# United States **Court of Appeals**  **for the Federal Circuit**

______________________ DIMARE FRESH, INC., DIMARE RUSKIN, INC., DIMARE JOHNS ISLAND, INC., BUTLER FARMS, INC., CIRCLE C PRODU CE, LLC, FLOWERS FARMS, LLC, GREGORY ENTERPRISES, LLC, HIGH HOPE FARMS, LLC, HOPKINS FARMS, LLC , FRED JACKSON, DBA JA CKSON FARMS, DAN JONES, JUNIPER TOMAT O GROWERS, INC., JWM FARMS, LLC, MOBLEY G REENHOUSE INVESTMENTS, LLC, DA LE MURRAY, GREG MURRAY, DBA MURRAY FARMS, PATTERSON FARM, INC., QUALITY PRODUCE, LLC, SK ENTERPRISES OF NORTH FLORIDA, INC., TOWNSEND BROTHERS FA RMS, INC., TWO FEATHERS FARMS, INC. , GARGIULO, INC., DM B PACKING CORP., ARTES IAN FARMS INCORPORATED, KUZZEN S, INC., FARM OP, IN C.,

WEST COAST TOMA TO, LLC, MICHAEL BOR EK FARMS, LLC, EAST COA ST BROKER ’ S AND PACKERS, INC., A FLO RIDA CORPORATION, C/ O

GERARD A. MCHALE, JR. AS TRUSTEE, DIEHL AND LEE FARMS, FRANK DIEHL, DBA FRANK DIEHL FARMS, ORA DIE HL, Plaintiffs

- Appellants

v.

UNITED STATES, Defendant -A ppellee

______________________

2015

- 5006

______________________DIMARE FRESH , INC

. v. U NITED S TATES 2

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. S TEP HEN T URNER , Broad & Cassel, Tallahassee, FL, argued for plaintiffs

- appellants. Also represented by D AVID K. M ILLER

.

E RIC L AUFGRABEN , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC , argued for defendant -appellee. Also represented by B ENJAMIN C. M IZER , R OBERT E. K IRSCHMAN , J R ., F RANKLIN E. W HITE , J R .; D ARETIA H AWKINS , Office of the General Counsel, United States Department of Health and Human Service s , Washington, DC.

W ILLIAM S. B ILENKY , MansonBolves, P.A., Tampa, FL, for amici curiae The Florida Tomato Exchange

, The Florida Fruit and Vegetable Association.

B AYLEN L INNEKIN , North Bethesda, MD

, for amici curiae Keep Food Legal Foundation

, Baylen Linnekin.

______________________

Before W ALLACH , B RYSON , and H UGHES , Circuit Judges.

W ALLACH , Circuit Judge

. Plaintiffs

- Appellants (“Tomato Producers” or “ Appe llants ”) appeal the decision of the United States Court of Federal Claim s (“Claims Court”) dismissing their Amen ded C omplaint pursuant to Rule 12(b)(6) of the Rules of the United States Court of Federal Claims (“RCFC”)

. TheDIMARE FRESH , INC

. v. U NITED S TATES 3

Claims Court dismissed the Amended Complaint on the ground that press releases issued by the Food and Drug Administration (“FDA” or “Government ”), which warn ed

consumers of a possible link between Appellants’ tom atoes and an outbreak of Salmonella S aintpaul (“salmone lla”) , d id 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. B ACKGROUND

A. FDA Press Releases
Between April 23 and June 1, 2008, there were fifty

seven reported cases of salmonellosis, an infection caused by the salmo nella bacteria

. Subsequently, the FDA, f

ederal and state agencies, and food industry trade a ss ociations 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 t omatoes. .

. . The specific type and source of tomatoes are under investigation. However, preliminary data suggest that raw red plum, red Roma, or round red tom atoes are the cause. At this time, consumers in New Mexico and Texas should limit their tomato

c onsumption to tomatoes that have not been i mplicated in the outbreak.

J.A. 34.DIMARE FRESH , INC

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34

. In th at press release, the FDA also st at ed that “the source of the contaminated tomatoes may be limited to a single grower or packer or tomatoes from a specific ge ographic area” and that it was working “diligently . . . to quickly determine the source and type of t he contamina ted tomatoes.” J.A. 34.
On June 7, 2008, the FDA released a second press r elease, informing the public that during the course of its investigation, i t used “traceback 2 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 i nvestigation. Guide to Traceback of Fresh Fruits and Veget ables 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 distr i bution pattern information, FDA published a list of states, territories, and countries where tomatoes are grown and harvested which have not been a ssociated with this outbr eak. This updated list i ncludes: Arkansas, Cal i fornia, Georgia, Hawaii, North Carolina, South Carolina, Tennessee, Te xas, Belgium, Canada, Dominican Republic, Gu atemala, Israel, Netherlands, and Puerto Rico. . . .DIMARE FRESH , INC

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On June 13, 2008, the FDA conducted a media brie fing through its then

– Associat e Commiss ioner for Foods, Dr. David Acheson. Dr. Acheson stated the FDA suspec ted 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, howe ver, 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 sta ted 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 r elease announcing that “fresh tomatoes n ow available in the domestic market are not associated with the current outbreak.” J. A. 62

. “A s 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 sa lmonella 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’ B r. 19

. B. The Tomato Producers’ A mended Complaint

FDA recommends that retailers, restaur at eurs, 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 tom a toes sold with vine still attached, may

co n tinue to be offered from any source.

