Fireball maker sued for fraud over drink not containing whiskey

Fireball maker sued for fraud over drink not containing whiskey

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People who buy small bottles of Fireball at their local convenience store may be surprised to learn that they’re not getting the same thing as what comes from the liquor store — and that difference is at the center of a lawsuit in which a customer is suing the maker of both drinks.

Fireball Cinnamon Whiskey, the spiced hot liquor sold in liquor stores, is the drink most people are probably more familiar with. But “Fireball Cinnamon,” which is available at grocery stores, gas stations, and other places that aren’t allowed to sell liquor, is something else. The drink, which debuted in 2020, is actually a whiskey-flavored malt drink; it is sold in small bottles that usually cost 99 cents.

A recent lawsuit against Sazerac, which does both, claims the convenience store version is misleading, because the packaging is almost identical to its boozy older sibling, and you have to read the fine print on the bottle to know it wasn’t just a smaller version of it popular spirits. “The label misleads consumers into believing it is or contains distilled spirits,” according to a class action lawsuit filed by Anna Marquez, an Illinois woman who claims she bought the small bottles assuming they contained whiskey.

Malt beverages are made by fermentation and are often categorized with beer and wine (popular examples include Colt 45 and hard selters). Distilled spirits, such as whiskey, are usually more strictly regulated.

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The lawsuit takes issue with the way the malt beverage version’s label describes the ingredients: “Malt beverage with natural whiskey and other flavors and caramel color.” The lawsuit calls this a “clever twist” intended to trick consumers into thinking the drink contains whiskey and not just a whiskey flavor. Buyers “will believe that the product is a malt beverage with added (1) natural whiskey and (2) other flavors,” the filing states.

The filing cited local news reports about the appearance of what appeared to be mini Fireball whiskey bottles in settings where spirits are not usually sold, underscoring the claim of a common misunderstanding. “You can’t buy wine or other hard liquor in some stores like this, so why is Fireball OK?” wrote a radio personality in the Hudson Valley. “Yeah, it’s convenient for Fireball drinkers, but what about vodka drinkers, or bourbon fans, I’d like to see a Titos display right next to Fireball…LOL!”

The lawsuit, which alleges the company violated state consumer fraud statutes, seeks to cover anyone in Illinois, North Dakota, Wyoming, Idaho, Alaska, Iowa, Mississippi, Arkansas, Kansas, Arizona, South Carolina or Utah who purchased Fireball Cinnamon. It is seeking unspecified statutory and punitive damages, though the filing says the amount is likely to exceed $5 million.

The attorney representing Marquez and others in her class is Spencer Sheehan, a plaintiffs’ attorney known for filing hundreds of class-action lawsuits against food companies. Sheehan is sometimes called the “Vanilla Vigilate” for his litigation over products containing artificial vanilla and not the real thing. His other cases have included one against Frito-Lay for not using enough real lime juice in its “Hint of Lime” Tostitos and another alleging that Kellogg’s Strawberry Pop Tarts contain as much apple and pear as the title fruit.

A representative for Sazerac, the maker of Fireball, said the company would not comment on pending litigation.

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