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Full Opinion
RUCKELSHAUS, ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
v.
MONSANTO CO.
Supreme Court of United States.
*989 Deputy Solicitor General Wallace argued the cause for appellant. With him on the briefs were Solicitor General Lee, Acting Assistant Attorney General Liotta, Deputy Assistant Attorney General Walker, Jerrold J. Ganzfried, Raymond N. Zagone, Anne S. Almy, and John A. Bryson.
A. Raymond Randolph, Jr., argued the cause for appellee. With him on the briefs were David G. Norrell, Thomas O. Kuhns, W. Wayne Withers, Frederick A. Provorny, Gary S. Dyer, C. David Barrier, and Kenneth R. Heineman.[*]
Briefs of amici curiae urging affirmance were filed for Abbott Laboratories et al. by Kenneth W. Weinstein and Lawrence S. Ebner; for the American Chemical Society et al. by William J. Butler, Jr., and Arthur D. McKey; for the American Patent Law Association, Inc., by Donald S. Chisum; for Avco Corp. by Alvin D. Shapiro; for Sathon, Inc., by Ralph E. Brown and Mark E. Singer; for SDS Biotech Corp. et al. by Harold Himmelman and Cynthia A. Lewis; and for Stauffer Chemical Co. by Lawrence S. Ebner, John T. Ronan III, and John W. Behan.
*990 JUSTICE BLACKMUN delivered the opinion of the Court.
In this case, we are asked to review a United States District Court's determination that several provisions of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 61 Stat. 163, as amended, 7 U. S. C. ยง 136 et seq., are unconstitutional. The provisions at issue authorize the Environmental Protection Agency (EPA) to use data submitted by an applicant for registration of a pesticide[1] in evaluating the application of a subsequent applicant, and to disclose publicly some of the submitted data.
I
Over the past century, the use of pesticides to control weeds and minimize crop damage caused by insects, disease, and animals has become increasingly more important for American agriculture. See S. Rep. No. 95-334, p. 32 (1977); S. Rep. No. 92-838, pp. 3-4, 6-7 (1972); H. R. Rep. No. 92-511, pp. 3-7 (1971). While pesticide use has led to improvements in productivity, it has also led to increased risk of harm to humans and the environment. See S. Rep. No. 92-838, at 3-4, 6-7; H. R. Rep. No. 92-511, at 3-7. Although the Federal Government has regulated pesticide use for nearly 75 years,[2] FIFRA was first adopted in 1947. 61 Stat. 163.
*991 As first enacted, FIFRA was primarily a licensing and labeling statute. It required that all pesticides be registered with the Secretary of Agriculture prior to their sale in interstate or foreign commerce. ยงยง 3(a) and 4(a) of the 1947 Act, 61 Stat. 166-167. The 1947 legislation also contained general standards setting forth the types of information necessary for proper labeling of a registered pesticide, including directions for use; warnings to prevent harm to people, animals, and plants; and claims made about the efficacy of the product. ยงยง 2(u)(2) and 3(a)(3).
Upon request of the Secretary, an applicant was required to submit test data supporting the claims on the label, including the formula for the pesticide. ยงยง 4(a) and (b). The 1947 version of FIFRA specifically prohibited disclosure of "any information relative to formulas of products," ยงยง 3(c)(4) and 8(c), but was silent with respect to the disclosure of any of the health and safety data submitted with an application.[3]
In 1970, the Department of Agriculture's FIFRA responsibilities were transferred to the then newly created Environmental Protection Agency, whose Administrator is the appellant in this case. See Reorganization Plan No. 3 of 1970, 35 Fed. Reg. 15623 (1970), 5 U. S. C. App., p. 1132.
Because of mounting public concern about the safety of pesticides and their effect on the environment and because of a growing perception that the existing legislation was not equal to the task of safeguarding the public interest, see S. Rep. No. 92-838, at 3-9; S. Rep. No. 92-970, p. 9 (1972); H. R. Rep. No. 92-511, at 5-13, Congress undertook a comprehensive revision of FIFRA through the adoption of the Federal Environmental Pesticide Control Act of 1972, 86 Stat. 973. The amendments transformed FIFRA from a labeling law into a comprehensive regulatory statute. H. R. Rep. No. 92-511, at 1. As amended, FIFRA regulated the *992 use, as well as the sale and labeling, of pesticides; regulated pesticides produced and sold in both intrastate and interstate commerce; provided for review, cancellation, and suspension of registration; and gave EPA greater enforcement authority. Congress also added a new criterion for registration: that EPA determine that the pesticide will not cause "unreasonable adverse effects on the environment." ยงยง 3(c)(5)(C) and (D), 86 Stat. 980-981.