J.A. 35.DIMARE FRESH , INC

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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 t his suit as a putative class action on July 29, 2013. Suppl emental Appendix 1. 4 Upon the G overnment’s motion to dismiss the C omplaint , the Tomato Producers filed an A mended C omplaint on April 16, 2014, electing to remove the class allegations and name additional parties to the suit.

In the Amended C omplaint, the Tomato Producers a llege 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 war nings, 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 prohibi ted from exercising their right to market or sell the tom atoes, they nonetheless allege that because they “had no practical alternative to p reserve their tomatoes,” J.A. 31,

4 Pursuant to Federal Circuit Rule 30(f), the Go vernment attached a supplemental appendix to its brief. Appellee’s Br. 5 n.3.DIMARE FRESH , INC

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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
tomato e s, 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 Pr oducers’ Amended Complaint pursuant to RCFC 12(b)(6) for failure to s t ate 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 Oct ober 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. D ISCUSSION

A. The General Principl e Articulated b y t he Claims Court Is Not Supported b y Our Takings Jurisprudence

Whether the Claims Court properly dismissed a “co m plaint 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 dismis sal 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 p oint in the proceedings, we accept the Tomato Producers’ well

- pleaded factual alleg ations 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

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Federal Practice and Procedure § 1357 (3d ed. 2004) . We may also look to “matter s 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 “ regulat ory takings claim s are not pl ausible .” 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 principl e that “[a] regulatory takings claim is not plausible an d 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. U nited 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 guara ntees 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. C t. 2419, 2426 (2015)

. The “classic taking [is one] in which the gover nment 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 Produ cers 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

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(government occupation of private warehouse). Therefore, the Tomato Pro ducers’ 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. C t. at 2427 (citing Pa. Coal , 260 U.S. at 415).
The Supreme Court has treated certain regulatory a ctions as “categorical” takings. A categorical taking occurs when regulations “compel the property owner to suffer a physical invasion of his property” or pr ohibit “ all econom ically 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 determini ng 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 (19 78). Instead, it has relied on “ad hoc, factual inquiries into the circu mstances 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 S upreme Court has identified several factors bearing parti cular 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 governmentDIMARE FRESH , INC

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action.” Penn Cent

. Transp. Co ., 438 U.S. at 124; a ccord Ruckelshaus v. Monsanto Co.

, 467 U.S. 986, 1005 (1984) ; PruneYard Shopping Ctr

. v. Robbins , 447 U.S. 74, 82

– 83 (1980).
The general principl e 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 (S otomayor, 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 go vernment 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 case s cited by the Claims Court to support its general principl e 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 Vendin g , 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 theDIMARE FRESH , INC

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sale of cigarettes and smokeless tobacco from most ven ding 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 toba cco, tobacco vending machine owners could not sound a temporary regulatory takings claim

. A- 1 Cigarette Ven ding , 49 Fed. Cl. at 364 (T he FDA “ lack [ed] [ the ] authority to regulate tobacco in the first instance ” ).
Similarly, in Flowers Mill , the Federal Aviation A dministration (“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 determin ation. Id . at 183. In rejecting the landowner’s claim, the Claims Court found the FAA did not possess the regulat ory 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 mil itary base filed a takings complaint against the gover nment 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 man y 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 mil itary officials had no authority to act without approval of the proposal. Id . at 3 18 (“Congress has never given affirmative support or recognition of any sort to thisDIMARE FRESH , INC

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project.”). According to the court , the government actio n was “not expressly authorized or directed by Congress [or] at least [] a natural consequence of Congressionally approved measures .” Id . at 319

. T he decisions in these cases cannot reasonably be e xtrapolated 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

. A n agency’s lack of authority to regulate neces sarily 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 age ncy acts without congressional authority.”); United States v. N. Am. Transp. & Trading Co ., 253 U.S. 330, 33 3 (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 d efendant’s officers may be enjoinable, but they do not

cons titute 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 taking s claim irrespe ctive 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, 11 54 (Fed. Cir. 2014) (stating that government action absent a “statute, regulation, or direct order” may support a regulatory takings claim).DIMARE FRESH , INC

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In A & D Auto Sales , former franchisees of General Motors Corporation and Chrysler LLC brought a regul atory 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 req uired 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

, al though 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 h im that he had no extraction rights and that his dredging o r 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 Const itution measures a taking of property not by “what [the] government said it was doing, or what it later says its intent was.

