Here are the docs so far in that lawsuit against Bacardi over using grains of paradise in drinks in violation of an archaic 150-year old Florida law over alcohol adulteration.

Kudos to the Miami Herald for the deep dive on the history of the Florida law banning adulteration of alcoholic beverages with grains of paradise. Their article, by David Ovalle gives you the background and history on the use of grains of paradise in drinks, and the movement to bar/ban/prohibit it as well as the historical context for Florida’s oddly specific anti-alcohol adulteration statute:

562.455 Adulterating liquor; penalty.—Whoever adulterates, for the purpose of sale, any liquor, used or intended for drink, with cocculus indicus, vitriol, grains of paradise, opium, alum, capsicum, copperas, laurel water, logwood, brazil wood, cochineal, sugar of lead, or any other substance which is poisonous or injurious to health, and whoever knowingly sells any liquor so adulterated, shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

For those interested in the legal docs filed in the case, we have some, the Amended Complaint, the Motion to Dismiss this lawsuit over the use, in Bombay Sapphire Gin, of grains of paradise, and the Response filed in opposition to Bacardi and the grocery chain Winn-Dixie’s Motion to Dismiss. 

First, the motion to dismiss points out that the complaint alleges that the substance name is etched as an ingredient on the bottle, but fails to assert that the gin contains grains of paradise (an odd statement to make given that if it was advertised on the outside of the gin bottle, but not actually in the drink, there could very well be an actual false advertising lawsuit over the misrepresentations about the contents of the gin – in any event, a FOIA request to the TTB for the formula approval for the gin could resolve this semantic distinction).

If that’s proven, then the premise and a real issue between the plaintiff’s theories utilizing the old law and the use of grains of paradise in alcohol becomes that despite this law, both federal statutes and Florida law recognize grains of paradise as a GRAS (generally recognized as safe) substance for use in food. 21 U.S.C. § 321(f); Fla. Stat. tit. XXXIII, § 500.03(o). So how could adulteration really be proven if the ingredient in the liquor is GRAS? Especially where the deceptive trade practices act at issue has an exception for those acts or practices required or permitted by federal or state law. Mix that with a preemption argument over the apparent conflict between the GRAS FDA regulation and Florida’s old alcohol adulteration law and you’ve got an excellent cocktail for a ruling that will have major preemption implications for the disjointed tension between FDA guidelines and state alcohol laws. 

Briefing should wrap up this week with a decision to follow. 

Ashley Brandt

Hi there! I’m happy you’re here. My name is Ashley Brandt and I’m an attorney in Chicago representing clients in the Food and Beverage, Advertising, Media, and Real Estate industries. A while back I kept getting calls and questions from industry professionals and attorneys looking for advice and information on a fun and unique area of law that I’m lucky enough to practice in. These calls represented a serious lack of, and need for, some answers, news, and information on the legal aspects of marketing and media. I've got this deep seeded belief that information should be readily available and that the greatest benefit from the information age is open access to knowledge... so ... this blog seemed like the best way to accomplish that. I enjoy being an attorney and it’s given me some amazing opportunities, wonderful experiences, and an appreciation and love for this work. I live in Chicago and work at an exceptional law firm, Goldstein & McClintock, with some truly brilliant people. Feel free to contact me at any time with any issues, comments, concerns… frankly, after reading this far, I hope you take the time to at least let me know what you think about the blog and how I can make it a better resource.

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