(CN) — The 11th Circuit on Wednesday heard arguments in a class action against liquor giant Bacardi over its use of grains of paradise in its gin despite a 150-year-old Florida law that prohibits putting the spice in liquor.
Florida resident Uri Marrache filed the underlying federal lawsuit in 2019, alleging Bacardi put grains of paradise in Bombay Sapphire gin without regard for the post-Civil-War era criminal law, which labels the spice as an adulterant.
The Florida statute makes it a felony to put adulterants — substances that compromise a product’s safety and purity — in liquor. It rattles off a slew of banned ingredients, including lead sugar, opium and various botanical ingredients.
Some of the ingredients listed, such as grains of paradise, have since been deemed to be safe for use in food and drink. Grains of paradise nowadays are widely available in grocery stores.
A Florida federal judge ruled in January 2020 that the old law was preempted and superseded by federal regulations. 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."
Scola, a Barack Obama appointee, found that the Sunshine State law "frustrates the purpose" of the Federal Food, Drug and Cosmetic Act and its provisions giving the FDA broad authority to control food and beverage additives.
On appeal Wednesday in the 11th Circuit, Marrache’s counsel Douglas Stein argued that the district judge misinterpreted the federal regulation.
Stein argued that the federal regulation "simply prohibits any food additive from being sold" until it is "generally recognized as safe." The regulation does not mandate that all "generally recognized as safe" ingredients have to be available for sale, according to Stein.
Scola cited a legislative report excerpt that indicated the federal act sought to prevent overregulation of food additives. But Stein claims the excerpt was not part and parcel of the law itself.
Bacardi's appellate attorney told the three-judge panel that the 19th-century characterization of grains of paradise as an adulterant has been rendered void by Florida’s adoption of the FDA list of additives "generally recognized as safe,” or GRAS.
"The state of Florida adopted the GRAS list. They adopted the federal regulations that deemed grains of paradise and other seasonings to be safe for used in food and drink," the liquor giant's attorney Martin Steinberg told the panel.
Steinberg argued in his brief that "an admittedly antiquated criminal statute that offers no public health protection" by banning grains of paradise should not be "permitted to upend a comprehensive federal system" of food regulation.
As Steinberg noted, grains of paradise were clearly listed as an ingredient on Bombay Sapphire bottles.
An attorney for amicus curiae parties, including the Center for Food Safety and the Environmental Defense Fund, told the panel that there could be a "potentially destructive effect" if the district court's reasoning on federal preemption of local food safety laws is upheld.
"More than 150 years ago, Florida enacted [the adulterant] law to protect public health. Whether the law continues to provide public health protection is a question for the Florida Legislature," attorney Alexis Andiman argued for the advocacy groups. "But there is no question that Florida and every other state possesses the authority to protect public health by enacting laws and regulations that are stricter than federal standards governing food. That authority remains vitally important."
Andiman pointed to New York state's regulation of preservatives that cause allergic reactions as an example of food safety measures that go beyond federal law, with an eye towards protecting public health.
She added that the FDA's GRAS program — whereby companies certify food additives as "generally recognized as safe" — is "plagued with problems." Under the program, the Food and Drug Administration lets companies "self-certify" additives in secret without notice to the public, Andiman said.
U.S. Circuit Judge Barbara Lagoa, a Donald Trump appointee, noted during oral arguments that Marrache’s claim under Florida's unfair trade statute faces obstacles other than the issue of federal preemption.
Lagoa cited a clause in the unfair trade statute which exempts an "act or practice required or specifically permitted by federal or state law." The judge suggested that because putting grains of paradise in liquor is permissible under federal law, the unfair trade claim might fail.
"Isn't that in essence a safe harbor? Doesn't Bacardi now have a safe harbor in Florida for that purpose?" asked Lagoa.
Lagoa was joined on the panel by U.S. Circuit Judges Charles Wilson, a Bill Clinton appointee, and Andrew Brasher, another Trump appointee.
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