United States Court of Appeals 

for the Federal Circuit ______________________ 

DIMARE FRESH, INC., DIMARE RUSKIN, INC.,

DIMARE JOHNS ISLAND, INC., BUTLER FARMS, 

INC., CIRCLE C PRODUCE, LLC, FLOWERS 

FARMS, LLC, GREGORY ENTERPRISES, LLC, 

HIGH HOPE FARMS, LLC, HOPKINS FARMS, LLC, 

FRED JACKSON, DBA JACKSON FARMS, DAN 

JONES, JUNIPER TOMATO GROWERS, INC., JWM

FARMS, LLC, MOBLEY GREENHOUSE 

INVESTMENTS, LLC, DALE MURRAY, GREG 

MURRAY, DBA MURRAY FARMS, PATTERSON 

FARM, INC., QUALITY PRODUCE, LLC, SK 

ENTERPRISES OF NORTH FLORIDA, INC., 

TOWNSEND BROTHERS FARMS, INC., TWO 

FEATHERS FARMS, INC., GARGIULO, INC., DMB 

PACKING CORP., ARTESIAN FARMS 

INCORPORATED, KUZZENS, INC., FARM OP, INC., 

WEST COAST TOMATO, LLC, MICHAEL BOREK 

FARMS, LLC, EAST COAST BROKER’S AND 

PACKERS, INC., A FLORIDA CORPORATION, C/O 

GERARD A. MCHALE, JR. AS TRUSTEE, DIEHL 

AND LEE FARMS, FRANK DIEHL, DBA FRANK 

DIEHL FARMS, ORA DIEHL,

Plaintiffs-Appellants

v.

UNITED STATES,

Defendant-Appellee

______________________ 

2015-5006

______________________ 
2 DIMARE FRESH, INC. v. UNITED STATES

Appeal from the United States Court of Federal 

Claims in No. 1:13-cv-00519-LJB, Senior Judge Lynn J. 

Bush.

______________________ 

Decided: October 28, 2015

______________________ 

M. STEPHEN TURNER, Broad & Cassel, Tallahassee, 

FL, argued for plaintiffs-appellants. Also represented by

DAVID K. MILLER. 

 ERIC LAUFGRABEN, Commercial Litigation Branch, 

Civil Division, United States Department of Justice,

Washington, DC, argued for defendant-appellee. Also 

represented by BENJAMIN C. MIZER, ROBERT E.

KIRSCHMAN, JR., FRANKLIN E. WHITE, JR.; DARETIA 

HAWKINS, Office of the General Counsel, United States 

Department of Health and Human Services, Washington, 

DC.

 WILLIAM S. BILENKY, MansonBolves, P.A., Tampa, FL, 

for amici curiae The Florida Tomato Exchange, The 

Florida Fruit and Vegetable Association.

 BAYLEN LINNEKIN, North Bethesda, MD, for amici 

curiae Keep Food Legal Foundation, Baylen Linnekin.

______________________ 

Before WALLACH, BRYSON, and HUGHES, Circuit Judges.

WALLACH, Circuit Judge. 

Plaintiffs-Appellants (“Tomato Producers” or “Appellants”) appeal the decision of the United States Court of 

Federal Claims (“Claims Court”) dismissing their Amended Complaint pursuant to Rule 12(b)(6) of the Rules of the 

United States Court of Federal Claims (“RCFC”). The 
DIMARE FRESH, INC. v. UNITED STATES 3

Claims Court dismissed the Amended Complaint on the 

ground that press releases issued by the Food and Drug 

Administration (“FDA” or “Government”), which warned 

consumers of a possible link between Appellants’ tomatoes and an outbreak of Salmonella Saintpaul (“salmonella”), did not effect a regulatory taking. See Dimare Fresh, 

Inc. v. United States, 118 Fed. Cl. 455 (2014). For the 

reasons set forth below, we affirm. 

I. BACKGROUND

A. FDA Press Releases

Between April 23 and June 1, 2008, there were fiftyseven reported cases of salmonellosis, an infection caused 

by the salmonella bacteria. Subsequently, the FDA, 

federal and state agencies, and food industry trade associations began an investigation to determine the source of 

the contamination. On June 3, 2008, the FDA issued a 

press release alerting consumers that the salmonella 

outbreak “appears to be linked” to the consumption of 

“raw red plum, red Roma, or round red tomatoes.”1 J.A. 

