Consumers have filed a class action lawsuit against spirits giant Sazerac claiming the company’s malt-based Fireball Cinnamon has misled them because it lacks the whisky base of its parent brand, Fireball Cinnamon Whisky.
“When viewed together with the Fireball distilled spirit brand name, the label misleads consumers into believing it is or contains distilled spirits,” class action lawyer Spencer Sheehan wrote on behalf of the plaintiffs.
The lawsuit was filed on behalf of Chicago resident Anna Marquez and “all others similarly situated” in the U.S. District Court of the Northern District of Illinois on January 7. The product in question, Fireball Cinnamon, is a flavored malt beverage (FMB) that contains “natural whisky and other flavors and caramel color,” according to its label. The FMB is 16.5% ABV, half the strength of spirits-based Fireball (33% ABV).
“Using the words ‘with natural whisky & other flavors’ is a clever turn of phrase because consumers who strain to read this will see how it [‘natural whisky’] is distinct from ‘other flavors,’” Sheehan wrote. “They will think the product is a malt beverage with added (1) natural whisky and (2) other flavors.”
Fireball Cinnamon is sold in 50 mL bottles with a suggested retail price of $0.99. Its label features branding nearly identical to Fireball Cinnamon Whisky.
As an FMB, Fireball Cinnamon has greater market access than traditional Fireball Cinnamon Whisky and can be sold in grocery, convenience, mass retail stores and gas stations in much of the country. Last year, the product’s dollar sales at multioutlet grocery and convenience stores reached $90.9 million, a 151.4% increase over the previous year, according to market research firm IRI.
In fact, Sazerac has sold so much Fireball Cinnamon that it has become the 21st largest beer category vendor in IRI-tracked off-premise channels. Fireball Cinnamon itself is now a top 100 brand in the beer category, and accounts for 89% of Sazerac’s $101.9 million in beer category off-premise sales, according to IRI.
Marquez, the lead plaintiff, “expected the Fireball Cinnamon was whisky and/or contained whisky in a non-de minimis amount” and “paid more for the product than she would have had she known the representations and omissions were false and misleading, or would not have purchased it,” Sheehan wrote.
Because Marquez frequently purchased Fireball Cinnamon at retailers in Niles, Illinois, the lawsuit claims Sazerac violated the Illinois Consumer Fraud and Deceptive Business Practices Act, alleging Marquez suffered damages she would not have “if the true facts had been known.”
Other allegations include violation of state consumer fraud acts in North Dakota, Wyoming, Idaho, Alaska, Iowa, Mississippi, Arkansas, Kansas, Arizona, South Carolina and Utah, for which a separate class of plaintiffs has been set up; breaches of express warranty, implied warranty of merchantability/fitness for a particular purpose and the Magnuson Moss Warranty Act; negligent misrepresentation; fraud; and unjust enrichment.
The plaintiffs are seeking a jury trial; preliminary and permanent injunctive relief; monetary, statutory and/or punitive damages and interest; attorney and expert fees; and other costs and expenses.
Class action lawsuits filed against beverage-alcohol producers have become common in recent years, McDermott, Will & Emery partner Alva Mather warned in a November webinar. Typically, lawyers will sue on behalf of consumers who claim to have been misled into purchasing a product via “some type of false or misleading statement, or imagery on the product.”