CopyPublished | Court of Appeals for the Eleventh Circuit
...en-
richment based on the purchase of Bombay Sapphire Gin contain-
ing grains of paradise by Marrache and the other class members.
Marrache claimed that the inclusion of grains of paradise in Bom-
bay Sapphire Gin was in violation of Florida Statute § 562.455.
This appeal asks us to resolve four issues: (1) whether sec-
tion 562.455 is preempted by federal law, i.e., the Food Additives
Amendment of 1958 (the “Food Additives Amendment”), Pub....
...32
20-10677 Opinion of the Court 3
unjust enrichment against Defendants; and (4) whether the district
court abused its discretion in dismissing the amended complaint
with prejudice. While we conclude that section 562.455 is not
preempted by the Food Additives Amendment to the FFDCA, we
nonetheless affirm the district court’s order dismissing Marrache’s
amended class action complaint with prejudice....
...who have purchased Bombay.” Marrache asserted claims against
Defendants under FDUTPA and for unjust enrichment based on
the fact that he and the other class members had purchased Bom-
bay containing grains of paradise, which he claimed was in viola-
tion of Florida Statute § 562.455....
...acts or practices, and unfair or deceptive acts or practices in the
conduct of its trade or commerce” by adulterating Bombay with
grains of paradise and then knowingly selling it to Marrache and
the other class members in violation of Florida Statute §
562.455
and Florida Statute §§
500.04(1)–(3)....
...itted
by federal or state law. See Fla. Stat. §
501.212. Defendants further
argued that Marrache failed to state a claim for unjust enrichment.
Additionally, Defendants contended that the Food Additives
Amendment, which amended the FFDCA, preempted section
562.455, as the Food and Drug Administration (“FDA”), pursuant
to the rule-making authority delegated to it by Congress under the
Food Additives Amendment, had expressly identified grains of par-
adise as a substance “generally recognized as safe” (“GRAS”) in 21
C.F.R. § 182.10. As such, Defendants argued that because federal
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6 Opinion of the Court 20-10677
and state law conflicted, section
562.455 was preempted by federal
law. Marrache opposed Defendants’ motion to dismiss. 1
In its order granting Defendants’ motion to dismiss, the dis-
trict court found that the Food Additives Amendment preempted
Florida Statute §
562.455. The district court considered the Food
Additives Amendment’s legislative history and explained that sec-
tion
562.455 frustrated the FFDCA’s purpose because the federal
statute “seeks to advance food technology by allowing the use of
safe food additives, and the antiquated Florida statute prohibits the
use of an additive that has been found to be general...
...III. ANALYSIS
On appeal, Marrache contends that the district court erred
for several reasons. First, Marrache argues that the district court
erred in finding that the Food Additives Amendment to the FFDCA
preempted section 562.455, Florida Statutes....
...opportunity to amend. We address these arguments in turn.
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20-10677 Opinion of the Court 9
A. Whether Federal Law Preempts Florida Statute § 562.455
Marrache argues that the district court erred in determining
that section 562.455 was preempted by the Food Additives Amend-
ment to the FFDCA. We agree.
In 1868, the Florida Legislature enacted section 562.455,
which provides in relevant part:
Whoever adulterates, for the purpose of sale, any liq-
uor, used or intended for drink, with ....
...404 (Jan. 19, 1960).
Marrache argues that the district court erred in finding that
the Food Additives Amendment grants the FDA broad regulatory
authority to control the introduction of food additives into inter-
state commerce and that, as such, section 562.455 is preempted by
the Food Additives Amendment and its implementing regulations.
Specifically, he asserts that the FDA’s authority under the Food Ad-
ditives Amendment “is quite narrow and focused - - it is to keep
unsafe food addit...
...other conclusion, or that the Congress has unmistakably so or-
dained.” Nat’l Ass’n of State Util. Consumer Advocs. v. FCC,
457
F.3d 1238, 1252 (11th Cir. 2006) (quoting Fla. Lime,
373 U.S. at 142).
Here, the district court determined that federal law
preempted section
562.455 based on conflict preemption because
section
562.455 frustrated the purposes and objectives of the Food
Additives Amendment and its implementing regulations. We con-
clude, however, that section
562.455 is not preempted by the Food
Additives Amendment and its implementing regulations because
no conflict exists between federal and state law.
First, Defendants have failed to show how compliance with
the Food Additives Amendment and its implementing regula-
tions—federal law—and section
562.455—state law—would be a
physical impossibility....