For purposes of this litigation, the most significant of the 1972 amendments pertained to the pesticide-registration procedure and the public disclosure of information learned through that procedure. Congress added to FIFRA a new section governing public disclosure of data submitted in support of an application for registration. Under that section, the submitter of data could designate any portions of the submitted material it believed to be "trade secrets or commercial or financial information." ยง 10(a), 86 Stat. 989. Another section prohibited EPA from publicly disclosing information which, in its judgment, contained or related to "trade secrets or commercial or financial information." ยง 10(b). In the event that EPA disagreed with a submitter's designation of certain information as "trade secrets or commercial or financial information" and proposed to disclose that information, the original submitter could institute a declaratory judgment action in federal district court. ยง 10(c).
The 1972 amendments also included a provision that allowed EPA to consider data submitted by one applicant for registration in support of another application pertaining to a similar chemical, provided the subsequent applicant offered to compensate the applicant who originally submitted the data. ยง 3(c)(1)(D). In effect, the provision instituted a mandatory data-licensing scheme. The amount of compensation was to be negotiated by the parties, or, in the event negotiations failed, was to be determined by EPA, subject to judicial review upon the instigation of the original data submitter. The scope of the 1972 data-consideration provision, however, *993 was limited, for any data designated as "trade secrets or commercial or financial information" exempt from disclosure under ยง 10 could not be considered at all by EPA to support another registration application unless the original submitter consented. Ibid.
The 1972 amendments did not specify standards for the designation of submitted data as "trade secrets or commercial or financial information." In addition, Congress failed to designate an effective date for the data-consideration and disclosure schemes. In 1975, Congress amended ยง 3(c)(1)(D) to provide that the data-consideration and data-disclosure provisions applied only to data submitted on or after January 1, 1970, 89 Stat. 755, but left the definitional question unanswered.
Much litigation centered around the definition of "trade secrets or commercial or financial information" for the purposes of the data-consideration and data-disclosure provisions of FIFRA. EPA maintained that the exemption from consideration or disclosure applied only to a narrow range of information, principally statements of formulae and manufacturing processes. In a series of lawsuits, however, data-submitting firms challenged EPA's interpretation and obtained several decisions to the effect that the term "trade secrets" applied to any data, including health, safety, and environmental data, that met the definition of trade secrets set forth in Restatement of Torts ยง 757 (1939). See, e. g., Mobay Chemical Corp. v. Costle, 447 F. Supp. 811 (WD Mo. 1978); Chevron Chemical Co. v. Costle, 443 F. Supp. 1024 (ND Cal. 1978). These decisions prevented EPA from disclosing much of the data on which it based its decision to register pesticides and from considering the data submitted by one applicant in reviewing the application of a later applicant. See S. Rep. No. 95-334, at 7; H. R. Rep. No. 95-663, p. 18 (1977).
Because of these and other problems with the regulatory scheme embodied in FIFRA as amended in 1972, see S. Rep. *994 No. 95-334, at 2-5; H. R. Rep. No. 95-663, at 15-21; see generally EPA Office of Pesticide Programs, FIFRA: Impact on the Industry (1977), reprinted in S. Rep. No. 95-334, at 34-68, Congress enacted other amendments to FIFRA in 1978. These were effected by the Federal Pesticide Act of 1978, 92 Stat. 819. The new amendments included a series of revisions in the data-consideration and data-disclosure provisions of FIFRA's ยงยง 3 and 10, 7 U. S. C. ยงยง 136a and 136h.
Under FIFRA, as amended in 1978, applicants are granted a 10-year period of exclusive use for data on new active ingredients contained in pesticides registered after September 30, 1978. ยง 3(c)(1)(D)(i). All other data submitted after December 31, 1969, may be cited and considered in support of another application for 15 years after the original submission if the applicant offers to compensate the original submitter. ยง 3(c)(1)(D)(ii).[4] If the parties cannot agree on the amount of *995 compensation, either may initiate a binding arbitration proceeding. The results of the arbitration proceeding are not subject to judicial review, absent fraud or misrepresentation. The same statute provides that an original submitter who refuses to participate in negotiations or in the arbitration proceeding forfeits his claim for compensation. Data that do not qualify for either the 10-year period of exclusive use or the 15-year period of compensation may be considered by EPA without limitation. ยง 3(c)(1)(D)(iii).
