11th Circuit rejects lawsuit against Bacardi over grains of paradise

ATLANTA (CN) — The 11th Circuit handed down a ruling Monday upholding a Florida federal judge’s dismissal of a class action against Bacardi over its use of a botanical called grains of paradise in its gin.

The federal lawsuit was filed in 2019 by Florida resident and attorney Uri Marrache, who alleged that Bacardi’s Bombay Sapphire gin contained the spice in violation of a 150-year-old Florida law that prohibited it in liquor. 

According to the 1868 law, it is a third-degree felony to include specific adulterants such as logwood, opium, sugar of lead, or “any other substance which is poisonous or injurious to health,” into any liquor.

However, Congress amended the Federal Food, Drug and Cosmetic Act in 1958 and listed grains of paradise as “generally recognized as safe.”

Marrache filed suit under Florida’s Deceptive and Unfair Trade Practices Act, or FDUTPA, claiming that Bacardi and Winn-Dixie, the supermarket where he bought the liquor, had engaged in “unfair,” “unconscionable,” and “deceptive” practices by selling gin adulterated with grains of paradise.

The district court dismissed the lawsuit in January 2020, finding that the federal Food Additives Amendment superseded the state law. U.S. District Judge Robert Scola Jr. wrote in part that "the antiquated Florida statute prohibits the use of an additive that has been found to be generally regarded as safe by the FDA."

“The main conflict here was how can the federal government say this is generally safe while the state legislature says it’s not,” said Christian Rodriguez, a Miami business attorney for Trembly Law, in an interview. "I assume that this kind of preemption issue will come up in other types of lawsuits in the future, not necessarily in regards to adulteration of liquor but even in terms of cannabis cases, the more it starts legalizing.”

Marrache appealed the district court's decision to the 11th Circuit, arguing Scola, a Barack Obama appointee, was wrong to find that the federal amendment preempted state law. He further argued he should have been given another chance to amend his complaint.

However, after hearing oral arguments in the case back in February, the Atlanta-based appeals court upheld the lower court's dismissal in a ruling Monday from a unanimous three-judge panel.

U.S. Circuit Judge Barbara Lagoa, a Donald Trump appointee, wrote for the panel that Marrache knew what he was purchasing as the ingredients are listed on the bottle and he did not claim to suffer any harm from consuming the gin.

"Because FDUTPA requires an aggrieved person to suffer actual damages, we conclude that Marrache has not pled a plausible claim for actual damages under FDUTPA," Lagoa wrote.

The panel found that Marrache's unjust enrichment claim also fails because he bought the bottle from Winn-Dixie and not directly from Bacardi, and what he received was not a "worthless" product as he alleged.

"Marrache and the other class members did in fact receive what they bargained for (and consumed, according to the amended complaint)—a gin that contains grains of paradise—a fact that was plainly and prominently stated on its bottles,” the ruling states. (Parentheses in original.)

The appeals court also rejected Marrache's challenging to the district court's dismissal of his case with prejudice, meaning he was not allowed to amend his complaint.

“Because any attempt by Marrache to amend the claims in his amended complaint would be futile, we conclude that the district court did not abuse its discretion in dismissing the amended complaint with prejudice,” Lagoa wrote.

Lagoa was joined on the panel by U.S. Circuit Judges Andrew Brasher, a fellow Trump appointee, and Charles Wilson, a Bill Clinton appointee.

In July, Florida lawmakers passed a bill that removed grains of paradise from the state's adulterated liquor statute.

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