Photo credit: Lemmikkipuu.  (Copyright information)

Grains of paradise (aframomum melegueta), pictured above, are a peppery, citrusy spice indigenous to West Africa, related to ginger and cardamom.  The name purportedly derives from medieval merchants’ claims that the plant grew only in the Garden of Eden.  Common to West African cuisine, grains of paradise are also one of the botanicals sometimes used to give gin its characteristic flavor.

In Florida, however, an obscure 1868 law makes it a third-degree felony to “adulterate[] … any liquor” with certain specified substances, ranging from grains of paradise and capsicum (chili pepper) to potentially deadly opium and “sugar of lead.”  Fla. Stat. § 562.455.  Some have postulated that this law’s original intent was to prevent consumer deception, as the banned ingredients were once added to liquor to make it taste stronger (more alcoholic) than it actually was.  That same practice spurred an 1816 law of Parliament (56 Geo. III, ch. 58) making it illegal for brewers and dealers in beer to possess grains of paradise.  Unlike merrie olde England, however, the Sunshine State never got around to repealing its law.

Fast forward to the present day, when Florida resident Uri Marrache purchased a bottle of Bombay Sapphire gin at a Winn-Dixie store in Florida.  After consuming the gin, Marrache filed suit under Florida’s Deceptive and Unfair Trade Practices Act, claiming that Bacardi (the producer of Bombay Sapphire) and Winn-Dixie had engaged in “unfair,” “unconscionable,” and “deceptive” practices by selling gin “adulterat[ed]” with grains of paradise.  Am. Compl., ¶ 38, Marrache v. Bacardi U.S.A., Inc., No. 2019-023856-RNS (S.D. Fla. Filed Oct. 14, 2019).  Marrache did not allege that the grains of paradise in the gin had actually caused him any physical injury or otherwise interfered with his enjoyment of the beverage.  Instead, he claimed that he was damaged in that he “did not receive what it [sic] bargained for: to wit a product which did not violate” the 1868 Florida statute.  Id. ¶ 67.  On this basis, Marrache sought certification of a class of Florida gin purchasers, as well as injunctive relief, class-wide refunds, and attorney’s fees. 

Last month, federal district judge Robert Scola, Jr. made short work of Marrache’s complaint.  The court’s opinion began by observing: “Numerous class actions have greatly benefited society such as Brown v. Board of Education, In re Exxon Valdez, and In re Agent Orange Products Liability Litigation.  This is not one of those class actions.”  Marrache v. Bacardi U.S.A., Inc., No. 19-23856-CIV, 2020 U.S. Dist. LEXIS 13668, at *1 (S.D. Fla. Jan. 28, 2020) (emphasis in original).  We’ll drink to that.

First, the court held that the federal Food, Drug, and Cosmetics Act (FDCA) preempted Florida’s ban on grains of paradise.  Congress amended the FDCA in 1958 for the purpose of “advanc[ing] food technology by permitting the use of food additives at safe levels.”  Cong. Rec. 17413 (daily ed. Aug. 13, 1958).  The legislative report accompanying this amendment explained that it “s[ought] to prevent rules”—like Florida’s—“that unnecessarily proscribe the use of additives that could enable the housewife to safely keep food longer, the processor to make it more tasteful and appetizing, and the Nation to make use of advances in technology calculated to increase and improve our food supplies.”  2020 U.S. Dist. LEXIS 13668, at *4-6 (citation omitted).  The FDA, in turn, promulgated regulations to implement this legislation, and those regulations list “grains of paradise” among those “[s]pices and other natural seasonings and flavorings” that are “generally recognized as safe” (GRAS).  21 C.F.R. § 182.10.  The court held that Florida’s “antiquated” 1868 statute “frustrates the purpose” of federal law by prohibiting an additive that the FDA had deemed safe and permissible for use.  Id.  This holding is noteworthy because, until now, relatively few court decisions have addressed the preemptive effect of the FDA’s GRAS regulations.  Cf. Backus v. Gen. Mills, Inc., 2018 U.S. Dist. LEXIS 208198 (N.D. Cal. Dec. 10, 2018) (finding preemption of lawsuit challenging defendants’ use of partially hydrogenated oils, when those ingredients were regarded as GRAS at the time of plaintiff’s purchase but later reclassified).

As a second ground for dismissal, the court held that Marrache had suffered no cognizable injury.  2020 U.S. Dist. LEXIS 13668, at *6-9.  The court explained that, to state a claim under Florida’s consumer protection statute, a plaintiff must allege “actual damages.”  Id.  Generally, such damages are measured “by subtracting the difference in market value of the product in the condition in which it was delivered and its market value in the condition in which it should have been delivered.”  Id.  2020 U.S. Dist. LEXIS 13668, at *6-9.  Rather than pointing to any impact of grains of paradise on the market value of Bombay Sapphire, Marrache argued that purchasers were entitled to a refund of their full purchase price because the gin’s “illegal” status rendered it “worthless.”  Id.  However, because the Florida statute was preempted, the Court observed, the gin was “not illegal” in the first place.  Id.  And beyond the bare assertion of illegality, the complaint “d[id] not set forth allegations explaining” how the gin was worthless—e.g., that it was undrinkable or caused the plaintiff any injury.  Id.

While this is all correct, the court unfortunately included dicta suggesting that, if the 1868 statute had not been preempted, Marrache’s “unlawful product” theory might have been sufficient to state a claim.  Id. at *8-9.  For that proposition, the court cited the Eleventh Circuit’s decision in Debernardis v. IQ Formulations, LLC, 942 F.3d 1076 (11th Cir. 2019), where the court “accept[ed], at least at the motion to dismiss stage, that a dietary supplement that is deemed adulterated and cannot lawfully be sold has no value.”  Id at 1085.  We think Debernardis was wrongly decided.  Cf. Thomas v. Costco Wholesale Corp., 2014 U.S. Dist. LEXIS 46405, at *23 (N.D. Cal. March 31, 2014) (holding that a plaintiff “cannot” state a consumer protection claim “by simply pointing to a regulation … that [the manufacturer] violated” and “summarily claiming that the product is [therefore] illegal to sell”).  In any event, in Debernardis, the Eleventh Circuit stressed that its decision was “limited to the specific facts alleged in th[at] case,” where the plaintiffs had purchased dietary supplements containing an untested new ingredient that the FDA had affirmatively warned was unlawful and potentially unsafe.  942 F.3d at 1088.  Thus, Debernardis does not suggest that “any consumer who purchase[s] a product that could not legally be sold for any reason”—e.g., because it contains a harmless cooking spice—has thereby acquired a “worthless” product.  Id. (emphasis added).

Again, because the Marrache court found the plaintiff’s claims preempted, it did not have to engage fully with the relationship (if any) between a product’s legality and its “value” for damages purposes.  But with the meteoric rise of the commercial cannabis and CBD industries, that distinction will likely play an increasingly important role in future consumer protection suits.  If so, Mr. Marrache’s ginned-up complaint may be just a taste of the spicier litigation to come.