. . . W hat counts is what the government did .” Id . at 889

– 90 (emphasis added) (citing Hughes v. Was hington , 389 U.S. 29 0, 298 (1967) (Stewart, J., concurring))

. Therefore, w e reject the general principl e proffered by the Claims Court because it contravenes this court’s prevai ling precedent and unduly narrows the regulatory takings jurisprudence

. B. Tomato Producers’ Amende d Complaint Does Not Raise a Regulatory Takings Claim
We turn next to whether there has been government action sufficient to invoke a regulatory takings analysisDIMARE FRESH , INC

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under Penn Central

. The precise issue is whether the FDA’s press release s 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 regul atory taking

. It does not.
The Tomato Producers argue that the FDA’s authority to issue the press release s was an “exercise of [its ] regul atory authority. ” Appellants’ Br. 18

. Although the Tomato Producers concede that the public warnings w ere not a “formal order,” they nonetheless assert that the “action s had the practical effect” of a formal order because t hey “stop p [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 the mselves not a regulation, were based on a regulation pro mulgated 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. Subs ection (a) of that provision reads:
Within the meaning of the Federal Food, Drug, and Cosmetic Act an imminent hazard to the pu blic health is considered to exist when the evidence is suffic ient 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 occu rrence of the final antic i pated injury is not esse ntial to establish that an imminent hazard of such

occurrence e x ists.
21 C.F.R. § 2.5(a ).DIMARE FRESH , INC

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The fact that the FDA’s action s are authorized by a regulation promulgated pursuant to the publicity prov ision in 21 U.S.C. § 375 (b) does not support the Tomato Producers’ regulatory taking s 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 action s

–– the issuance of the press releases and media briefing

–– result ed in a taking of the Tomato Pr oducers’ property. The Tomato Producers point to no taking of their property. What the Tomato Producers allege i s that the FDA’s June 2008 press release s and media briefing was government action sufficient to effect a regulatory taking

. Appellant’s Br. 4–9 . However

, it appears t he Tomato Producers’ regulatory taking s claim is condition ed on the fact that the FDA was incorrect in its initial determin ation that the tomatoes were linked to the salmonella outbreak

. W hether 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 release s 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 isDIMARE FRESH , INC

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critical to the adequate functioning of efficient markets. The fact that the market choose s to incorporate all avail able 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 legit imate 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 Sta tes , 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

. Wha t Tomato Producers effectively request is for this court to find that government action devoid of coercion, legal threat, regulatory restriction

, or any binding oblig ation 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 action s 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 theDIMARE FRESH , INC

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surrender of the artifacts, and there is no physical inv asion or res traint 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 devi s e the [ir] pro[perty].”). Acceptance of the Tomato Producers’ contentions would take us far afield from the primary purpose of our takings jurispr udence

–– to dete rmine whether a “restriction upon the use of property

. . . deprives the owner of some right theret ofore 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 12 60, 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 s afety 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 Service s, 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 healthDIMARE FRESH , INC

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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 Co nsumer Product Safety Commission to “cause to be disse minated information regarding hazardous substances in situations inv olving, 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 frequen tly employed by administrative agencies

. See ge nerally United States Dep ar t ment of Health and Human Se rvices, The Health Consequences of Smoking

–– 50 Years of Progress: A Report of the Surgeon Ge n eral (201 4), eral (201 4), http://www.surgeongeneral.gov/library/repor ts/50

- years -of- progress/full

- report.pdf ` (comprehensive report chronicling the destructive consequences of fi f ty 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/New sroom/News Releases/2010/In fant

- Deaths

- Prompt

- CPSC

- Warning

- About

- Sling

Carriers

- 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 P roducers’ 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 th e 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 th e warnings concerning Appellants’ tomatoes, theDIMARE FRESH , INC

. v. U NITED S TATES 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 accountabl e 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 accoun table if they abuse that discretio n ”) ; Ernest Ge l lhorn, Adverse Publicity by Administrative Agencies , 86 Harv. L. Rev . 1380 , 1384 (1973) (“[L]o s ses which may result from adverse agency publicity directed toward an entire indu stry are likely to be great, and concentrated public atte ntion hei ghtens the need for carefully conceived and well

articulated procedures .”).

C ONCLUSION 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 jal apeno and Serrano peppers grown, harvested or packed in Mexico.” See Salmonella Saintpaul Ou tbreak

, FDA, http://www.fda.gov/NewsEvents/PublicHealt hFocus/ucm179116.htm ( last visited Aug. 14, 2015).