Personal Injury Law

Government Assistance for Rotten Tomatoes?

By Kenneth Odza

I recently received a call from a reporter about legislation introduced by Representative Tim Mahoney (D-Fl), that would provide “emergency assistance to growers and first handlers of tomatoes.”  The text of the bill, HR 6581, as referred to the House Agriculture Committee reads as follows:

SECTION 1. EMERGENCY ASSISTANCE FOR GROWERS AND FIRST HANDLERS OF TOMATOES.

(a) Emergency Assistance - There is hereby appropriated to the Secretary of Agriculture $100,000,000, to be available until expended, to make payments to growers and first handlers, as defined by the Secretary, of fresh tomatoes that experienced crop or market losses, or both, as a result of the Food and Drug Administration Public Health Advisory issued on June 7, 2008.

(b) Payment Amount - The amount of the payment made to a grower or first handler under this section shall not exceed 75  percent of the greater of--

(1) the value of the unmarketed tomatoes; and

(2) the actual loss incurred by the grower or handler.

The reporter asked whether those intended to receive financial assistance under the bill would be compensated some other way, such as insurance payments. She also questioned the fairness of this legislation.

The answer to the first question—will producers receive insurance payments—is most likely no. Some producers and sellers maintain recall insurance (or perhaps some form of business interruption insurance). As discussed previously in this blog, recall insurance may not cover events that are not “recalls.” In this case, FDA never requested a recall. Even for forms of recall insurance that may offer coverage for events other than a recall, insurers may argue against coverage because it turns out that there is no evidence that tomatoes were the culprit of the Salmonella Saintpaul outbreak. The bottom line is that few, if any, producers or sellers may receive insurance payments for their business losses (estimated to be in the hundreds of millions of dollars).

Although many “fault” FDA, tomatoes have been linked to previous outbreaks. FDA’s warning about tomatoes was the food equivalent of rounding-up the usual suspects.
 

Yet, government relief may still be justified and, therefore "fair."  Events leading to the losses suffered by producers and sellers (many of whom are small businesses) were fortuitous and beyond their control.  While relief may not be justified because of some "fault" by the federal government, government relief may be justified as “disaster relief.”  If relief is justified for agriculture wiped out by floods or other acts of God, why is not fair for those same farmers and producers to be compensated for this kind of disaster?
 

Full post as published by Food Liability Law Blog on August 05, 2008 (boomark / email).