(NBC CHICAGO) - A class-action lawsuit has been filed in Cook County, Illinois against the makers of Fireball Cinnamon over what the plaintiff alleges is purposefully misleading packaging.
On Jan. 7, Plaintiff Anna Marquez filed suit in the United States District Court Northern District Of Illinois over what the Chicago resident is calling deceptive labeling on Fireball Cinnamon.
Made by parent company Sazerac, Fireball Cinnamon is a suite of products that include malt-based and wine-based alcoholic beverages made to “capture the essence” of the original Fireball Cinnamon Whisky — but don’t contain any actual whiskey.
Miniature bottles of Fireball Cinnamon are sold in stores in the U.S. that can only sell beer, malt beverages and wine products, like gas stations and grocery stores, typically for 99 cents — but aren’t the same product as Sazerac’s more well-known spicy drink brand: Fireball Cinnamon Whisky, which actually contains whisky.
Lawyers for the plaintiff provided images of both Fireball Cinnamon Whisky and Fireball Cinnamon for comparison. They also provided images of bottles of Fireball Cinnamon sold at both a ShopRite supermarket in an undisclosed location and sold inside what appears to be a convenience store.
The suit alleges that the labels of these two distinct products: “Fireball Cinnamon Whisky” and “Fireball Cinnamon” are virtually indistinguishable from each other and because of that, the malt- or wine-based version of Fireball misleads “consumers into believing it is or contains distilled spirits.”
Because of all this, Marquez says she purchased bottles of Fireball Cinnamon assuming that they contained whisky, which they do not.
A representative for Sazerac, the makers of both Fireball products, tells TODAY.com the company does not comment on ongoing litigation.
The lawsuit further alleges that in addition to the titles of the products being too similar to tell apart, the fine-print text on Fireball Cinnamon bottles are similarly misleading, writing that the words “With Natural Whisky & Other Flavors” are a “clever turn of phrase” because “consumers who strain to read” the label will assume the phrase “Natural Whisky” is a separate item from “Other Flavors.”
“They will think the Product is a malt beverage with added (1) natural whisky and (2) other flavors,” the suit reads. “What the label means to say is that the Product contains ‘Natural Whisky Flavors & Other Flavors,’ but by not including the word ‘Flavors’ after ‘Natural Whisky,’ purchasers who look closely will expect the distilled spirit of whisky was added as a separate ingredient.”
The suit also says that even if a distilled spirit like whisky was used to manufacture flavors, it loses its classification as a spirit when blended with other ingredients — which is why the product is allowed to be sold at places Fireball Cinnamon Whisky is not.
The suit cites local news stories that reinforce the idea that the new product has created confusion among consumers, including one 2021 article from the Hudson Valley Country titled “Since When Can You Buy Fireball at Gas Stations in the Hudson Valley?” which asks that very question without resolution.
“Fireball at a gas station? I thought that was something you could only buy at a liquor store, right?” writes author CJ McIntyre. “I mean it’s cinnamon-flavored whiskey!!”
“When viewed together with the Fireball distilled spirit brand name, the label misleads consumers into believing it is or contains distilled spirits,” reads the suit, adding that while federal and identical state regulations allow the brand name of Fireball to be used on the malt-and wine-based versions, they prohibit “the overall misleading impression created” as to the “‘Fireball Cinnamon’ version.”
“Expecting those small bottles labeled “Fireball Cinnamon” to contain whisky “[was] an easy mistake to make, and one intended by the manufacturer,” says the suit.
The lawsuit claims Sazerac violated state consumer fraud statutes, breached express warranty and benefitted from unjust enrichment and seeks to represent “more than 100” plaintiffs in addition to Marquez who purchased the item at “thousands of stores including grocery stores, big box stores, gas stations and convenience stores.”
On the FAQ page of the official Fireball website, many of the pre-answered questions are devoted to the similarities and differences between Fireball Cinnamon Whisky and Fireball Cinnamon, including why the company says they created the malted version in the first place.
“Over the years, we have received feedback from consumers wanting to purchase Fireball in a wider variety of convenient shopping locations, including stores that can only sell beer, malt beverages and wine products,” reads one of the answers on the Fireball website, adding that the company now offers Fireball in approximately 170,000 stores in the U.S. that can only sell beer, malt beverages and wine products, but not whisky.
“Unlike Fireball Whisky, Fireball Cinnamon malt or wine based products can be sold in beer, malt beverage and wine stores for our fans who want a wider variety of convenient shopping locations,” it reads. “Fireball Whisky continues to be available in bars, restaurants, and liquor stores across the country.”
Though plaintiff Marquez is an Illinois resident, the suit, submitted by Spencer Sheehan and Associates, seeks to cover anyone in the state and also in North Dakota, Wyoming, Idaho, Alaska, Iowa, Mississippi, Arkansas, Kansas, Arizona, South Carolina or Utah who purchased Fireball Cinnamon. The filing states that the amount of damages for plaintiffs if the suit would exceed “$5 million, including any statutory and punitive damages.”
Sheehan is well-known for bringing lawsuits against big-wig food-and-beverage companies — more than 400 lawsuits of this kind, as reported by NPR in 2021.
In May 2021, he sued Frito-Lay alleging it didn’t use enough real lime juice in its “Hint of Lime” Tostitos; and then in October of the same year, Sheehan filed suit against Kellogg’s accusing the company of falsely advertising the strawberry content in its Frosted Strawberry Pop-Tarts.
More recently, in November 2022, Sheehan’s firm represented a woman who filed a suit against Velveeta, claiming its Shells & Cheese takes longer than 3½ minutes to make.