1 The warning stated in relevant part: 

The [FDA] is alerting consumers in New Mexico 

and Texas that a salmonellosis outbreak appears 

to be linked to consumption of certain types of raw 

red tomatoes and products containing raw red tomatoes. . . . 

The specific type and source of tomatoes are under 

investigation. However, preliminary data suggest 

that raw red plum, red Roma, or round red tomatoes are the cause. At this time, consumers in 

New Mexico and Texas should limit their tomato 

consumption to tomatoes that have not been implicated in the outbreak. 

J.A. 34.

 
4 DIMARE FRESH, INC. v. UNITED STATES

34. In that press release, the FDA also stated that “the 

source of the contaminated tomatoes may be limited to a 

single grower or packer or tomatoes from a specific geographic area” and that it was working “diligently . . . to 

quickly determine the source and type of the contaminated tomatoes.” J.A. 34. 

On June 7, 2008, the FDA released a second press release, informing the public that during the course of its 

investigation, it used “traceback2 and other distribution 

pattern information” to identify specific geographic 

sources where tomatoes were safe to consume.3 (footnote 

added). J.A. 35. 

2 According to the FDA: 

A traceback investigation is the method used to 

determine and document the distribution and 

production chain, and the source(s) of a product

that has been implicated in a foodborne illness investigation. 

Guide to Traceback of Fresh Fruits and Vegetables Implicated in Epidemological Investigations, FDA, 

http://www.fda.gov/ICECI/Inspections/InspectionGuides/u

cm109510.htm (last visited Aug. 13, 2015). 

3 The warning stated in relevant part: 

On June 5, using traceback and other distribution 

pattern information, FDA published a list of 

states, territories, and countries where tomatoes 

are grown and harvested which have not been associated with this outbreak. This updated list includes: Arkansas, California, Georgia, Hawaii, 

North Carolina, South Carolina, Tennessee, Texas, Belgium, Canada, Dominican Republic, Guatemala, Israel, Netherlands, and Puerto Rico. . . . 

 
DIMARE FRESH, INC. v. UNITED STATES 5

On June 13, 2008, the FDA conducted a media briefing through its then–Associate Commissioner for Foods, 

Dr. David Acheson. Dr. Acheson stated the FDA suspected the contaminated tomatoes had been shipped from 

Florida or Mexico, and red plum, red Roma, and red round 

tomatoes were “incriminated with the outbreak.” J.A. 40. 

Dr. Acheson, however, emphasized that the FDA had only 

issued a warning to consumers, and had not requested 

that any producers voluntarily recall tomatoes because 

the FDA had not “identified the particular source” of the 

salmonella outbreak. J.A. 48. Dr. Acheson also stated 

the FDA was still in the process of conducting an “ongoing 

investigation,” and therefore the information gathered 

thus far was to remain “confidential.” J.A. 42. 

On July 17, 2008, the FDA issued a third press release announcing that “fresh tomatoes now available in 

the domestic market are not associated with the current 

outbreak.” J.A. 62. “As a result, the agency [] remov[ed]

its June 7 warning against eating certain types of red raw 

tomatoes.” J.A. 62. Although the link between the salmonella outbreak and the Appellants’ tomatoes was 

eventually disproved, the Tomato Producers allege that 

all or almost all of the value of the perishable tomatoes 

was destroyed due to a decrease in market demand for the 

Appellants’ tomatoes. Appellants’ Br. 19. 

B. The Tomato Producers’ Amended Complaint

FDA recommends that retailers, restaurateurs, 

and food service operators not offer for sale and 

service raw red Roma, raw red plum, and raw red 

round tomatoes unless they are from the sources 

listed above. Cherry tomatoes, grape tomatoes, 

and tomatoes sold with vine still attached, may 

continue to be offered from any source. 

J.A. 35. 

 
6 DIMARE FRESH, INC. v. UNITED STATES

The Tomato Producers are “growers, packers, and 

shippers of tomatoes in Florida and South Georgia.” 

Dimare, 118 Fed. Cl. at 456 (internal quotation and 

citation marks). The Tomato Producers initially filed this 

suit as a putative class action on July 29, 2013. Supplemental Appendix 1.4 Upon the Government’s motion to 

dismiss the Complaint, the Tomato Producers filed an 

Amended Complaint on April 16, 2014, electing to remove 

the class allegations and name additional parties to the 

suit. 

