Tuesday, November 9, 2021

There’s a Problem with My (hic) Bombay Gin

Here’s the setting. Having been invited to a small party, you stop at the Winn Dixie and pick up a bottle of Bombay gin. The party ends up not being as exciting as you had anticipated, so at some point you start reading the contents label on the bottle of gin (apparently between the time you think this might be interesting and when you can no longer focus.) This literary foray leads you to ask “What the heck is ‘grains of paradise’ and what is it doing in a bottle of gin?”

Your buddy does a quick google search and finds out that this is a spice from west Africa that many years ago was thought to be poisonous and could “morph drinkers into suicidal madmen.” By this time the bottle has been drained and you all had a good laugh.

The next morning you have a hazy recollection of the prior evening’s conversation and wonder how this drug ever got into the gin. Being a lawyer, you do a little research and find that an 1858 Florida statute prohibited the use of grains of paradise in alcoholic beverages. The dollar signs go off in your head when you realize that you could make a lot of money based on a technicality.

We do not know if this is exactly how the lawsuit started, but it is probably close enough. Uri Marrache filed a class action against Winn Dixie and Bacardi. The plaintiffs claimed that Bombay violated the archaic statute by including grains of paradise in its liquor and that they were entitled to damages as a result.

Although the allegations were technically correct as far as they went, plaintiffs failed to note that Congress amended the Federal Food, Drug and Cosmetic Act in 1958 and listed grains of paradise as “generally recognized as safe,” giving us the delightful acronym of GRAS. Therefore, since grains of paradise is GRAS, it is can no longer be considered the harmful ingredient identified in the 1858 statute.

Even if there was some sort of conflict between state and federal laws (which the court was easily able to dismiss), plaintiffs had one additional problem: they knew the ingredients before polishing off the bottle. You cannot claim damages without having, well, damages. The lawsuit was dismissed.

Technicalities often matter. But as the Bombay lawsuit demonstrates, finding a technicality is not necessarily enough. Sometimes the GRAS is greener on the defendant's side of the fence.

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