By: Nicholas Neathamer
Known for its slogan, “Tastes Like Heaven, Burns Like Hell,” Fireball Cinnamon Whisky is a popular liquor with a sweet taste and a spicy, cinnamon aftertaste. The mixture of Canadian whisky, cinnamon flavoring, and sweeteners is produced by the Sazerac Company, and shots of the alcohol are sold in distinctive 50 milliliter bottles around the world. But to the dismay of at least one customer, that distinctive packaging has recently been used with only minor changes to sell shots of Fireball Cinnamon, a beverage that does not contain any whisky but rather is a flavored malt beverage (FMB) containing only half of the alcohol by volume as its whisky counterpart. Anna Marquez, that spurned purchaser of the FMB variant, has filed a class-action lawsuit in the United States District Court for the Northern District of Illinois against Sazerac Company, Inc.
Marquez seeks to certify two classes of Fireball Cinnamon purchasers for the lawsuit. The first consists of purchasers in Illinois, her home state, while the second consists of those from eleven other states: North Dakota, Wyoming, Idaho, Alaska, Iowa, Mississippi, Arkansas, Kansas, Arizona, South Carolina and Utah. Marquez’s complaint lists a variety of claims, including violations of the Illinois Consumer Fraud and Deceptive Business Practices Act, various state consumer fraud acts, breaches of express and implied warranties, negligent misrepresentation, fraud, and unjust enrichment. While these claims contain different elements, they collectively boil down to one main premise: by using near-identical packaging, Sazerac has deceived whisky-seeking consumers into purchasing a flavored malt beverage at whisky-level prices.
Aside from the one-word change in its name, Fireball Cinnamon (the FMB) has nearly identical packaging as Fireball Cinnamon Whisky. Both come in 50 mL, identically-colored bottles with a red cap and yellow label, and both drinks have an amber color. Both feature the brand’s red devil on their labels, sandwiched by the words “RED” and “HOT.” Combined, the similarities allegedly caused Marquez to mistake Fireball Cinnamon for Fireball Cinnamon Whisky, as well as pay more than she would have had she realized that it did not contain distilled spirits of any kind. To this point, Marquez claims that the similarities have allowed Sazerac to take advantage of “consumers’ cognitive shortcuts made at the point-of-sale.” The only other differentiation in Fireball Cinnamon’s packaging is a statement of the beverage’s composition in the smallest allowable font, stating that it is a “Malt Beverage with Natural Whisky & Other Flavors and Caramel Color.” Even this description is misleading, as it can easily be misinterpreted as meaning that Fireball Cinnamon contains whisky, when in fact it only contains whisky flavoring.
Many may wonder why this matters. After all, haven’t consumers been happily enjoying Fireball Cinnamon’s familiar taste and getting buzzed regardless? Aside from the general principle that consumers should be able to have reasonable confidence in distinguishing between products they purchase, one point that Marquez’s complaint fails to elaborate on thoroughly is its argument that the false and misleading representations have allowed Fireball Cinnamon to be “sold at a premium price” of $0.99 per 50 mL bottle. While it may not sound like a steep price, this is far above the average price of malt-based beverages. In fact, as of December 2022, the average price per 50 mL of all malt-based beverages in the United States is only $0.1834. This means that consumers are paying over five times more for Fireball Cinnamon than beverages of similar composition. And while one could argue that shoppers are willing to spend this higher price, such an argument fails when considering the fact that many purchasers may be mistaking the FMB for Fireball Cinnamon Whisky.
Another reason to care is that Sazerac’s tactics allow them to sell beverages where they previously could not. Many states heavily restrict where distilled spirits and liquors above a certain ABV can be sold, typically only allowing products such as Fireball Cinnamon Whisky shot bottles to be purchased in liquor stores. Meanwhile, by introducing the malt-based Fireball Cinnamon that contains a lower ABV, Sazerac is able to sell its products in a variety of locations that are able to sell beers, wine, and malt-based beverages. This includes being able to sell Fireball Cinnamon shot bottles in many grocery stores and gas stations, and Sazerac itself touts that the company is now able to sell the FMB in approximately 170,000 additional stores in the United States. If whisky-seeking consumers continue to be deceived into purchasing Fireball Cinnamon at these locations where hard liquors are not allowed, it may provide Sazerac an unfair advantage in both sales and brand recognition.
While we will have to wait to see whether Marquez is able to certify the two classes of purchasers and prevail on any of her claims in federal court, the issue of deception in marketing and packaging is made clear by Sazerac’s two beverages in question. The clever similarities in the packaging of Fireball Cinnamon Whisky and Fireball Cinnamon and the success of the FMB in grocery stores demonstrate that despite how sophisticated we may like to consider ourselves as consumers, companies are still able to take advantage of our lack of time and our desire for convenience. No matter the outcome, this case may cause shoppers to take a second look at what they toss into their shopping carts.
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