Sazerac Fireball Cinnamon – Clever Marketing or Deceptive Labeling? | Adams and Reese LLP
The industry is all abuzz about Sazerac’s flavored malt beverage “brand-extension” of its popular Fireball Cinnamon Whisky. Here is a single serving – aka shot – of the original 66 proof distilled spirit:
Here is the 33 proof malt-beverage – Fireball Cinnamon, which is 16.5% alcohol by volume:
The two products look remarkably similar, in our humble opinion. Same brand name – Fireball. Some font for the Fireball brand name. Same red-hot dragon logo. Near the bottom of the label, the whisky says “Cinnamon Whisky.” The malt beverage says “Cinnamon.”
The fine print explains that Fireball Cinnamon is “Malt Beverage with Natural Whisky & Other Flavors and Caramel Color.”
Did Sazerac deliberately dangle the words “Natural Whisky” from the word “Flavor?” There is a big difference between a beverage that contains natural whisky and a beverage with “natural whisky flavor,” whatever the heck the latter might be.
We find ourselves rhetorically enquiring: isn’t anything other than whisky an artificial flavor?
Aretha Franklin answers:
There ain’t nothin’ baby, nothin’ like the real thing, baby.
Sazerac has drawn the ire of consumers and at least one class-action lawsuit alleging consumer fraud, deceptive business practices, breach of warranty, negligent misrepresentation, fraud and unjust enrichment. The full lawsuit can be read here.
We suspect that Sazerac is using the malt-beverage formulation of its popular whisky brand to tap into a broader market. Malt-beverages are widely available in most states at convenience, grocery and other mass retailers, while whisky and other spirits have more limited distribution, often only sold at liquor stores. The malt-based formulation also allows Sazerac to avoid higher spirits taxes and price Fireball Cinnamon lower than competing spirit brands.
Alcoholic beverage industry insiders are quick to note that labeling was one of the most important consumer protections that came from pre-Prohibition excess. Bottled in bond, for example, was a response to poor quality whisky that was flavored with caramel, tobacco and often worse ingredients to conceal the questionable quality of the distilled spirit.
The COLA process with TTB is designed to properly inform consumers about alcoholic beverages.
Many in the industry, and at least one court, are asking: has Sazerac stepped across the line with Fireball Cinnamon?
Almost ironically, Sazerac is currently struggling with an influx of counterfeit high-end Sazerac spirits allegedly imported into the United States from The Netherlands.
We should note that Sazerac candidly explains the differences between the two Fireball products on their website FAQ.