Also in 1978, Congress added a new subsection, ยง 10(d), 7 U. S. C. ยง 136h(d), that provides for disclosure of all health, *996 safety, and environmental data to qualified requesters, notwithstanding the prohibition against disclosure of trade secrets contained in ยง 10(b). The provision, however, does not authorize disclosure of information that would reveal "manufacturing or quality control processes" or certain details about deliberately added inert ingredients unless "the Administrator has first determined that the disclosure is necessary to protect against an unreasonable risk of injury to health or the environment." ยงยง 10(d)(1)(A) to (C).[5] EPA may not disclose data to representatives of foreign or multinational pesticide companies unless the original submitter of *997 the data consents to the disclosure. ยง 10(g). Another subsection establishes a criminal penalty for wrongful disclosure by a Government employee or contractor of confidential or trade secret data. ยง 10(f).
II
Appellee Monsanto Company (Monsanto) is an inventor, developer, and producer of various kinds of chemical products, including pesticides. Monsanto, headquartered in St. Louis County, Mo., sells in both domestic and foreign markets. It is one of a relatively small group of companies that invent and develop new active ingredients for pesticides and conduct most of the research and testing with respect to those ingredients.[6]
These active ingredients are sometimes referred to as "manufacturing-use products" because they are not generally sold directly to users of pesticides. Rather, they must first be combined with "inert ingredients" ย chemicals that dissolve, dilute, or stabilize the active components. The results of this process are sometimes called "end-use products," and the firms that produce end-use products are called "formulators." See the opinion of the District Court in this case, Monsanto Co. v. Acting Administrator, United States Environmental Protection Agency, 564 F. Supp. 552, 554 (ED Mo. 1983). A firm that produces an active ingredient may *998 use it for incorporation into its own end-use products, may sell it to formulators, or may do both. Monsanto produces both active ingredients and end-use products. Ibid.
The District Court found that development of a potential commercial pesticide candidate typically requires the expenditure of $5 million to $15 million annually for several years. The development process may take between 14 and 22 years, and it is usually that long before a company can expect any return on its investment. Id., at 555. For every manufacturing-use pesticide the average company finally markets, it will have screened and tested 20,000 others. Monsanto has a significantly better-than-average success rate; it successfully markets 1 out of every 10,000 chemicals tested. Ibid.
Monsanto, like any other applicant for registration of a pesticide, must present research and test data supporting its application. The District Court found that Monsanto had incurred costs in excess of $23.6 million in developing the health, safety, and environmental data submitted by it under FIFRA. Id., at 560. The information submitted with an application usually has value to Monsanto beyond its instrumentality in gaining that particular application. Monsanto uses this information to develop additional end-use products and to expand the uses of its registered products. The information would also be valuable to Monsanto's competitors. For that reason, Monsanto has instituted stringent security measures to ensure the secrecy of the data. Ibid.
It is this health, safety, and environmental data that Monsanto sought to protect by bringing this suit. The District Court found that much of these data "contai[n] or relat[e] to trade secrets as defined by the Restatement of Torts and Confidential, commercial information." Id., at 562.
Monsanto brought suit in District Court, seeking injunctive and declaratory relief from the operation of the data-consideration provisions of FIFRA's ยง 3(c)(1)(D), and the data-disclosure provisions of FIFRA's ยง 10 and the related ยง 3(c)(2)(A). Monsanto alleged that all of the challenged provisions *999 effected a "taking" of property without just compensation, in violation of the Fifth Amendment. In addition, Monsanto alleged that the data-consideration provisions violated the Amendment because they effected a taking of property for a private, rather than a public, purpose. Finally, Monsanto alleged that the arbitration scheme provided by ยง 3(c)(1)(D)(ii) violates the original submitter's due process rights and constitutes an unconstitutional delegation of judicial power.
After a bench trial, the District Court concluded that Monsanto possessed property rights in its submitted data, specifically including the right to exclude others from the enjoyment of such data by preventing their unauthorized use and by prohibiting their disclosure. 564 F. Supp., at 566. The court found that the challenged data-consideration provisions "give Monsanto's competitors a free ride at Monsanto's expense." Ibid. The District Court reasoned that ยง 3(c)(1)(D) appropriated Monsanto's fundamental right to exclude, and that the effect of that appropriation is substantial. The court further found that Monsanto's property was being appropriated for a private purpose and that this interference was much more significant than the public good that the appropriation might serve. 564 F. Supp., at 566-567.
