There’s No Whisky in this Mouthwash?!

It turns out that the candy flavored booze at the grocery store isn't even bourbon.

WaPo (“Mini bottles of Fireball aren’t actually whiskey, leading to a lawsuit“):

People buying small bottles of Fireball at their local convenience store might be surprised to learn that they’re not getting the same as the stuff that 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 beverages.

“Fireball Cinnamon Whisky,” the spicy-hot booze 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 are not permitted to sell liquor, is something else. The drink, which debuted in 2020, is actually a malt beverage flavored to taste like whiskey; it’s sold in small bottles that usually go for 99 cents.

recent lawsuit filed against Sazerac, which makes both, claims that the convenience-store version is misleading, because the packaging is almost identical to its boozy older sibling, and one would have to read the very fine print on the bottle to know that it wasn’t just a smaller version of the popular liquor. “The label misleads consumers into believing it is or contains distilled spirits,” according to a class-action lawsuit brought by Anna Marquez, an Illinois woman who claims she purchased 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 seltzers). Distilled spirits, like whiskey, are typically more tightly regulated.

This report and several others I’ve seen use a stock image of Fireball such as that atop the post. It clearly says “Whisky” right there on the label! So if it doesn’t have whisky in it, it must be a scam, right?

It turns out that, no, the convenience store variant has a different label:

It doesn’t say “Whisky” at all. And it says “malt beverage” right there on the front!

I’m actually torn on this one. On the one hand, those of us who live in states where liquor can only be purchased in state-owned stores should know damn well that they’re not getting liquor at the Stop N Shop. On the other, Sazerac sure isn’t going out of its way to clue consumers in that this isn’t the standard “Fireball” product. Indeed, I’d go so far as to say that they’re being intentionally deceptive here.

Still, this strikes me as yet another in a long line of frivolous lawsuits of the Barilla pasta isn’t even made in Italy! variety. People buying 99 cent bottles of mouthwash-flavored booze aren’t typically whisky connoisseurs and the harm suffered here is negligible, indeed.

Even worse, they’re not even making the defensible claim that the near-identical labels are confusing. Rather:

The lawsuit takes issue with the way the malt-beverage version’s label describes its ingredients: “Malt Beverage With Natural Whisky & Other Flavors and Carmel Color.” The lawsuit calls this a “clever turn of phrase” meant to trick consumers into thinking the drink contains whiskey and not just a whiskey flavoring. Shoppers “will think the Product is a malt beverage with added (1) natural whisky and (2) other flavors,” the filing says.

I mean . . . come on.

The filing cited local news stories about the appearance of what seemed to be mini Fireball whiskey bottles in settings where liquor isn’t usually sold, underscoring its claim of a common misconception. “You can’t buy wine, or any other hard liquor at any stores like this, so why is Fireball OK?” one Hudson Valley radio personality wrote. “Yes it’s convenient for Fireball drinkers, but what about vodka drinkers, or bourbon fans, I want to see a Tito’s display right next to the Fireball … LOL!”

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

Here’s the thing: to the extent this suit is successful, the only ones getting anything out of it are the lawyers. Those who join the class having suffered the harm of drinking mouthwash-flavored beer rather than mouthwash-flavored diluted whisky will get, what, a few cents each?*

The lawyer representing Marquez and others in her class is Spencer Sheehan, a plaintiff’s attorney famous for filing hundreds of class-action lawsuits against food companies. Sheehan is sometimes called the “Vanilla Vigilate” for his litigation over products that contain 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 just as much apple and pear as they do the titular fruit.

These suits give American tort law a bad name. There are consumers suffering genuine harm from shoddy and deceptive business practices. But nobody is buying Pop-Tarts and Tostitos shocked that they’re not healthy.

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*UPDATE: Following up on the “Vanilla Vigilate” [sic] link thanks to a comment on another post, I see this:

While Sheehan may argue that he’s standing up for the little guy, he’s the one who usually gets paid. The $2.6 million settlement with Blue Diamond, for instance, awards $1 per item with proof of purchase and 50 cents per item without to consumers who bought the products between April 15, 2014, and May 17, 2021. According to ATRA, Sheehan’s firm could receive as much as $550,000 for its fees from the settlement.

