"tasting like a smooth whisky" is not a disclosure that there's no whisky in the bottle

Pizzaro v. Sazerac Co., 2025 WL 2682673, No. 23-CV-2751 (KMK), No. 23-CV-4323 (KMK) (S.D.N.Y. Sept. 18, 2025)

The court certifies a class of purchasers alleging deception in their purchases of Fireball and Parrot Bay malt beverage (16.5% ABV) that looked a lot like Fireball whisky (33% ABV) and Parrot Bay rum (21% ABV in coconut flavor) under NY’s GBL.

Things I noted: material misleadingness to a reasonable consumer was a common question, which predominated; individual reliance was not required.

Sazerac argued that different labels defeated predominance: “Labels on 100 ml and 355 ml bottles, as well as on the outer packaging of 6-packs and 10-packs, describes Fireball Malt as ‘tasting like a smooth whisky’– a clear sign that the product is not a whisky.” In addition, “[p]urchasers of 6-packs or 10-packs of Fireball Malt would have seen the ABV printed prominently on the customer-facing panel of the package.” It also argued that the different bottle and label sizes undermine a survey that found that 63% of consumers for Parrot Bay Malt and 66% of consumers for Fireball Malt believe they contain distilled spirit because the survey only used images of 50 ml bottles.

But materiality could be established on a class-wide basis, and misleadingness could be measured by an objective reasonable consumer standard, also class-wide. Differences in the labels were not fatal:

Even if parts of the label like the “malt beverage” font are larger, other aspects of the label that could have misled consumers like the name “Fireball,” Dragon logo, “Red Hot” tagline, and “Cinnamon” statement are also larger. If a jury finds that the combination of these aspects would mislead a reasonable consumer to think they are buying whisky or rum instead of malt, the issue is resolved for the entire class without an individual inquiry.

As for “tasting like a smooth whisky,” that didn’t mean “not a whisky.” “A reader could reasonably understand the label to mean that the product is indeed whisky that tastes smooth like an expensive, well-aged whisky despite being a cheaper whisky.”

Sazerac argues that there could be no price premium because it line prices the products, which means “assigning a single, uniform price to all products sold in identical quantities.” When, as here, “the concern about the proposed class is not that it exhibits some fatal dissimilarity but, rather, a fatal similarity—[an alleged] failure of proof as to an element of the plaintiffs’ cause of action—courts should engage that question as a matter of summary judgment, not class certification.” Plaintiffs’ conjoint analysis for the price premium matched their theory of the case, which was all that was required.

The court also pointed to In re Gen. Motors LLC Ignition Switch Litig., 407 F. Supp. 3d 212 (S.D.N.Y. 2019), in which “Judge Furman helpfully distinguished between cases with dangerous defects and classic mislabeling cases for when the use of historical pricing data is apposite.” He reasoned that “where the alleged misrepresentations and omissions concern dangerous defects,” it is difficult to account for supply-side factors because “products containing such defects are rarely (if ever) sold (or allowed to be sold by regulators) when the defects are fully disclosed.” But “[i]n a classic mislabeling case,” using historical pricing data to account for supply-side factors in conjoint analyses “makes sense.” Here, “even if consumers purchase malt beverages under the mistaken impression that beverages are whisky or rum, an emergency room visit will not be necessary if consumed in moderation.”