In the Amended Complaint, the Tomato Producers allege the June 3 and June 7, 2008 FDA press releases were 

harmful to their spring 2008 sales and that “[t]here was 

no practical or legal opportunity to contest, controvert or 

prevent the effect of the warnings.” J.A. 31. The Tomato 

Producers also allege they “had [a] reasonable investment 

backed expectation to realize the market value of their 

tomatoes, but as a result of [the] FDA’s regulatory warnings, all economic value was lost due to the collapse of the 

market for their tomatoes.” J.A. 31. Finally, the Tomato 

Producers assert that the “only value of the tomatoes was 

prompt sale in bulk” and they “had a property right in 

their healthy tomatoes, specifically the right to market 

and sell them as healthy food.” J.A. 31. As a result, the 

Tomato Producers claim that their “property right was 

effectively rendered valueless by the FDA’s actions.” J.A. 

31. 

Although the Tomato Producers acknowledged they 

were not mandated to quarantine their crops or prohibited from exercising their right to market or sell the tomatoes, they nonetheless allege that because they “had no 

practical alternative to preserve their tomatoes,” J.A. 31, 

4 Pursuant to Federal Circuit Rule 30(f), the Government attached a supplemental appendix to its brief. 

Appellee’s Br. 5 n.3. 

 
DIMARE FRESH, INC. v. UNITED STATES 7

the FDA press releases “had the same burdensome effect 

as quarantining or prohibiting sale of [their] tomato crop.” 

J.A. 30. Accordingly, the Tomato Producers allege that 

due to its practical effect on the market demand for 

tomatoes, the FDA’s issuance of the press releases must 

be recognized as a “regulatory taking of the [Tomato 

Producers’] perishable tomatoes.” J.A. 32. 

C. Procedural Posture and Jurisdiction 

On May 5, 2014, the Government moved to dismiss 

the Tomato Producers’ Amended Complaint pursuant to 

RCFC 12(b)(6) for failure to state a claim upon which 

relief can be granted. On September 18, 2014, the Claims 

Court granted the Government’s motion and entered a 

judgment dismissing the Amended Complaint. On October 9, 2014, the Tomato Producers filed a timely notice of 

appeal. This court has jurisdiction under 28 U.S.C. § 

1295(a)(3) (2012). 

I. DISCUSSION

A. The General Principle Articulated by the Claims 

Court Is Not Supported by Our Takings Jurisprudence

Whether the Claims Court properly dismissed a 

“complaint for failure to state a claim upon which relief 

could be granted is an issue of law which we review de 

novo.” Cambridge v. United States, 558 F.3d 1331, 1335 

(Fed. Cir. 2009) (citation omitted). To avoid dismissal for 

failure to state a claim, a complaint must allege facts 

“plausibly suggesting (not merely consistent with)” a 

showing of entitlement to relief. Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 557 (2007); see also Cambridge, 

558 F.3d at 1335. At this point in the proceedings, we 

accept the Tomato Producers’ well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 

Although we primarily consider the allegations in a 

complaint, we are “not limited to the four corners of the 

complaint.” 5B Charles Alan Wright & Arthur R. Miller, 
8 DIMARE FRESH, INC. v. UNITED STATES

Federal Practice and Procedure § 1357 (3d ed. 2004). We 

may also look to “matters incorporated by reference or 

integral to the claim, items subject to judicial notice, [and] 

matters of public record.” Id. 

The Claims Court dismissed the Tomato Producers’

Amended Complaint because it concluded their “regulatory takings claims are not plausible.” Dimare, 118 Fed. 

Cl. at 459 (capitalization modified). In rendering this 

decision, the Claims Court specifically identified three of 

its cases from which it discerned the general principle 

that “[a] regulatory takings claim is not plausible and 

cannot proceed when the government action at issue has 

no legal effect on the plaintiff’s property interest.” Id. at 

460 (citing A-1 Cigarette Vending, Inc. v. United States, 49 

Fed. Cl. 345 (2001), aff’d sub nom. Brubaker Amusement 

Co. v. United States, 304 F.3d 1349 (Fed. Cir. 2002); 

Flowers Mill Assocs. v. United States, 23 Cl. Ct. 182 

(1991); NBH Land Co. v. United States, 576 F.2d 317 (Ct. 

