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

An inspector checks Fireball whiskey bottles on the line at Boston Brands of Maine in Lewiston in 2020. Russ Dillingham/Sun Journal

“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.

A 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.

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.

The filing cited 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.

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.

A representative for Sazerac, the maker of Fireball, said the company would not comment on ongoing litigation.

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