Forbidden Fruit No Longer

"The members consistently held for uniformity of treatment for shippers for all tomatoes from the state," committee manager Reginald Brown said in explaining the vote.

In the summer of 2004, Procacci hired Washington lawyer David L. Durkin, a partner at Olsson, Frank and Weeda. Durkin decided to go around the Florida group's decision, so the Agriculture Department wouldn't have to overrule one of its own marketing committees. He lobbied for placing the UglyRipe in the department's new Identity Preservation Program, which was created to track genetically modified food.

Former agriculture secretary John Block, who works with Durkin's firm, lobbied the regulators.

In 2005, congressional members from Procacci's home state, Republican Sens. Arlen Specter and Rick Santorum and Republican Rep. Don Sherwood, introduced legislation to exempt Florida tomatoes from the federal grading standards if they were enrolled in the identity program.

The produce distributor also hired a District public relations firm, SciWords, to market the UglyRipe. It set up a tomato tasting on Capitol Hill in September 2004.

There Procacci handed out UglyRipe samples and fliers that said, "Why should the Florida Tomato Committee deny Americans the simple pleasure of a good-tasting tomato year-round?" The Capitol Hill newspaper Roll Call covered the event. Gourmet magazine gave the UglyRipe two pages in its February 2006 issue.

Last June, the Agriculture Department issued a proposed exemption for Procacci's prized product. Comments arrived from 88 individuals and groups. Only nine opposed the exemption.

One Ohio consumer lauded UglyRipes as a bright spot in the snow, ice and potholes of winter. B.F. Mazzeo of Northfield, N.J., a produce distributor, said the five-star restaurants it served used UglyRipes as often as they were available. Linda Kuchta, wholesale tomato buyer for BJ's Wholesale Club of Natick, Mass., said, "Our customers are looking for that specific tomato and wish to purchase it year-round."

Jeb Bush, then the Florida governor, as well as other growers and the state's tomato council argued that the UglyRipe should comply with the No. 2 standard just like everyone else. Procacci could cull more of his "bad" tomatoes or sell them in the state.

Bush asked the Agriculture Department to withdraw the proposal, saying "it creates an unfair advantage for just one grower in the marketplace."

The Jan. 17 final rule, issued 15 days after Bush left office, amounted to a clever regulatory sidestep. It gave the UglyRipe a narrow exemption from the standard for shape and put it in the Identity Protection Program, where Procacci will pay $150,000 annually for Agriculture Department auditing to ensure the product matches its genetic signature.

"The Ugly Ripe issue is a matter of balance -- allowing innovation to meet consumer preferences while supporting the Florida tomato industry's efforts to ensure that high-quality tomatoes are consistently offered in the marketplace," Kenneth Clayton, associate administrator of the Agricultural Marketing Service, said in a statement.

For Procacci, it was a sweet victory. He beat the regulatory system and his competitors, and he is planning a new crop of premium-priced UglyRipes on 500 acres in Florida this fall.

John Scott, a professor of horticultural science at the University of Florida, said other varieties taste just as good or better.

He said he put the UglyRipe through taste tests a few years ago, with some funding from the Florida Tomato Committee. "In three out of three panels, they were the least favored for flavor acceptance," Scott said.

Brown, of the tomato committee, said the taste results don't matter because emotion drives tomato purchases.

"That's part of the lure of the UglyRipe. It makes you think you grew them," he said. "It was the greatest marketing program in the history of the tomato."

Cindy Skrzycki is regulatory columnist for Bloomberg News. She can be reached atcskrzycki@bloomberg.net.