Cl. 1978)). The bright-line rule articulated by the Claims 

Court does not reflect applicable precedent. 

The Takings Clause of the Fifth Amendment guarantees just compensation when private property is “taken” 

for public use. U.S. Const. amend. V. “It protects ‘private 

property’ without any distinction between different 

types.” Horne v. Dep’t of Agric., 135 S. Ct. 2419, 2426 

(2015). The “classic taking [is one] in which the government directly appropriates private property for its own 

use.” Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l 

Planning Agency, 535 U.S. 302, 324 (2002) (brackets and 

internal quotation marks omitted). The Tomato Producers do not allege, and their Amended Complaint does not 

raise an allegation of, a “direct government appropriation 

or physical invasion of [their] private property.” Lingle v. 

Chevron U.S.A. Inc., 544 U.S. 528, 537 (2005); see also, 

e.g., United States v. Pewee Coal Co., 341 U.S. 114 (1951) 

(government seizure and operation of private coal mine); 

United States v. Gen. Motors Corp., 323 U.S. 373 (1945) 
DIMARE FRESH, INC. v. UNITED STATES 9

(government occupation of private warehouse). Therefore, 

the Tomato Producers’ Amended Complaint could only be 

read to support a regulatory takings claim. 

Before the Supreme Court’s decision in Pennsylvania 

Coal Co. v. Mahon, 260 U.S. 393 (1922), “the Takings 

Clause was understood to provide protection only against 

a direct appropriation of property––personal or real. 

Pennsylvania Coal expanded the protection of the Takings 

Clause, holding that compensation was also required for a 

‘regulatory taking’––a restriction on the use of property 

that went ‘too far.’” Horne, 135 S. Ct. at 2427 (citing Pa. 

Coal, 260 U.S. at 415). 

The Supreme Court has treated certain regulatory actions as “categorical” takings. A categorical taking occurs 

when regulations “compel the property owner to suffer a 

physical invasion of his property” or prohibit “all economically beneficial or productive use.” Lucas v. S.C. Coastal 

Council, 505 U.S. 1003, 1015 (1992) (internal quotation 

marks omitted). However, beyond those categories, the 

Supreme Court has not “develop[ed] any ‘set formula’ for 

determining when ‘justice and fairness’ require that 

economic injuries caused by public action be compensated 

by the government, rather than remain disproportionately 

concentrated on a few persons.” Penn Cent. Transp. Co. v. 

City of New York, 438 U.S. 104, 124 (1978). Instead, it

has relied on “ad hoc, factual inquiries into the circumstances of each particular case.” Connolly v. Pension 

Benefit Guar. Corp., 475 U.S. 211, 224 (1986) (citations 

omitted). 

In engaging in these ad hoc, factual inquires, the Supreme Court has identified several factors bearing particular significance. In Penn Central, the Supreme Court 

considered three factors: (1) “[t]he economic impact of the 

regulation on the claimant”; (2) “the extent to which the 

regulation has interfered with distinct investment-backed 

expectations”; and (3) “the character of the government 
10 DIMARE FRESH, INC. v. UNITED STATES

action.” Penn Cent. Transp. Co., 438 U.S. at 124; accord

Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1005 (1984); 

PruneYard Shopping Ctr. v. Robbins, 447 U.S. 74, 82–83

(1980). 

The general principle proffered by the Claims Court 

does not accord with Supreme Court precedent. The 

Supreme Court’s “Takings Clause jurisprudence has 

generally eschewed ‘magic formula[s]’ and has ‘recognized 

few invariable rules.’” Horne, 135 S. Ct. at 2437 (Sotomayor, J., dissenting) (emphasis added) (quoting Ark. 

Game & Fish Comm’n v. United States, 133 S. Ct. 511, 

518 (2012)). The general rule that the government action 

must have a “legal effect” on the property interest is not 

one of those rules. 

In urging courts to consider the “character of the government action,” the Supreme Court in Penn Central

recognized government action may impact property in 

myriad ways and what is important is the nature or 

substance of the government’s action, as opposed to the 

precise form it may take. Penn Cent. Transp. Co., 438 

U.S. at 124. Unlike takings cases concerning the physical 

appropriation or government condemnation of property, 

the Supreme Court has abjured the application of rigid 

rules in its regulatory takings analysis. See Goldblatt v. 

