Fireball “Whisky”: Deceptive Labeling in the Alcohol Industry

Well before the launch of Fireball’s malt beverage products, Fireball Cinnamon Whisky was popular. It was well-known for its unique label design, including a fiery red dragon, and its tagline, “Tastes Like Heaven, Burns Like Hell.” It comes at no surprise then, that many consumers conflated “Fireball Cinnamon” products with the “Fireball Cinnamon Whisky” they have come to know and love. At least, that’s what a recent class action alleges.

Fireball’s parent company, Sazerac Company, Inc., was recently hit with a class action lawsuit for fraud, negligent misrepresentation, and unjust enrichment. The complaint alleges that “Fireball Cinnamon” products, now seen in gas stations and grocery stores across the country, have misled consumers into thinking the products contain real “Whisky.” At first glance, the packaging and labeling on these small 50ml bottles are strikingly similar to the real deal, or “Fireball Cinnamon Whisky.” However, there is a key difference between “Fireball Cinnamon” products and “Fireball Cinnamon Whisky” that is not immediately apparent to the average consumer. Fireball Cinnamon Whisky has 33% alcohol by volume, while “Fireball Cinnamon” has 16.5% alcohol by volume and is a malt beverage, not a real Whisky product.

The launch of “Fireball Cinnamon” was likely in response to consumer displeasure with state laws that prohibit the sale of alcohol above a certain percentage outside of licensed bars and ABC stores. According to Fireball:

Unlike Fireball Whisky, Fireball Cinnamon products can be sold in beer, malt beverage and wine stores for our fans who want a wider variety of convenient shopping locations. However, many states have laws that prohibit malt beverage and wine-based products being sold above a certain alcohol content. We chose an alcohol content that would allow us to provide our fans with great tasting products and with as many additional shopping locations as possible. There are 170,000 accounts licensed to sell beer, malt beverages, and wine that cannot sell Fireball Whisky, so there are many additional opportunities for fans who want a wider variety of convenient shopping locations!

On its face, the difference between the design and packaging of the “Whisky” and “Cinnamon” products is non-existent. The same general design, color scheme, and fiery red dragon is on both products. However, well beneath the enlarged, bolded letters “Cinnamon,” is a reference to the composition of the malt beverage product: “Malt Beverage With Natural Whisky & Other Flavors and Caramel Colors.”

The complaint alleges that the “&” between “Malt Beverage with Natural Whisky” and “Other Flavors and Caramel Colors,” appears to provide a crucial distinction between the two ingredients, leading consumers to believe that the “Cinnamon” product contains both: (1) Natural Whisky, and (2): Other Flavors.           

Under Federal law, alcoholic beverage labels that mislead consumers are prohibited:

Designations that create a misleading impression as to the identity of the product by emphasizing certain words or terms are prohibited. As set forth in § 7.122, designations may not mislead consumers as to the age, origin, identity, or other characteristics of the malt beverage. Examples of designations that would be prohibited under this provision are “bourbon ale,” “bourbon-flavored lager,” “Chardonnay lager,” or “lager with whisky flavors.”

While the outcome of this suit is unclear, the alcohol industry should be careful moving forward when deciding how to design and label their malt beverage products; especially if a reasonable consumer would likely be confused. Indeed, not every consumer is familiar with the legal definition of Whisky, and not every consumer is willing to put on their eyeglasses to read the “fine print.” Without close inspection, a reasonable consumer is more than capable of inferring, albeit wrongly, that a malt beverage product that is labeled similarly to its real “Whisky” counterpart, is in fact a genuine “Whisky” product. While federal law does not expect manufacturers to entirely change the packaging design of malt beverages, companies are expected to be transparent when labeling & marketing their products.

 In this case, being transparent means including language that identifies what the product is, and what it is not. Admittedly, the Fireball Cinnamon product includes language that identifies it as a malt beverage. However, that language is (1) questionably hard to read for the average consumer and (2) confusing. Indeed, the small print text includes the words “Malt Beverage with Natural Whisky.” If federal law deems “Lager with Whisky Flavors” an inappropriate misrepresentation, surely, the language “Malt Beverage with Natural Whisky” included on the Fireball Cinnamon product has the potential to mislead consumers.

 Considering that the design and label of the Fireball Cinnamon product are strikingly similar to its genuine Whisky counterpart, many reasonable people, upon entering their local gas station, might very well have purchased “Fireball Cinnamon” after merely glancing at the well-known “Whisky” brand on the shelf. Instead of changing the entire design of the product, perhaps, the new Fireball Malt-Beverage Product should be labeled “Fireball Cinnamon Malt-Beverage,” with a prominent disclaimer stating that the product does not contain real “Whisky.”

Jackson graduated summa cum laude from North Carolina State University and is a 2L at Wake Forest University School of Law. Since enrolling at Wake Forest Law, he has focused on litigation. He earned a spot on the Wake Forest Law Trial Team after being crowned Champion of the Cynthia J. Zeliff Trial Competition in his 1L year. He worked as a Judicial Intern for the Honorable Judge Jefferson Griffin at the North Carolina Court of Appeals. He also worked as a Law Clerk in private practice for a former Justice of the Supreme Court of North Carolina. During his fall semester as a 2L, he assisted with the representation of a U.S. Congresswoman. In addition, Jackson has served as an Executive Board Member of the Wake Forest Law Trial Bar, a Staff Member of the Wake Forest Journal of Business & Intellectual Property Law, and a Summer Initial Editor for the Wake Forest Law Review.

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