Greenspoon Marder Hospitality, Alcohol & Leisure Blog: In Vino Veritas-Perhaps Not

Hospitality, Alcohol & Leisure Blog Nov 17, 2021 Miami, FL

Florida Beverage Law is not without odd and outdated statutory provisions. Take Florida Statute 562.455 which was recently tested in federal court.

562.455 Adulterating liquor; penalty.—Whoever adulterates, for the purpose of sale, any liquor, used or intended for drink, with cocculus indicus, vitriol, 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, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

A federal class action lawsuit was filed against world famous Bacardi for the use of the spice “grains of paradise” in its very popular Bombay Gin. Plaintiff’s argued that the inclusion of the spice in Bombay was a violation of the above-mentioned Florida Statute and brought suit under Florida Deceptive and Unfair Trade Practices Act (FDUTPA). The Plaintiff’s argued that both the manufacturer, Bacardi and the retail seller, the supermarket chain of Winn-Dixie engaged in unfair and deceptive practices by selling the product with the spice as an ingredient and in violation of Florida Statute 562.445 and FDUTPA.

Long ago, in 1958 in fact, the Federal Food and Drug Safety Act was amended to include grains of paradise as “generally regarded as safe” or “GRAS” permitting its use in food and drink. Because of this, the Federal District Court disagreed with the Plaintiff and dismissed the complaint, concluding that Federal law preempted Florida law. The federal government found the spice to be GRAS (safe for consumption) and as such was permitted to be used in food and/or beverage.

The Plaintiff appealed to the 11^th Circuit and lost there too. The Circuit Court found that the Plaintiff’s cause of action under FDUTPA failed because they knew just what they were getting. There was no deception…grains of paradise as an ingredient is listed, in fact etched on the bottle of Bombay Gin.

The Plaintiff’s also brought a claim for unjust enrichment. The Circuit Court concluded that this count had no merit either. The Plaintiffs received bottles of gin which had value-it was not worthless due to adulteration as the Plaintiff’s complained. Interestingly, the Plaintiffs drank the gin which aided in the defeat of the unjust enrichment claim and, in this writers, mind may have been the reason this lawsuit was brought in the first place.

Sometimes In “Vino Veritas” is just not the case.

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