Town of Hempstead, 369 U.S. 590, 594 (1962) (“There is 

no set formula to determine where regulation ends and 

taking begins.”). 

Moreover, the three cases cited by the Claims Court to 

support its general principle can be distinguished on the 

basis that, contrary to the case before this court, the 

administrative agency lacked the authority to regulate 

the property it “appropriated.” In A-1 Cigarette Vending, 

owners and operators of tobacco vending machines filed 

complaints against the United States, alleging the FDA 

effected a temporary regulatory taking by promulgating 

regulations, subsequently invalidated, which banned the 
DIMARE FRESH, INC. v. UNITED STATES 11

sale of cigarettes and smokeless tobacco from most vending machines. 49 Fed. Cl. at 346–47. In rejecting the 

tobacco vending machine owners’ complaint, the Claims 

Court determined that because the Supreme Court in 

FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 

(2000), ruled that the Federal Food, Drug, and Cosmetic 

Act did not confer authority to the FDA to regulate tobacco, tobacco vending machine owners could not sound a 

temporary regulatory takings claim. A-1 Cigarette Vending, 49 Fed. Cl. at 364 (The FDA “lack[ed] [the] authority 

to regulate tobacco in the first instance”).

Similarly, in Flowers Mill, the Federal Aviation Administration (“FAA”) issued a notice to a landowner, 

stating his proposal to erect a building on land adjacent to 

an airport would constitute hazard to air navigation. 

23 Cl. Ct. at 184. The landowner subsequently alleged a 

regulatory takings claim based on the FAA’s determination. Id. at 183. In rejecting the landowner’s claim, the 

Claims Court found the FAA did not possess the regulatory authority to prohibit the landowner from erecting the 

building. According to the court, the determination was 

“issued by an agency with no power to prohibit or limit 

proposed construction.” Id. at 189. 

Finally, in NBH Land, landowners adjoining a military base filed a takings complaint against the government based on the actions of military officials who 

publicized the intent of army officials to request funds 

from Congress to expand the base. 576 F.2d at 318. The 

disclosure of this information resulted in many persons 

changing their actions with respect to the land, thus 

leading to pecuniary losses for many landowners. Id. The 

Claims Court determined the actions of the military 

officials did not constitute a compensable taking because 

Congress rejected the expansion proposals, and the military officials had no authority to act without approval of 

the proposal. Id. at 318 (“Congress has never given 

affirmative support or recognition of any sort to this 
12 DIMARE FRESH, INC. v. UNITED STATES

project.”). According to the court, the government action 

was “not expressly authorized or directed by Congress [or] 

at least [] a natural consequence of Congressionally 

approved measures.” Id. at 319. 

The decisions in these cases cannot reasonably be extrapolated to justify the general principle proffered by the 

Claims Court. In all three cases, the court denied the 

regulatory takings claims not because the government’s 

action did not have any legal effect, but because the 

agencies had no authority to regulate. An agency’s lack of 

authority to regulate necessarily means its action cannot 

have any legal effect. See A-1 Cigarette Vending, 49 Fed. 

Cl. at 354 (“[A] takings claim cannot arise when an agency acts without congressional authority.”); United States 

v. N. Am. Transp. & Trading Co., 253 U.S. 330, 333 

(1920) (“In order that the government shall be liable it 

must appear that the officer who has physically taken 

possession of the property was duly authorized so to do, 

either directly by Congress or by the official upon whom 

Congress conferred the power.”); Fla. Rock Indus., Inc. v. 

United States, 791 F.2d 893, 898 (Fed. Cir. 1986); Armijo 

v. United States, 663 F.2d 90, 95 (Ct. Cl. 1981) (If the 

government action is unauthorized, “the acts of the defendant’s officers may be enjoinable, but they do not 

constitute taking effective to vest some kind of title in the 

government and entitlement to just compensation in the 

owner or former owner”). However, the inverse is not 

true. When agencies possess congressional authority to 

regulate, we have recognized that agencies may engage in 

actions suitable for a regulatory takings claim irrespective of the fact that the action does not have any legal 

effect or impose a direct legal obligation on any party. See 

A & D Auto Sales, Inc. v. United States, 748 F.3d 1142, 

1154 (Fed. Cir. 2014) (stating that government action 

absent a “statute, regulation, or direct order” may support 

a regulatory takings claim). 
DIMARE FRESH, INC. v. UNITED STATES 13

In A & D Auto Sales, former franchisees of General 

Motors Corporation and Chrysler LLC brought a regulatory takings claim based on allegations the government 

took their franchise contracts. Id. at 1147. The auto 

dealers alleged that, as a condition of the bailout of these 

companies during the recession and credit crisis of 2008 to 

2009, the government required the auto manufacturers to 

terminate their franchise agreement contracts. Id. In 

determining whether coercive government action could 

effect a regulatory takings claim, we determined that 

“coercion . . . may create takings liability.” Id. at 1154. 