...grains of paradise in
Florida while selling Bombay with grains of paradise in other states.
Thus, we find no physical impossibility preventing Defendants’
compliance with both federal law permitting grains of paradise to
be included in alcohol and section 562.455 banning the inclusion of
grains of paradise in alcohol sold in Florida....
...out neglecting any obligations under federal law”).
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20-10677 Opinion of the Court 17
Second, Defendants failed to demonstrate that section
562.455 frustrates Congress’s purpose in enacting the Food Addi-
tives Amendments....
...was to “establish a national repository of safe ingredients upon
which consumers and manufacturers could rely” and “to prevent
rules that unnecessarily prohibit access to safe food ingredients.”
We decline Defendants’ invitation to find section 562.455
preempted based on this legislative history....
...at 1907–08.
Congress’s purpose in enacting the Food Additives Amend-
ment—as derived from the statutory text—was to prohibit unsafe
food additives from being included in food and alcohol to protect
the health and safety of the public. Section 562.455, which bans the
USCA11 Case: 20-10677 Date Filed: 11/08/2021 Page: 19 of 32
20-10677 Opinion of the Court 19
adulteration of alcohol with grains of paradise, does not frustrate
that purpose, even if the FDA has determined that grains of para-
dise is GRAS. We therefore conclude that section 562.455 is not
preempted by the Food Additives Amendment and its implement-
ing regulations because no conflict exists between federal and state
law.
While we conclude that the district court erred in its reason-
ing for granting the d...
...FDUTPA’s Safe Harbor Provision
In his FDUTPA claims, Marrache alleged that Defendants
had “engaged in unfair methods of competition, unconscionable
acts or practices, and unfair or deceptive acts or practices in the
conduct of its trade or commerce” by adulterating Bombay with
grains of paradise, in violation of section
562.455, and then know-
ingly selling it to Marrache and the other class members in viola-
tion of section
500.04(1)–(3), which prohibits (1) the “manufacture,
sale or delivery, holding or offering for sale of any food that is adul-
terated,” (2) the adulteration of any food, and (3) the receipt in
commerce of any food that is adulterated. Marrache contends that
Defendants’ violations of sections
562.455 and
500.04 serve as pred-
icates for his FDUTPA claims under section
501.203(3)(c), even
though neither statute contains any language expressly stating that
it qualifies as a FDUTPA violation....
...Marrache further argues that
he has alleged “actual damages,” as he and the other class members
suffered actual damages by purchasing an illegal product—Bom-
bay—that is “worthless” from Defendants. Below, the district
court found that Marrache had not sufficiently alleged actual dam-
ages because section
562.455 was preempted by federal law,
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20-10677 Opinion of the Court 23
making it legal for Defendants to sell Bombay containing grains of
paradise, and that, as such, the Bombay was not “worthless.”
Here, we need not decide whether violations of sections
562.455 and
500.04 proscribe unfair, deceptive, or unconscionable
acts or practices that qualify as FDUTPA violations because Mar-
rache’s claims against Defendants fall under FDUTPA’s safe harbor
provision....
...practice required or specifically permitted by federal or state law.”
(emphasis added). Thus, an act specifically permitted by federal
law cannot serve as the basis for a FDUTPA claim. While the Food
Additives Amendment and its implementing regulations do not
preempt section 562.455, the FDA has issued regulations determin-
ing that grains of paradise are designated GRAS pursuant to its au-
thority under the Food Additives Amendment....
...retain the benefit as [Marrache] did not receive what [he] bargained
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30 Opinion of the Court 20-10677
for: to wit a product which did not violate [sections
562.455 and
500.04(1)–(3)]” and that Defendants were unjustly enriched. In its
order, the district court found that Marrache failed to state a claim
for unjust enrichment because section
562.455 was preempted by
federal law and the Bombay therefore was not worthless.
Although section
562.455 is not preempted under federal
law, we conclude that the district court did not err in finding that
Marrache failed to state a claim for unjust enrichment....
...successfully sought a refund for or complained about the Bombay,
or (3) suffered any side effect, health issue, or harm from consum-
ing the Bombay containing grains of paradise. Rather, Marrache
alleged that the Bombay was “worthless” based on section
562.455’s prohibition of the adulteration of alcohol with grains of
paradise, a product which he claims that he and the other class
members did not “bargain[] for.” As alleged by Marrache in his
amended complaint, however, potential pur...
