On October 14, 2019, Plaintiff filed an amended complaint in state court alleging that Bacardi USA Inc. and Winn-Dixie Supermarkets Inc. (“Defendants”) produced and sold a liquor which contained an additive known as “grains of paradise,” a peppery spice originally found in West Africa.  The lawsuit alleged that a 150-year-old Florida statute renders it illegal to produce, and or sell liquor, which contains grains of paradise.  The antiquated statute was passed during an era when some people believed the spice was a poisonous drug that could lead drinkers to suicide.

Defendants removed the case to the U.S. District Court for the Southern District of Florida where they argued that federal regulators explicitly categorize “grains of paradise,” as a spice that is safe for consumption.  The U.S. Food and Drug Administration has expressly found that grains of paradise are generally recognized as safe for human consumption as a spice and flavoring and has placed no limit on how much can be used.  Defendants also stated that the plaintiff did not show he had suffered any actual injury as a result of buying or drinking the liquor, which contained the grains of paradise.

U.S. District Judge Robert N. Scola Jr. stated that that because the Federal Food, Drug, and Cosmetic Act (FDCA) allows the “grains of paradise” that the plaintiff takes issue with, the 1868 Florida statute prohibiting them is preempted.  In its order, the Eleventh Circuit noted that plaintiff’s claims were preempted under the doctrine of conflict preemption” because the Florida statute prohibiting the adulteration of a liquor product with grains of paradise, “frustrates the purposes and objectives” of the FDCA, “and its implementing FDA regulations, which establish that grains of paradise is generally regarded as safe.” Moreover, the court concluded that the plaintiff did not allege any “actual damages.” As such, Judge Scuola dismissed the lawsuit on January 28, 2020, which the plaintiff appealed to the Eleventh Circuit.

In its appeal to the Eleventh Circuit, plaintiff argued that just because the additive has been deemed safe does not mean it must be legally permitted to be sold.  Plaintiff also claimed that the Food Additives Amendment to the FDCA, is meant to prohibit unsafe food additives from entering the market and is not meant to ensure that all food that is deemed safe enters the market.  We will continue to monitor any developments.