Similarly, in Yuba Goldfields, Inc. v. United States, although there was no statute, regulation, or direct order, 

this court held that the government’s action in sending a 

letter to the alleged holder of a mineral interest in government land, informing him that he had no extraction 

rights and that his dredging or removal activity was 

prohibited, could give rise to a regulatory takings claim. 

723 F.2d 884, 885–86, 891 (Fed. Cir. 1983). Although the 

letter in Yuba was not the product of any statutory or 

regulatory authority, it threatened Mr. Yuba with legal 

recourse had he continued to mine the minerals on the 

land. Id. at 884. In finding that material fact issues 

existed to satisfy a takings claim, we held that the Constitution measures a taking of property not by “what [the]

government said it was doing, or what it later says its 

intent was. . . . What counts is what the government did.”

Id. at 889–90 (emphasis added) (citing Hughes v. Washington, 389 U.S. 290, 298 (1967) (Stewart, J., concurring)). 

Therefore, we reject the general principle proffered by the 

Claims Court because it contravenes this court’s prevailing precedent and unduly narrows the regulatory takings 

jurisprudence. 

B. Tomato Producers’ Amended Complaint Does Not 

Raise a Regulatory Takings Claim

We turn next to whether there has been government 

action sufficient to invoke a regulatory takings analysis 
14 DIMARE FRESH, INC. v. UNITED STATES

under Penn Central. The precise issue is whether the 

FDA’s press releases issued on June 3 and June 7, 2008, 

together with the media briefing held on June 13, 2008,

constitute government action sufficient to effect a regulatory taking. It does not. 

The Tomato Producers argue that the FDA’s authority 

to issue the press releases was an “exercise of [its] regulatory authority.” Appellants’ Br. 18. Although the Tomato 

Producers concede that the public warnings were not a 

“formal order,” they nonetheless assert that the “actions 

had the practical effect” of a formal order because they

“stopp[ed] all sales, purchases, and deliveries.” Id. In the 

present case, the public warnings issued by the FDA via 

the press releases and media briefing, although themselves not a regulation, were based on a regulation promulgated pursuant to 21 U.S.C. § 375(b), which allows the 

FDA to publicize information regarding food, including 

produce, when “in the opinion of the [FDA], imminent 

danger to the health . . . of the consumer” exists. In 

interpreting what constitutes “imminent danger” or 

“hazard” to the public health, the FDA promulgated 21 

C.F.R. § 2.5. Subsection (a) of that provision reads: 

Within the meaning of the Federal Food, Drug, 

and Cosmetic Act an imminent hazard to the public health is considered to exist when the evidence 

is sufficient to show that a product or practice, 

posing a significant threat of danger to health, 

creates a public health situation . . . that should 

be corrected immediately to prevent injury. . . . 

The imminent hazard may be declared at any 

point in the chain of events which may ultimately 

result in harm to the public health. The occurrence of the final anticipated injury is not essential to establish that an imminent hazard of such 

occurrence exists.

21 C.F.R. § 2.5(a). 
DIMARE FRESH, INC. v. UNITED STATES 15

The fact that the FDA’s actions are authorized by a 

regulation promulgated pursuant to the publicity provision in 21 U.S.C. § 375(b) does not support the Tomato 

Producers’ regulatory takings claim. “[A]n administrative 

agency’s power to regulate in the public interest must 

always be grounded in a valid grant of authority from 

Congress.” Brown & Williamson Tobacco, 529 U.S. at 161 

(emphasis added). For the purpose of establishing a 

regulatory takings claim, what matters is whether the 

FDA’s actions––the issuance of the press releases and 

media briefing––resulted in a taking of the Tomato Producers’ property. 

The Tomato Producers point to no taking of their 

property. What the Tomato Producers allege is that the 

FDA’s June 2008 press releases and media briefing was 

government action sufficient to effect a regulatory taking. 