The District Court also found that operation of the disclosure provisions of FIFRA constituted a taking of Monsanto's property. The cost incurred by Monsanto when its property is "permanently committed to the public domain and thus effectively destroyed" was viewed by the District Court as significantly outweighing any benefit to the general public from having the ability to scrutinize the data, for the court seemed to believe that the general public could derive all the assurance it needed about the safety and effectiveness of a pesticide from EPA's decision to register the product and to approve the label. Id., at 567, and n. 4.
After finding that the data-consideration provisions operated to effect a taking of property, the District Court found *1000 that the compulsory binding-arbitration scheme set forth in ยง 3(c)(1)(D)(ii) did not adequately provide compensation for the property taken. The court found the arbitration provision to be arbitrary and vague, reasoning that the statute does not give arbitrators guidance as to the factors that enter into the concept of just compensation, and that judicial review is foreclosed except in cases of fraud. 564 F. Supp., at 567. The District Court also found that the arbitration scheme was infirm because it did not meet the requirements of Art. III of the Constitution. Ibid. Finally, the court found that a remedy under the Tucker Act was not available for the deprivations of property effected by ยงยง 3 and 10. 564 F. Supp., at 567-568.
The District Court therefore declared ยงยง 3(c)(1)(D), 3(c)(2)(A), 10(b), and 10(d) of FIFRA, as amended by the Federal Pesticide Act of 1978, to be unconstitutional, and permanently enjoined EPA from implementing or enforcing those sections. See Amended Judgment, App. to Juris. Statement 41a.[7]
We noted probable jurisdiction. 464 U. S. 890 (1983).
III
In deciding this case, we are faced with four questions: (1) Does Monsanto have a property interest protected by the Fifth Amendment's Taking Clause in the health, safety, and environmental data it has submitted to EPA? (2) If so, does EPA's use of the data to evaluate the applications of others or EPA's disclosure of the data to qualified members of the public effect a taking of that property interest? (3) If there *1001 is a taking, is it a taking for a public use? (4) If there is a taking for a public use, does the statute adequately provide for just compensation?
For purposes of this case, EPA has stipulated that "Monsanto has certain property rights in its information, research and test data that it has submitted under FIFRA to EPA and its predecessor agencies which may be protected by the Fifth Amendment to the Constitution of the United States." App. 36. Since the exact import of that stipulation is not clear, we address the question whether the data at issue here can be considered property for the purposes of the Taking Clause of the Fifth Amendment.
This Court never has squarely addressed the applicability of the protections of the Taking Clause of the Fifth Amendment to commercial data of the kind involved in this case. In answering the question now, we are mindful of the basic axiom that " `[p]roperty interests . . . are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.' " Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U. S. 155, 161 (1980), quoting Board of Regents v. Roth, 408 U. S. 564, 577 (1972). Monsanto asserts that the health, safety, and environmental data it has submitted to EPA are property under Missouri law, which recognizes trade secrets, as defined in ยง 757, Comment b, of the Restatement of Torts, as property. See Reddi-Wip, Inc. v. Lemay Valve Co., 354 S. W. 2d 913, 917 (Mo. App. 1962); Harrington v. National Outdoor Advertising Co., 355 Mo. 524, 532, 196 S. W. 2d 786, 791 (1946); Luckett v. Orange Julep Co., 271 Mo. 289, 302-304, 196 S. W. 740, 743 (1917). The Restatement defines a trade secret as "any formula, pattern, device or compilation of information which is used in one's business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it." ยง 757, Comment b. And the parties have stipulated that much of the information, research, and test data that Monsanto has submitted under *1002 FIFRA to EPA "contains or relates to trade secrets as defined by the Restatement of Torts." App. 36.
Because of the intangible nature of a trade secret, the extent of the property right therein is defined by the extent to which the owner of the secret protects his interest from disclosure to others. See Harrington, supra; Reddi-Wip, supra; Restatement of Torts, supra; see also Kewanee Oil Co. v. Bicron Corp., 416 U. S. 470, 474-476 (1974). Information that is public knowledge or that is generally known in an industry cannot be a trade secret. Restatement of Torts, supra. If an individual discloses his trade secret to others who are under no obligation to protect the confidentiality of the information, or otherwise publicly discloses the secret, his property right is extinguished. See Harrington, supra; 1 R. Milgrim, Trade Secrets ยง 1.01[2] (1983).
