In this case, we argued that states should be allowed to adopt more protective food safety standards than the federal government. A federal appellate court issued a decision making clear that states are not preempted from banning chemicals in foods even if the federal government has determined that such chemicals are generally recognized as safe.

In May 2020, CSPI and other public interest groups submitted an amicus brief in Marrache v. Bacardi U.S.A. Inc., a case on appeal with important food safety implications. In the brief, the groups argued that states should be allowed to adopt more protective food safety standards than the federal government.

The Underlying Case

Marrache is a class action lawsuit alleging that Bacardi sold its Bombay Sapphire Gin illegally in Florida because the gin contains “grains of paradise,” an ingredient prohibited to be added to liquor under Florida law. The district court dismissed the lawsuit because FDA has determined that “grains of paradise” may be safely added to foods and beverages. That decision was appealed to the Court of Appeals for the Eleventh Circuit.

The Eleventh Circuit Brief

Although CSPI and the other public interest groups took no position on the safety of grains of paradise, we urged the Eleventh Circuit to reject the district court’s reasoning because it would harm consumers by prohibiting states in other contexts from passing stricter food safety requirements than the federal government. This is particularly important because the federal government’s safety review of food additives, like grains of paradise, is often extremely limited, and in some cases, non-existent. Indeed, FDA permits companies to self-certify substances as safe without any notice to the agency or the public.

The Eleventh Circuit Decision

In November 2021, the Eleventh Circuit issued a decision concluding, as we had urged in the amicus brief, that the Florida law was not preempted because there was no conflict between that law and federal law. The decision makes clear that states are permitted to ban chemicals in foods even if the federal government permits their use. The Court affirmed the dismissal with prejudice of the case because it found that the plaintiff and the class could not allege causes of action under the Florida Deceptive and Unfair Trade Practices Act and unjust enrichment for reasons unrelated to the preemption issue.

Status: Closed

Outcome: Eleventh Circuit held states are not preempted from banning chemicals in foods even if the federal government has determined that such chemicals are generally recognized as safe

Amici: CSPI, Center for Food Safety, Clean and Healthy New York, Environmental Defense Fund, and Environmental Health Strategy Center

Counsel: Earthjustice

Jurisdiction & Case Number: 20-cv-10677 (11th Cir.)