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Erroneous Salmonella Warning Not 'a Taking' Federal Cir. Affirms

By Jonathan R. Tung, Esq. on November 01, 2015 | Last updated on March 21, 2019

Under the Takings Clause, the government is not allowed to take individual property for the benefit of the public without just compensation. What constitutes "a taking" has been the subject of debate since the very beginning ...

The Federal Circuit just affirmed a lower District court's decision that a salmonella warning does not amount to a government "taking." The lawyers who represented the growers in this case were really reaching on this one. It's a fine example of creative advocacy.

Erroneous Salmonella Outbreak

Certain rules have been well settled as a "taking." Any physical invasion of your land by the government? That's a taking. A government regulation that essentially wipes out all economic value of your land? That's a taking.

What about the erroneous salmonella outbreak?

Growers from southern states stretching from South Carolina to Georgia originally brought a suit in 2014 alleging that the FDA's erroneous warnings of salmonella outbreak in produce essentially killed demand for their crop which was left to freeze on vines. The growers alleged that the warning advisory was a form of regulatory taking that wiped out the value of their entire crop.

The Grower's Arguments Rejected

Judge Bush rejected the grower's arguments that the government and public derived a benefit from the alleged taking -- a requisite element in any takings finding. More importantly, Judge Bush found that the salmonella warning, although causally linked to the loss of the tomato crop, did not have a "legal effect on the plaintiff's property interests," such as a quarantine or recall.

In other words, plaintiffs still owned the withering tomatoes. And so long as the government doesn't touch your fruit, you're out of luck.

Toe-May-Toe, Toe-Mah-Toe

Predictably, growers countered that the legal effects should not be considered but the real practical consequences of the government action. At that point, the Federal Circuit Court played some sleight of hand with the quote "[t]he fact that the market chooses to incorporate all available information, without more, cannot form the basis of a regulatory takings claim."

That is true, and applying the law otherwise would lead to absurd results. Still, one can't help but feel as if the appellate court indulged in a little "Guns don't kill people: People kill people" deflection.

Fortunately, the court advised the growers to petition Congress if they want future relief from substantially similar facts in the future.

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