(June 13, 4:44 p.m.) After the Food and Drug Administration advised consumers nationwide not to eat roma, red plum and round red tomatoes unless they were sourced from approved areas, many restaurants and retailers pulled the products from their shelves and menus.

In the aftermath, truckloads of tomatoes were left in limbo.

Larry Meuers of Naples, Fla.-based Meuers Law Firm PL said June 12 he already had been contacted by people representing all parts of the supply chain who were trying to sort out the financial mess created by the outbreak.

“The issue is who bears the risk of a consumer advisory,” he said. “It’s the person who has the title to the product. If a title transfers before a consumer advisory, the person holding the title has to pay for it.”

Meuers said that in an f.o.b. sale, title is transferred when product is loaded on a truck, so if the advisory was issued during transit the buyer still would be responsible for payment.

In a delivered sale, title transfers when product is received and accepted by a buyer, he said.

The Packer has learned of at least one wholesaler that suspended payments to all its tomato suppliers after the FDA expanded its consumer advisory nationwide June 7.

Trapped tomatoes

“I’m sure there are going to be tomatoes in the supply chain that are trapped, and there will be questions to answer,” said Jesse Driskill, president of the Fresh Produce Association of the Americas, Nogales, Ariz. “That’s going to be either a PACA deal or a question of how much do you value your customers.”

Meuers said that after the E. coli outbreak linked to fresh spinach in 2006, many buyers and sellers with long-term relationships were able to negotiate settlements without filing Perishable Agricultural Commodities Act complaints.

“You’re not going to bite the hand that feeds you,” Meuers said. “There are a couple of lingering disputes, but for the most part people worked that out well.”

Meuers said that might not be the case this time because tomatoes are a higher-volume item than spinach, and there are more growing areas and shippers involved.

“I bet the dollar amount is much higher,” he said. “There’s the potential for a lot of cases.”

Bigger picture

Meuers said he hopes buyers and sellers will find a way to amicably settle any disputes resulting from the outbreak.

“This is a huge disaster,” he said. “It would be nice if people could set aside their personal concerns and do what’s best for the industry. These people need each other. The real disaster would be if people don’t start eating tomatoes again, and they don’t put them back on the menus. That’s the big picture here.”

The U.S. Department of Agriculture’s PACA branch did not respond to an interview request before deadline.