Читать книгу Food Regulation - Neal D. Fortin - Страница 39

The Fifth Amendment provides that no private property shall be taken for public use without just compensation. Agencies may seize or embargo food for being adulterated or misbranded. Is such a seizure a “taking” under the Fifth Amendment? If it is, then the government would be constitutionally required to compensate those persons whose private property rights were affected.

Adulterated food with no commercial value presents an easy answer because with no value there can be no takings. However, the state is not required to compensate the seller of adulterated meat for the salvage value of the protein.

Seizures clearly interfere with people’s use and enjoyment of their property. However, foods under seizure are not taken for the public use. The purpose of the seizures is protection of the public’s health and welfare. However, in keeping with the broad authority, the Constitution extends to government as the protector of public health and safety, the general rule is that government seizure of private property to prevent harm does not require compensation.

The Supreme Court balances the public interest involved against the reasonableness of the infringement on individual private interests. In Mulger v. Kansas, 123 U.S. 623 (1887), the U.S. Supreme Court noted:

The power which the States have of prohibiting such use by individuals of their property as will be prejudicial to the health, the morals, or the safety of the public, is not—and, consistently with the existence and safety of organized society, cannot be—burdened with the condition that the State must compensate such individual owners for pecuniary losses they may sustain. The exercise of the police power by the destruction of property which is itself a public nuisance, or the prohibition of its use in a particular way, whereby its value becomes depreciated, is very different from taking property for public use, or from depriving a person of his property without due process of law. In the one case, a nuisance only is abated; in the other, unoffending property is taken away from an innocent owner.

Source: Modified from Mugler v. Kansas, 123 U.S. 623 (1887), U.S. Supreme Court.

The courts have routinely upheld the exercise of the police power even when property will be confiscated or destroyed.