Tomato growers say eminent domain applies to 2008 cropTomato growers are suing the federal government for $40 million in losses in 2008 when the Food and Drug Administration erroneously blamed tomatoes for a salmonella outbreak later linked to hot peppers from Mexico.

Florida attorney Frank Baker filed the suit July 29 in the U.S. Court of Federal Claims, Washington D.C., which is the only U.S. court with jurisdiction in cases involving the Constitution"s Fifth Amendment "takings clause."

The clause is best known as the eminent domain clause, which requires government to pay fair compensation when taking property for public use. However, the property doesn"t have to be used by the public. Rather, it must be used or disposed of in such a manner as to benefit the public welfare or public interest.

Baker said Aug. 2 that the tomato growers from seven states are also seeking class action status. They want reimbursement for all U.S. tomato growers who suffered losses from the 2008 spring crop because warnings from the FDA cautioned consumers to not eat tomatoes from certain regions.

Officials with the FDA did not immediately respond to calls for comment. Baker said the growers are not technically suing the FDA, rather they are suing the federal government. The Justice Department will appoint an attorney to handle the case.

Reggie Brown, manager of the Florida Tomato Exchange, is not involved in the case, but he said there is no doubt the industry suffered great losses because of the FDA"s warning in 2008.

"We have continued to feel the losses not only in dollars but in decreased public consumption of tomatoes since 2008," Brown said.

Grower Paul Graves Williams, owner of High Hope Farms with operations in Florida and Georgia, agreed with Brown. He is seeking $4.7 million in the case.

"First we tried to get our legislators to do something, but after a year it was apparent that wasn"t going any place," Williams said.

"We were packing 1.3 million to 1.4 million boxes before (the FDA warning). But we"ve only been able to come back up to about half that volume since 2008 because the consumer demand just isn"t there."

Williams said after it was announced that hot peppers from Mexico were the actual cause of the outbreak, the FDA sent investigators to his operations three times.

"That fall I got a visit from the local FDA people who did an audit. The next week the regional FDA people came and did the same thing. Then the next week FDA people from their (national) headquarters came and did the same audit with the same forms. None of them found anything," Williams said.

According to the lawsuit, retailers and foodservice operators canceled orders when the FDA issued the warnings during the summer of 2008. Growers contend that tomato prices dropped from $18-$19 to $4 per box, with some growers saying they had to sell their 2008 spring tomato crop for as low as 50 cents per box.

The grower plaintiffs in addition to Williams: SK Enterprises of North Florida Inc., Butler Farms Inc., Two Feathers Farms Inc., Quality Produce LLC, Dan Jones, Circle C Produce LLC, Juniper Tomato Growers Inc., JWM Farms LLC, Jackson Farms, Flowers Farms LLC, Patterson Farm Inc., Hopkins Farms LLC, Mobley Greenhouse Investments LLC, Gregory Enterprises LLC, Townsend Brothers Farms Inc. and Murray Farms.

Two other cases were filed in recent years in South Carolina by tomato growers seeking reimbursement. Those cases included counts related to the Fifth Amendment "taking clause," but those counts were thrown out because they are not within the regular federal courts" jurisdictions. The two cases are still pending.

Overall, the tomato industry in Florida estimated total losses at $600 million, according to the new lawsuit. The industry in Georgia estimated tomato growers lost $100 million.

Baker said the Court of Federal Claims generally moves a little quicker than other courts in the federal system.

"A judge has already been assigned, as has an ADR (Alternative Dispute Resolution) coordinator," Baker said Aug. 2.

The U.S. had not yet filed a response to the tomato growers" complaint as of Aug. 2.