Briefing complete in distiller’s state food safety vs. federal regulatory allowance preemption suit over grains of paradise used in Bacardi’s Bombay Sapphire gin. Bonus: we’ve got the briefs for you.

A beef in Florida over an ancient state food purity law’s right to beat out a federal regulation allowing the banned ingredient (grains of paradise) is coming to an appellate conclusion. Briefly, 

the appeal involves a recent preemption win that Bacardi had when a consumer brought suit against Bacardi based on a 150-year-old law on Florida’s books regarding some compounds and ingredients that, prior to decent Federal regulation and at a time when little was known about such compounds, declared different substances, including grains of paradise, adulterants and banned their use in liquor. 

You will recall with amusement, the district court’s pronouncement in resolving this matter in favor of the distillery:

“Numerous class actions have greatly benefited society such as Brown v. Board of Education, In re Exxon Valdez, and In re Agent Orange Product Liability Litigation. This is not one of those class actions.”

Here is the blog entry we did on the distillery’s win along with links to important in-depth reporting on the case by the Miami Herald.

The final filing, the reply brief filed by the plaintiff against the distiller is here.

You can find all the other briefs in our piece from back in June covering the briefing up to that point.

You’ll note that the reply brief misses the mark on both the assumption that the federally permitted list – the GRAS – generally recognized as safe – does not stop states from prohibiting the use of those substances – wholly avoiding the preemption arguments made in the distillery’s brief. The argument is a simple one – that a federal allowance of broad behavior does not preempt state restrictions of narrow and more specific instances of that behavior. Which rather turns preemption on its head. Under the plaintiffs theory, any time a state wanted to prohibit a federally authorized behavior, the law the state passed would be valid so long as it just narrowed the behavior to greater detail. For instance, a federal law allowing manufacture and sale of beer would not preempt a state law prohibiting pumpkin beers.

Also, you’ll see that the consumer’s arguments regarding the Federal regulations and statutory authority about the production and transportation of alcohol and their interplay with the twenty-first amendment are written with little acknowledgment of the history and current trends regarding that litigation – rather the brief attempts to cherry-pick quotes out of context and proffers them as blackletter law. Which they are not. Far from it. Many attorneys looking to score points without considering the nuanced arguments taking place in the Supreme Court mistakenly argue in this fashion. It is frustratingly exacerbated by appellate court decisions that also cite to similar dicta for no reason other than an attempt to bolster their own pronouncements – for instance, claiming that the Twenty-First Amendment “grants the States virtually complete control over whether to permit importation or sale of liquor . . .” and citing 324 Liquor for that proposition because you want to argue that no state laws should be preempted when it comes to liquor completely ignores the context of that statement in the 324 Liquor Corp. case which is basically, that a state has a choice of all or nothing when it comes to liquor and once it chooses liquor, its rights are subject to constitutional restrictions and interplay – don’t believe me – here’s the whole quote:

“Section 2 of the Twenty-first Amendment reserves to the States the power to regulate, or prohibit entirely, the transportation or importation of intoxicating liquor within their borders. Section 2 “grants the States virtually complete control over whether to permit importation or sale of liquor and how to structure the liquor distribution system.” … The States’ Twenty-first Amendment powers, though broad, are circumscribed by other provisions of the Constitution. See Larkin v. Grendel’s Den, Inc., 459 U.S. 116, 122, n. 5 (1982) (Establishment Clause); Craig v. Boren, 429 U.S. 190, 204-209 (1976) (Equal Protection Clause); Wisconsin v. Constantineau, 400 U.S. 433, 436 (1971) (procedural due process); Department of Revenue v. James Beam Co., 377 U.S. 341, 345-346 (1964) (Export-Import Clause). Although § 2 directly qualifies the federal commerce power, the Court has rejected the view “that the Twenty-first Amendment has somehow operated to `repeal’ the Commerce Clause wherever regulation of intoxicating liquors is concerned.” Hostetter v. Idlewild Liquor Corp., 377 U.S. 324, 331-332 (1964). Instead, the Court has engaged in a “pragmatic effort to harmonize state and federal powers.” Midcal, supra, at 109. The question in each case is “whether the interests implicated by a state regulation are so closely related to the powers reserved by the Twenty-first Amendment that the regulation may prevail, notwithstanding that its requirements directly conflict with express federal policies.” Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 714 (1984).

Seriously, tiresome argumentation like that undertaken in this reply brief doesn’t just stall progress for actual discussion of legal issues of merit – it actually mischaracterizes the law.

We will let you know as soon as the oral argument is set.

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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