Trade secrets have many of the characteristics of more tangible forms of property. A trade secret is assignable. See, e. g., Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U. S. 373, 401-402 (1911); Painton & Co. v. Bourns, Inc., 442 F. 2d 216, 225 (CA2 1971). A trade secret can form the res of a trust, Restatement (Second) of Trusts ยง 82, Comment e (1959); 1 A. Scott, Law of Trusts ยง 82.5, p. 703 (3d ed. 1967), and it passes to a trustee in bankruptcy. See In re Uniservices, Inc., 517 F. 2d 492, 496-497 (CA7 1975).
Even the manner in which Congress referred to trade secrets in the legislative history of FIFRA supports the general perception of their property-like nature. In discussing the 1978 amendments to FIFRA, Congress recognized that data developers like Monsanto have a "proprietary interest" in their data. S. Rep. No. 95-334, at 31. Further, Congress reasoned that submitters of data are "entitled" to "compensation" because they "have legal ownership of the data." H. R. Conf. Rep. No. 95-1560, p. 29 (1978).[8] This general *1003 perception of trade secrets as property is consonant with a notion of "property" that extends beyond land and tangible goods and includes the products of an individual's "labour and invention." 2 W. Blackstone, Commentaries *405; see generally J. Locke, The Second Treatise of Civil Government, ch. 5 (J. Gough ed. 1947).
Although this Court never has squarely addressed the question whether a person can have a property interest in a trade secret, which is admittedly intangible, the Court has found other kinds of intangible interests to be property for purposes of the Fifth Amendment's Taking Clause. See, e. g., Armstrong v. United States, 364 U. S. 40, 44, 46 (1960) (materialman's lien provided for under Maine law protected by Taking Clause); Louisville Joint Stock Land Bank v. Radford, 295 U. S. 555, 596-602 (1935) (real estate lien protected); Lynch v. United States, 292 U. S. 571, 579 (1934) (valid contracts are property within meaning of the Taking Clause). That intangible property rights protected by state law are deserving of the protection of the Taking Clause has long been implicit in the thinking of this Court:
"It is conceivable that [the term `property' in the Taking Clause] was used in its vulgar and untechnical sense of the physical thing with respect to which the citizen exercises rights recognized by law. On the other hand, it may have been employed in a more accurate sense to denote the group of rights inhering in the citizen's relation to the physical thing, as the right to possess, use and dispose of it. In point of fact, the construction given the phrase has been the latter." United States v. General Motors Corp., 323 U. S. 373, 377-378 (1945).
We therefore hold that to the extent that Monsanto has an interest in its health, safety, and environmental data cognizable as a trade-secret property right under Missouri law, *1004 that property right is protected by the Taking Clause of the Fifth Amendment.[9]
IV
Having determined that Monsanto has a property interest in the data it has submitted to EPA, we confront the difficult question whether a "taking" will occur when EPA discloses those data or considers the data in evaluating another application for registration. The question of what constitutes a "taking" is one with which this Court has wrestled on many occasions. It has never been the rule that only governmental acquisition or destruction of the property of an individual constitutes a taking, for
"courts have held that the deprivation of the former owner rather than the accretion of a right or interest *1005 to the sovereign constitutes the taking. Governmental action short of acquisition of title or occupancy has been held, if its effects are so complete as to deprive the owner of all or most of his interest in the subject matter, to amount to a taking." United States v. General Motors Corp., 323 U. S., at 378.
See also PruneYard Shopping Center v. Robins, 447 U. S. 74 (1980); Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 415 (1922).
As has been admitted on numerous occasions, "this Court has generally `been unable to develop any "set formula" for determining when "justice and fairness" require that economic injuries caused by public action' " must be deemed a compensable taking. Kaiser Aetna v. United States, 444 U. S. 164, 175 (1979), quoting Penn Central Transportation Co. v. New York City, 438 U. S. 104, 124 (1978); accord, Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 295 (1981). The inquiry into whether a taking has occurred is essentially an "ad hoc, factual" inquiry. Kaiser Aetna, 444 U. S., at 175. The Court, however, has identified several factors that should be taken into account when determining whether a governmental action has gone beyond "regulation" and effects a "taking." Among those factors are: "the character of the governmental action, its economic impact, and its interference with reasonable investment-backed expectations." PruneYard Shopping Center v. Robins, 447 U. S., at 83; see Kaiser Aetna, 444 U. S., at 175; Penn Central, 438 U. S., at 124. It is to the last of these three factors that we now direct our attention, for we find that the force of this factor is so overwhelming, at least with respect to certain of the data submitted by Monsanto to EPA, that it disposes of the taking question regarding those data.