Appellant’s Br. 4–9. However, it appears the Tomato 

Producers’ regulatory takings claim is conditioned on the 

fact that the FDA was incorrect in its initial determination that the tomatoes were linked to the salmonella 

outbreak. Whether the FDA was correct or not in taking 

an action is academic to a regulatory takings analysis. 

See Del-Rio Drilling Programs, Inc. v. United States, 146 

F.3d 1358, 1362 (Fed. Cir. 1998) (“[I]f the actions of an 

officer do not conflict with the terms of his valid statutory 

authority, then they are the actions of the sovereign, 

whether or not they are tortious under general law.”) 

(citing Larson v. Domestic & Foreign Commerce Corp., 

337 U.S. 682 (1949)). 

The problem with the Tomato Producers’ contention is 

that it seeks to weave a regulatory takings claim, without 

more, simply out of the fact that the FDA’s press releases 

and media briefing impacted market demand for their 

produce. However, any government action such as a 

warning or report which provides information about a 

good or service is bound to impact consumer demand in

the relevant market. Dissemination of information is 
16 DIMARE FRESH, INC. v. UNITED STATES

critical to the adequate functioning of efficient markets. 

The fact that the market chooses to incorporate all available information, without more, cannot form the basis of a 

regulatory takings claim. See Kirby Forest Indus., Inc. v. 

United States, 467 U.S. 1, 15 (1984) (“[I]mpairment of the 

market value of [] property incident to otherwise legitimate government action ordinarily does not result in a 

taking. . . . At least in the absence of an interference 

with an owner’s legal right to dispose of his [property], 

even a substantial reduction of the attractiveness of the 

property to potential purchasers does not entitle the 

owner to compensation under the Fifth Amendment.”); A1 Cigarette Vending, 49 Fed. Cl. at 357 (“The risks of the 

market prior to an actual taking are traditionally borne 

by the owner of the property, as ‘incidents of ownership’ 

and accordingly the reactions of third parties cannot be 

considered as effecting a taking.”) (citing Danforth v. 

United States, 308 U.S. 271, 285 (1939)). 

Unlike A&D Auto Sales and Yuba, in the case before 

us, there is not a prohibition or any coercive government 

action restricting the Tomato Producers from selling, 

disposing, or using their produce however they desire. 

What Tomato Producers effectively request is for this 

court to find that government action devoid of coercion, 

legal threat, regulatory restriction, or any binding obligation may effect a regulatory taking. We will not. 

Although the FDA’s press releases and media briefing

adversely impacted the market demand for the Tomato 

Producers’ tomatoes, such actions are different from one

prohibiting supply, such as an FDA directive instructing 

the Tomato Producers not to sell their tomatoes. The 

latter forecloses the market entirely to the supplier. 

Here, the FDA’s public warnings did not restrict the 

Tomato Producers from selling their produce, nor did it 

place any restriction on how they may use or dispose their 

tomatoes. See Andrus v. Allard, 444 U.S. 51, 66 (1979) 

(“The regulations challenged here do not compel the 
DIMARE FRESH, INC. v. UNITED STATES 17

surrender of the artifacts, and there is no physical invasion or restraint upon them.”). Therefore, the Tomato 

Producers do not point to any stick in their bundle of 

property rights that was removed by the FDA’s press 

releases and media briefing. See id. (“[I]t is crucial [to a 

determination of no regulatory taking] that [Appellants]

retain the rights to possess and transport their property, 

and to donate or devise the[ir] pro[perty].”). Acceptance of 

the Tomato Producers’ contentions would take us far 

afield from the primary purpose of our takings jurisprudence––to determine whether a “restriction upon the use 

of property . . . deprives the owner of some right theretofore enjoyed.” Pa. Coal, 260 U.S. at 417 (Brandeis, J., 

dissenting). The right previously enjoyed by the Tomato 

Producers––their ability to supply their tomatoes in the 

relevant market––has not changed. 

Furthermore this court has recognized that in the 

context of the protection of public health and safety, “the 

private interest has traditionally been most confined and 

governments are given the greatest leeway to act without 

the need to compensate those affected by their actions.” 

Rose Acre Farms Inc. v. United States, 559 F.3d 1260, 

1281–82 (Fed. Cir. 2009) (citing Jacob Ruppert, Inc. v. 

