The lawsuit alleges that Sazerac – makers of spirits favorites like Pappy Van Winkle and Buffalo Trace – is committing fraud by marketing similar-looking mini bottles of malt-based “Fireball Cinnamon” in supermarkets and conveniences stores in an attempt to make “Fireball Cinnamon Whisky” lovers think they’re getting the same alcohol-based version they buy at liquor stores. And at $.99 a pop, Fireball has done so well, it’s reportedly become Sazerac’s biggest-selling product by volume and revenue.
"People associate the Fireball Cinnamon with whisky… by selling [a] Fireball Cinnamon product that is a malt-based beverage with a drop of whiskey flavor, that's deceptive," Spencer Sheehan, a lawyer with Sheehan & Associates, P.C, the firm handling the case, told FOX Business.
When is an “alcoholic beverage” an actual alcoholic beverage?
If intentional, creating marketing confusion is a crafty move hoisted on consumers who don’t think twice about reading the ingredients or asking why they can buy “alcoholic beverages” in places where those products shouldn’t be legally available in, like a gas station.
However, there’s gold in those added distribution points and companies are incubating a bumper crop of brand and malt-based marriages to try and get brand variations past states’ restrictions on retailing liquor.
As with shrinkflation that consumers are facing these days, you have to pick up a product and take a hard look at the label because in those details is where the devil is.
To start with, the difference between the two Fireballs can be found in the ABV (alcohol by volume). The original weighs in at 66 proof (33% alcohol), and its offspring at 33 proof (16.5% alcohol).
Sticking with the labeling issue, the lawsuit further argues that the “non-whisky” bottles appear identical but for the word “Whisky” on the front label, “which most purchasers seeking alcohol will not even detect,” the plaintiffs allege. Then, there’s the small print on the label that says it has “natural whisky and other flavors and caramel color.”
It’s evident that attorneys suing Sazarec are looking at this situation from the consumer’s point of view. They claim that using the words “With Natural Whisky & Other Flavors” is a clever way of pitching the product because if a consumer goes to the trouble to try and decipher how “Natural Whisky” is distinct from “Other Flavors,” they will think Fireball Cinnamon is a malt beverage with added natural whisky and other flavors.
“What the label means to say is that the Product contains ‘Natural Whisky Flavors & Other Flavors,’ but by not including the word ‘Flavors’ after ‘Natural Whisky,’ purchasers who look closely will expect the distilled spirit of whisky was added as a separate ingredient,” the suit charges.