A
A "reasonable investment-backed expectation" must be more than a "unilateral expectation or an abstract need." *1006 Webb's Fabulous Pharmacies, 449 U. S., at 161. We find that with respect to any health, safety, and environmental data that Monsanto submitted to EPA after the effective date of the 1978 FIFRA amendments ย that is, on or after October 1, 1978[10] ย Monsanto could not have had a reasonable, investment-backed expectation that EPA would keep the data confidential beyond the limits prescribed in the amended statute itself. Monsanto was on notice of the manner in which EPA was authorized to use and disclose any data turned over to it by an applicant for registration.
Thus, with respect to any data submitted to EPA on or after October 1, 1978, Monsanto knew that, for a period of 10 years from the date of submission, EPA would not consider those data in evaluating the application of another without Monsanto's permission. ยง 3(c)(1)(D)(i). It was also aware, however, that once the 10-year period had expired, EPA could use the data without Monsanto's permission. ยงยง 3(c)(1)(D)(ii) and (iii). Monsanto was further aware that it was entitled to an offer of compensation from the subsequent applicant only until the end of the 15th year from the date of submission. ยง 3(c)(1)(D)(iii). In addition, Monsanto was aware that information relating to formulae of products could be revealed by EPA to "any Federal agency consulted and [could] be revealed at a public hearing or in findings of fact" issued by EPA "when necessary to carry out" EPA's duties under FIFRA. ยง 10(b). The statute also gave Monsanto notice that much of the health, safety, and efficacy data provided by it could be disclosed to the general public at any time. ยง 10(d). If, despite the data-consideration and data-disclosure provisions in the statute, Monsanto chose to submit the requisite data in order to receive a registration, it can hardly argue that its reasonable investment-backed *1007 expectations are disturbed when EPA acts to use or disclose the data in a manner that was authorized by law at the time of the submission.
Monsanto argues that the statute's requirement that a submitter give up its property interest in the data constitutes placing an unconstitutional condition on the right to a valuable Government benefit. See Brief for Appellee 29. But Monsanto has not challenged the ability of the Federal Government to regulate the marketing and use of pesticides. Nor could Monsanto successfully make such a challenge, for such restrictions are the burdens we all must bear in exchange for " `the advantage of living and doing business in a civilized community.' " Andrus v. Allard, 444 U. S. 51, 67 (1979), quoting Pennsylvania Coal Co. v. Mahon, 260 U. S., at 422 (Brandeis, J., dissenting); see Day-Brite Lighting, Inc. v. Missouri, 342 U. S. 421, 424 (1952). This is particularly true in an area, such as pesticide sale and use, that has long been the source of public concern and the subject of government regulation. That Monsanto is willing to bear this burden in exchange for the ability to market pesticides in this country is evidenced by the fact that it has continued to expand its research and development and to submit data to EPA despite the enactment of the 1978 amendments to FIFRA.[11] 564 F. Supp., at 561.
Thus, as long as Monsanto is aware of the conditions under which the data are submitted, and the conditions are rationally related to a legitimate Government interest, a voluntary submission of data by an applicant in exchange for the economic advantages of a registration can hardly be called a taking. See Corn Products Refining Co. v. Eddy, 249 U. S. *1008 427, 431-432 (1919) ("The right of a manufacturer to maintain secrecy as to his compounds and processes must be held subject to the right of the State, in the exercise of its police power and in promotion of fair dealing, to require that the nature of the product be fairly set forth"); see also Westinghouse Electric Corp. v. United States Nuclear Regulatory Comm'n, 555 F. 2d 82, 95 (CA3 1977).
