Trouble in Paradise for Bacardi and Wynn Dixie Over New FDUTPA Class Action
Eighty-six years after the repeal of Prohibition, Bacardi USA and Winn-Dixie are facing a putative class action predicated on Florida Statute Section 572.455, a 150 year-old remnant of the temperance movement. In Uri Marrache v. Bacardi USA, Inc., et al., Case No. 2019-023668-CA-01 (Miami-Dade Cir. Ct. Aug. 9, 2019), Plaintiff alleges that Bombay Sapphire gin, a Bacardi product sold at Winn-Dixie, is “adulterated” with grains of paradise in violation of Section 572.455 and Florida’s Deceptive and Unfair Trade Practices Act (“FDUTPA”).
Grains of paradise are the seeds of an African plant in the ginger family, known as Aframomum melegueta. They are ground and used as a spice akin to cardamom, with a citrusy black pepper taste. Florida Statute Section 562.455 states that, “[w]hoever adulterates for the purpose of sale, any liquor, used or intended for drink with . . . grains of paradise. . . 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[.]”
Bombay Sapphire boasts that “every drop” of its gin “contains ten hand-selected botanicals from exotic locations around the world.” These botanicals, which apparently include grains of paradise, are, however, vapor infused into the gin during the distillation process; they never come into physical contact with the liquid spirit. This raises the question of what constitutes “adulteration” for purposes of § 572.455.
According to Merriam Webster, to adulterate means “to corrupt, debase, or make impure by the addition of a foreign or inferior substance or element.”
The case law provides little guidance. The only two recorded opinions citing to Section 562.455 as a basis for liability are from 1939 and 1940 and involve a single incident of premeditated murder through the intentional poisoning of liquor with cyanide—a far cry from the conduct Plaintiff alleges against Bacardi and Winn-Dixie. See Coston v. State, 139 Fla. 250 (Fla. 1939); Coston v. State, 144 Fla. 676 (Fla. 1940).
Plaintiff, on behalf of “all persons in the State of Florida who have purchased Bombay Sapphire Gin,” alleges that Bacardi’s “adulteration” of Bombay Sapphire with grains of paradise and Bacardi and Winn-Dixie’s sale of the “adulterated” gin is “unconscionable,” and therefore constitutes a per se violation of FDUTPA. Complaint at ¶ 35. But Plaintiff pleads no facts supporting its claims of “unconscionability.”
The complaint, which contains allegations that seem to harken back to the laments of the temperance movement, alleges that grains of paradise is known for its “warming and digestive characteristics,” and in some parts of the world, is used medicinally to treat impotence and terminate unwanted pregnancies.
Id. ¶ 35-36. Indeed, raw grains of paradise are widely available for purchase and use in everyday cooking and home use. This alone seems to contradict the suggestion that the mere infusion of alcohol with grains of paradise is harmful, let alone “unconscionable.” While we will have to see what the Court ultimately does with this alleged “adulteration” case, Plaintiff will likely face substantial hurdles in attempting to prove the so-called “unconscionability” of Bombay Sapphire’s infusion with grains of paradise, much less any damages flowing therefrom.