FILED UNDER: Economics and Business, Law and the Courts, , , , , , , , , , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. HarvardLaw92 says:

    She isn’t really behind the lawsuit. She’s simply the enabler for his lawsuit, which amounts to little more than greenmail (which this guy and others like him have turned into a cottage industry). They’ll pay him to go away and she’ll receive a tiny piece for being the lead plaintiff. For what it’s worth, the rest of us detest these bottom feeders.

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  2. Kathy says:

    Lawsuit aside, I think you give people too much credit.

    The labels are similar enough to mistake one product for the other. And you’d be surprised how many people aren’t aware of local ordinances, such as whether a kind of store can or cannot sell liquor.

    Walgreens’ generic over the counter drugs are not only placed next to their brand name counterparts, but usually use the same color scheme. I’m willing to bet lots of people take the generic thinking it’s the brand name and don’t even notice.

    Besides, how often does one read the print in familiar packaging?

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  3. Michael Cain says:

    @Kathy:

    Walgreens’ generic over the counter drugs are not only placed next to their brand name counterparts, but usually use the same color scheme. I’m willing to bet lots of people take the generic thinking it’s the brand name and don’t even notice.

    Take, probably. As for purchasing, it seems difficult to confuse the box that says “Tylenol” in large letters and costs $10.00 with the one that says “Acetaminophen” and costs $6.50, despite the similar color schemes.

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  4. gVOR08 says:

    Feeling nit-picky I checked the quoted article and this is in the WAPO original. No matter how sleazy he is, I doubt anyone but WAPO has ever called Sheehan the “Vanilla Vigilate”. (Spell check didn’t get it because, to my surprise, “vigilate” is a word, albeit “obsolete or nonstandard” and even the big boys don’t proofread anymore.)

    And this is why many of us weren’t very sympathetic to the ex-postal worker who drew so much comment in James’ Tab Clearing post yesterday. I see James just posted a follow up, quoting Ian Millhiser’s pretty good explanation in VOXyesterday. James went a little deeper than Millhiser in a very good discussion of the situation. There’s a whole industry of conservative legal entrepreneurs out there, just as sleazy as Sheehan, salivating over the prospect of the Supremes overturning Hardison. They’ll have a field day litigating the rights of the religious, and by pure coincidence almost exclusively Christian, clients they’ll be eagerly searching for. Including the deeply held, but newly recognized in the case of military personnel objecting to vaccines, religious principle of “I donwanna”.

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  5. HarvardLaw92 says:

    On the other hand, this guy has been on a losing streak lately at the hands of judges utilizing their discretion to determine that the challenged verbiage / labeling is not misleading as a matter of law and dismiss the complaints. The federal judiciary clearly seems to have had enough of this clown. Hopefully he will get the message.

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  6. Kathy says:

    @Michael Cain:

    How about “aspirin”?

    The other thing is maybe if people see the generics in the same color scheme as the brand names, they figure both must be as good.

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  7. @Kathy: Aren’t they all chemically the same? If I buy Ibuprofen or Advil, does it matter? (At least in the context of this story, the comparison is off).

    And did you know that “Aspirin” used to be a brand name? (Or is that your point)?

    Amusingly, “Heroin” was a brand name as well–same company (Bayer).

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  8. Kathy says:

    @Steven L. Taylor:

    Aren’t they all chemically the same?

    Do not forget Kathy’s First Law: It’s not that simple.

    All aspirin contains acetylsalicylic acid, the active ingredient, and a carrier vehicle of sorts, usually a pill. That’s as true for Bayer as for the store brand. But the purity of the compound may vary between that of a reputable brand and an unknown manufacturer. There may be other quality issues as well.

    Of course, few people have the knowledge and experience to test such things, and fewer do any tests on the medicines they buy. So it comes down to trust. In the case of a generic, do you trust the store selling it to screen and review makers of their store brands for safety and efficacy?

    Walgreens has been around for a long time, and I don’t recall hearing about their store brand OTC drugs causing problems. So it’s probably safe to trust them (big exception if they were to offer blood analyses again).

    Me, personally, I’ll buy OTC generics if they are priced lower. With some exceptions. Tums, for example, are easier to chew, and they dissolve faster than most OTC antacid tablets I’ve tried. Both are calcium carbonate, and both are effective. One is more convenient, but costs more.

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  9. Michael Cain says:

    @Kathy:

    Walgreens has been around for a long time, and I don’t recall hearing about their store brand OTC drugs causing problems. So it’s probably safe to trust them (big exception if they were to offer blood analyses again).