B
Prior to the 1972 amendments, FIFRA was silent with respect to EPA's authorized use and disclosure of data submitted to it in connection with an application for registration. Another statute, the Trade Secrets Act, 18 U. S. C. ยง 1905, however, arguably is relevant. That Act is a general criminal statute that provides a penalty for any employee of the United States Government who discloses, in a manner not authorized by law, any trade-secret information that is revealed to him during the course of his official duties. This Court has determined that ยง 1905 is more than an "antileak" statute aimed at deterring Government employees from profiting by information they receive in their official capacities. See Chrysler Corp. v. Brown, 441 U. S. 281, 298-301 (1979). Rather, ยง 1905 also applies to formal agency action, i. e., action approved by the agency or department head. Ibid.
It is true that, prior to the 1972 amendments, neither FIFRA nor any other provision of law gave EPA authority to disclose data obtained from Monsanto. But the Trade Secrets Act is not a guarantee of confidentiality to submitters of data, and, absent an express promise, Monsanto had no reasonable, investment-backed expectation that its information would remain inviolate in the hands of EPA. In an industry that long has been the focus of great public concern and significant government regulation, the possibility was substantial that the Federal Government, which had thus far taken no position on disclosure of health, safety, and environmental data concerning pesticides, upon focusing on the issue, would *1009 find disclosure to be in the public interest. Thus, with respect to data submitted to EPA in connection with an application for registration prior to October 22, 1972,[12] the Trade Secrets Act provided no basis for a reasonable investment-backed expectation that data submitted to EPA would remain confidential.
A fortiori, the Trade Secrets Act cannot be construed as any sort of assurance against internal agency use of submitted data during consideration of the application of a subsequent applicant for registration.[13] Indeed, there is some evidence that the practice of using data submitted by one company during consideration of the application of a subsequent applicant was widespread and well known.[14] Thus, *1010 with respect to any data that Monsanto submitted to EPA prior to the effective date of the 1972 amendments to FIFRA, we hold that Monsanto could not have had a "reasonable investment-backed expectation" that EPA would maintain those data in strictest confidence and would use them exclusively for the purpose of considering the Monsanto application in connection with which the data were submitted.
C
The situation may be different, however, with respect to data submitted by Monsanto to EPA during the period from October 22, 1972, through September 30, 1978. Under the statutory scheme then in effect, a submitter was given an opportunity to protect its trade secrets from disclosure by designating them as trade secrets at the time of submission. When Monsanto provided data to EPA during this period, it was with the understanding, embodied in FIFRA, that EPA was free to use any of the submitted data that were not trade secrets in considering the application of another, provided *1011 that EPA required the subsequent applicant to pay "reasonable compensation" to the original submitter. ยง 3(c)(1)(D), 86 Stat. 979. But the statute also gave Monsanto explicit assurance that EPA was prohibited from disclosing publicly, or considering in connection with the application of another, any data submitted by an applicant if both the applicant and EPA determined the data to constitute trade secrets. ยง 10, 86 Stat. 989. Thus, with respect to trade secrets submitted under the statutory regime in force between the time of the adoption of the 1972 amendments and the adoption of the 1978 amendments, the Federal Government had explicitly guaranteed to Monsanto and other registration applicants an extensive measure of confidentiality and exclusive use. This explicit governmental guarantee formed the basis of a reasonable investment-backed expectation. If EPA, consistent with the authority granted it by the 1978 FIFRA amendments, were now to disclose trade-secret data or consider those data in evaluating the application of a subsequent applicant in a manner not authorized by the version of FIFRA in effect between 1972 and 1978, EPA's actions would frustrate Monsanto's reasonable investment-backed expectation with respect to its control over the use and dissemination of the data it had submitted.
The right to exclude others is generally "one of the most essential sticks in the bundle of rights that are commonly characterized as property." Kaiser Aetna, 444 U. S., at 176. With respect to a trade secret, the right to exclude others is central to the very definition of the property interest. Once the data that constitute a trade secret are disclosed to others, or others are allowed to use those data, the holder of the trade secret has lost his property interest in the data.[15]*1012 That the data retain usefulness for Monsanto even after they are disclosed ย for example, as bases from which to develop new products or refine old products, as marketing and advertising tools, or as information necessary to obtain registration in foreign countries ย is irrelevant to the determination of the economic impact of the EPA action on Monsanto's property right. The economic value of that property right lies in the competitive advantage over others that Monsanto enjoys by virtue of its exclusive access to the data, and disclosure or use by others of the data would destroy that competitive edge.
EPA encourages us to view the situation not as a taking of Monsanto's property interest in the trade secrets, but as a "pre-emption" of whatever property rights Monsanto may have had in those trade secrets. Brief for Appellant 27-28. The