Forbidden Fruit No Longer

By Cindy Skrzycki
Tuesday, February 6, 2007

The UglyRipe tomato is like the frog prince. Once finally kissed by Washington regulators, it turned into a thing of beauty, and potential profit, for a Philadelphia produce distributor.

Joseph Procacci, who started in the wholesale tomato business in Philadelphia with his brother in 1948, said he was after taste, not appearance, when he developed a new variety of tomato that he trademarked in 2000 as UglyRipe.

"All I ever hear is that tomatoes taste like cardboard," Procacci said. "We have been trying to get a tasty tomato."

What he didn't anticipate was that the new creation of closely held Procacci Brothers Sales would run into a spirited, three-year regulatory dispute over its appearance. It drew the attention of top Washington lawyers, lobbyists, members of Congress, Jeb Bush and Gourmet magazine before being resolved last month in UglyRipe's favor.

The tomato's trip through the rule-writing maze illustrates the intricacies of federal agriculture standards and the rivalry over what ends up in the produce section of the supermarket. At stake is a share of the $1.4 billion-a-year fresh-tomato industry, led by Florida with more than one-third of the crop.

The new variety was derived from a French heirloom tomato called Marmonde and then crossed twice for strength and disease resistance. Misshapen, with big "shoulders" and a concave stem, it didn't meet the Agriculture Department's No. 2 grading standards.

Those specifications were set in 1955 to assure the quality and uniformity of the Florida round tomato. Thus, Procacci's pride couldn't be sold outside Florida in the prime winter growing season, from October to June.

The arbiter of compliance with the grading standard is the Florida Tomato Committee of Maitland, Fla., a dozen growers who supervise most of the $500 million-a-year Florida fresh-tomato industry. The committee decides what gets shipped out of the regulated tomato-growing area and what merits an exemption from the standard.

The panel gave Procacci Brothers experimental permits to grow the UglyRipe for the 2001, 2002 and 2003 seasons. The company said the product was an instant hit with tomato lovers.

Procacci realized that people craved in the winter the same sweet, juicy tomato they grow in their gardens or snap up at farmers markets in the summer. Many consumers thought the UglyRipe was worth a premium at about $3.99 a pound, which can be twice the price of the traditional Florida tomato.

Procacci said his company increased acreage for the 2004 season before learning the committee had voted against a permanent exemption. The wasted crop cost him $3 million, Procacci said.

The Ugly didn't make the grade because 90 percent of the tomatoes in a 25-pound box have to be designated No. 2 in shape, size and quality. Only about 70 percent of the newcomers met the standard.

"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.