Paradise Regained

Bombay SapphireSome months back, I wrote of the lawsuit filed in the state of my boyhood against Bacardi and Winn-Dixie, in which the plaintiff pointed to a provision in Florida law that said that the use of grains of paradise in spirits was illegal.  More properly, the law said that the addition of grains of paradise to spirits was adulteration and it was illegal to sell any liquor so adulterated.

Now, just under six months later, we have an answer (at least a preliminary one) to the pressing claims advanced by the plaintiff.

Late last week the judge in the suit dismissed the plaintiff’s case.  In the order dismissing the case (found here: Dismissal – Bacardi Grains of Paradise suit), the judge pointed to the fact that the Food and Drug Administration had previously determined that grains of paradise was safe for human consumption.  And since federal law generally preempts state law, that meant that the state law on the issue – notably in effect since 1868 – had no effect.  According to the judge – federal law preempts state law on the topic, therefore state law is of no effect – therefore you, Plaintiff, lose.  Paradise regained.

Now I’m not a constitutional scholar.  Far from it, in fact (Con. Law was one of my least favorite subjects in law school).  But if you read the order I think you may find the reasoning leaves a bit to be desired.  The court determines that this is a matter of conflict preemption – where the state law cannot stand because it conflicts with federal law.

But from a purely logical standpoint, you’d be excused if the Court’s analysis left you with indigestion.  The Federal Food, Drug and Cosmetic Act (cited by the Court as the preempting law) does not say that a state cannot ban the use of grains of paradise.  It is simply the case that the FDA, in implementing the requirements of the FFDCA, has determined that grains of paradise are safe.   That doesn’t mean that a state couldn’t say that grains of paradise are nevertheless prohibited within its borders.  We do this all the time – especially in the context of alcohol.  After all, there was a time when the laws of the United States said that it was perfectly legal to sell alcohol within the states so long as the states allowed it.  (Wait – isn’t that the case now?)  If a state decided to go back to the good old days of prohibition and ban the sale of alcohol within its borders, wouldn’t this same Court’s analysis lead you to conclude that the state lacked the authority to pass that law?

 

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