other growers tempted to base similar challenges on the constitutional requirement that the government pay compensation for taking property."
That constitutional requirement is the Takings Clause, an integral part of the Constitution's Fifth Amendment. The Takings Clause, as we describe in our brief, states government may only take private property for "public use," and requires the government to provide owners whose property is taken for public use with "just compensation."
Keep Food Legal Foundation filed the amicus brief jointly with its executive director Baylen Linnekin, who wrote the brief, in support of DiMare Fresh and its co-plaintiffs. The brief describes how the origins of the Takings Clause go back to Magna Carta (Britain's charter of rights, authored in 1215) and a 1606 English court case involving the food preservative saltpeter. As we describe, in both Magna Cara and the Saltpeter Case--as well as in the first American protection against government takings, the Massachusetts Body of Liberties, from 1641--limitations on government takings of food and requirements of compensation in the event of such takings were central to the development of takings law. Simply put, there would likely be no Takings Clause were it not for protections of the rights of property owners against government takings of food. As we describe in our brief, the development of American thinking on takings continued through the 1760s, when British laws began to target colonists' food for seizure and consumption, and coalesced during the American Revolution, when British troops seized colonists' food without compensation.
The history we describe to the court places food at the very heart of the origins of the Takings Clause. Such origins are often key, as we note, in helping courts to determine the proper interpretation of fundamental rights. It's for that reason that our amicus brief urges the court to "grant the full weight of the Takings Clause [in this case] in order to protect the fundamental rights of producers and consumers of food alike."
To the best of our knowledge, constitutional scholars have only hinted previously at the essential links we describe between food and the Takings Clause. Prof. Richard Epstein, for example, in his seminal 1985 work Takings, writes that "[t]he dominant motivation for the clause may have been the taking of food and supplies during time of war for the support of government troops."
While the theory that a "taking" arose in the FDA tomato case--due to the fact the federal government's improper warning to consumers caused producers to lose money and property--is relatively novel, it's not without precedent. Just this month, a court in Wales awarded a plaintiff £9,000,000 (roughly $13.5 million USD) after a typo by a government office there wrongly informed creditors that a 124-year-old business had gone bankrupt. The typo caused the business's creditors to pull all of their orders with the company and--in a cruel twist--actually caused the otherwise-vibrant engineering business, which had 250 employees, to go bankrupt. The court ordered the government to pay the firm £9 million because of its error.
Though the DiMare Tomato case is important on its own merits, it has gained added importance in light of the U.S. Supreme Court's decision last week to revisit the case of Horne v. USDA. In that case, a family that markets raisins sued the USDA to force the agency to compensate the family after the USDA forced it (along with raisin handlers around the country) to turn over cash or almost half their raisin crop to the agency in return for the purported privilege of handling raisins. Keep Food Legal Foundation anticipates filing an amicus brief in the Horne case in support of the Horne family.
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