    At least for US markets, generics of both OTC and prescription drugs are required to meet the same FDA production standards as the originals. This is one of the reasons for the ongoing generics crisis, ie, lack of availability. Unless the market is big enough, it’s not worth the cost for a (generally foreign, these days often Indian or Chinese) drug manufacturer to get certified for US sales.

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  10. Just nutha ignint cracker says:

    that they’re being intentionally deceptive here.

    Only to the extent that one thinks that people shouldn’t need to actually read labels. Though, I guess it might be a shock to expect to be drinking something that is 40 proof or higher and discover that it’s about 8% ABV instead.

    But shouldn’t the $0.99 price be a clue there?

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  11. James Joyner says:

    @Just nutha ignint cracker: I mean, the labels are exactly the same to the casual observer. If I hadn’t seen the story, I would certainly presume it was “genuine” Fireball—although I would wonder why it was available outside an ABC store. And, no, 99 cents is the going rate for the whisky-based version as well.

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  12. BugManDan says:

    @James Joyner: ABC Store is the defense for every state that has them. Everyone in these states know that you can’t get liquor in a store without the red dots.

    Of course, anyone over 21 that still drinks Fireball may not actually know what red or a dot look like.

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  13. JKB says:

    @Kathy: But the purity of the compound may vary between that of a reputable brand and an unknown manufacturer. There may be other quality issues as well.

    Of course, few people have the knowledge and experience to test such things, and fewer do any tests on the medicines they buy. So it comes down to trust.

    That is the very reason and justification for the FDA. And inspection program in USDA. If there is evidence they are no longer doing their basic job, perhaps we should campaign to have them abolished since they are violating there establishing legislation and therefore unlawful.

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  14. Gustopher says:

    People who design deliberately misleading packaging should just be beaten to death. If we are feeling generous, just cut off their fingers so they cannot hold a pen, mouse or stylus, and have them neutered in case there is a genetic predisposition that carries onto future generations.

    I am unsure of whether we should cull any living children they have.

    My target of wrath is the “Just Mayonnaise” folks who market their vegan shit spread with an outline of an egg on the bottle, and get their shit placed in stores with the mayonnaise rather than the weird vegan shit.

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  15. James Joyner says:

    @Gustopher: With regard to spirits, I find it annoying that flavored whiskeys and Southern Comfort are often (usually) in the bourbon section even though they are decidedly not bourbon. That could easily confuse the uninitiated and, worse, turn them off bourbon.

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  16. wr says:

    Anyone who sets out to buy Fireball “whiskey” deserves whatever happens to them.

    For years it was the drink of choice after graduation of our newly minted MFAs (both for the grads and their friends in the student body), and the morning after they all looked like extras from The Walking Dead. I can’t imagine that Absinthe at its wormwood worst caused this kind of damage.

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  17. Flat Earth Luddite says:

    @Just nutha ignint cracker:
    @James Joyner:

    Saw this at the local Winco last night – I was surprised to note that it was 42 proof (21% alcohol). But at that, given the choice between drinking fireball or nyquil (or for that matter, the grapefruit slash we drank in the joint), ima opting for…well…abstenence.

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  18. Ken_L says:

    @James Joyner: Sazarac could find themselves in more legal trouble soon. Fireball Cinnamon “Whisky” isn’t even whisky according to many countries’ food labelling standards. It’s 33% ABV. Australia requires at least 37% before spirits can be sold as rum, brandy, whisky etc. I believe the equivalent EU rule is 40%.

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  19. Mister Bluster says:

    @JKB:…If there is evidence

    Bring it on.

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  20. @Kathy:

    That’s as true for Bayer as for the store brand. But the purity of the compound may vary between that of a reputable brand and an unknown manufacturer.

    I mean, sure?

    But are you suggesting that there is some likely difference between Advil and the Kirklands’ ibuprofen? Of CVS’s or Walgreens’?

    I am not so sure it isn’t that simple in these cases?

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  21. Jen says:

    @JKB: Back with more nonsense, I see.

    The FDA and the USDA are chronically under-funded and under-staffed. They should be conducting WAAAAY MORE inspections and testing than they are currently able to do, because they don’t have sufficient staff or funds. You would never eat chicken again if you knew how infrequently processing plants are tested for pathogens–and how frequently they fail when they are tested.

    Support funding these agencies fully or go away.

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  22. Mister Bluster says:

    @Jen:..You would never eat chicken again…

    JKB should try eating crow…

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