Caffey, 251 U.S. 264, 303 (1920); Purity Extract & Tonic 

Co. v. Lynch, 226 U.S. 192 (1912); N. Am. Cold Storage 

Co. v. City of Chicago, 211 U.S. 306, 315 (1908)). Many 

federal statutes concerning the protection of the public 

health and safety expressly authorize federal agencies to

disseminate information or publicize reports similar to 

the press releases and media briefing conducted by the 

FDA under the publicity provision of 21 U.S.C. § 375(b). 

See, e.g., 42 U.S.C. § 242o(b), Pub. L. No. 95-353, § 310, 88 

Stat. 362 (1974) (authorizing the Secretary of the Health, 

Education and Welfare, now knows as the Health and 

Human Services, to “issue information related to public 

health, in the form of publications or otherwise, for the 

use of the public, and [to] publish weekly reports of health 
18 DIMARE FRESH, INC. v. UNITED STATES

conditions . . . and other pertinent health information for 

the use of persons and institutions concerned with health 

services”); 15 U.S.C. § 1272(b), Pub. L. No. 86-613, § 13, 

74 Stat. 372 (1960) (authorizing the United States Consumer Product Safety Commission to “cause to be disseminated information regarding hazardous substances in 

situations involving, in the opinion of the Commission, 

imminent danger to health”). In accordance with these 

statutes, public warnings, reports or advisories such as 

the FDA press releases and media briefings are frequently employed by administrative agencies. See generally

United States Department of Health and Human Services, The Health Consequences of Smoking––50 Years 

of Progress: A Report of the Surgeon General (2014), 

eral (2014), http://www.surgeongeneral.gov/library/repor

ts/50-years-of-progress/full-report.pdf` (comprehensive 

report chronicling the destructive consequences of fifty

years of tobacco use in the United States); Infant Deaths 

Prompt CSPC Warning About Sling Carriers for Babies, 

United States Consumer Safety Product Commission 

http://www.cpsc.gov/en/Newsroom/News Releases/2010/In

fant-Deaths-Prompt-CPSC-Warning-About-SlingCarriers-for-Babies/ (last visited Aug. 14, 2015) (news 

release detailing the potential suffocation hazards sling 

carriers may pose to babies). 

We are not unsympathetic to the Tomato Producers’ 

predicament and we recognize that the FDA’s actions may 

have inimical consequences on future parties.5 However, 

5 In its July 17, 2008 press release reversing initial 

warnings against eating the Tomato Producers’ tomatoes, 

the FDA stated that it possessed “evidence showing that 

raw jalapeno and raw serrano peppers now available in 

the domestic market may be linked” to the salmonella 

outbreak. J.A. 62. However, on August 28, 2008, similar 

to the warnings concerning Appellants’ tomatoes, the 

 
DIMARE FRESH, INC. v. UNITED STATES 19

to the extent the publicity of adverse information may be 

premature, misleading, incomplete or simply incorrect, 

this issue extends well beyond our regulatory takings 

jurisprudence, and application of it in this instance would 

extend the Takings Clause beyond any recognition or 

practicality. The creation of standards to hold agencies 

accountable in this context should be left to Congress. See

Nathan Cortez, Adverse Publicity by Administrative 

Agencies in the Internet Era, 2011 BYU L. Rev. 1371, 1371 

(arguing that agencies should “retain wide discretion to 

communicate with the public, but should be held accountable if they abuse that discretion”); Ernest Gellhorn, 

Adverse Publicity by Administrative Agencies, 86 Harv. L. 

Rev. 1380, 1384 (1973) (“[L]osses which may result from 

adverse agency publicity directed toward an entire industry are likely to be great, and concentrated public attention heightens the need for carefully conceived and wellarticulated procedures.”).

CONCLUSION

In the instant case, because the Tomato Producers

have failed to raise a regulatory takings claim, we affirm 

the dismissal of the Claims Court. 

For the foregoing reasons, the decision of the Claims 

Court is

AFFIRMED

FDA “lifted its advice to consumers to avoid eating jalapeno and Serrano peppers grown, harvested or packed in 

Mexico.” See Salmonella Saintpaul Outbreak, FDA, http://www.fda.gov/NewsEvents/PublicHealt

hFocus/ucm179116.htm (last visited Aug. 14, 2015).