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Federal Judge Allows False Advertising Lawsuit Against Fireball to Proceed Over Malt Liquor Beverage

West Palm Beach Business Litigation Attorney 2023-01-26 16-48-30

According to a report from Courthouse News Service, a federal judge will allow a false advertising lawsuit against a malt liquor beverage advertised as “fireball” to proceed. Consumers allege that marketing falsely implies that the product is “whisky-based.” In this article, our Miami deceptive and unfair trade practices lawyers provide a more detailed overview of the allegations and explain how false advertising could be the basis of an FDUTPA claim in Florida.

False Advertising Complaint: Material Misrepresentation By Company 

A California resident named Christopher McKay has taken legal action against Sazerac—a New Orleans based distiller—over misleading packaging of its whisky-flavored malt beverage. The consumer claims that he believed that the product included whisky due to similarities to Fireball Whisky’s label. The defendant moved for a dismissal of the lawsuit. However, a federal judge denied the motion to dismiss. The judge determined that  packaging in question could potentially confuse reasonably consumers.

False Advertising is a Legally Actionable Claim Under the FDUTPA 

False advertising can damage consumers and competing businesses. Companies have a general responsibility to fairly and properly market/advertise their products and services. Notably, false advertising constitutes a legally actionable claim under the Florida Deceptive and Unfair Trade Practices Act (FDUTPA). If an advertisement misrepresents the nature, characteristics, or benefits of a product, this can form the basis for a FDUTPA claim.

Florida Law Defers to the FTC’s Definition of “False Advertising” 

What constitutes false advertising? It is not always an easy question in practice. The FDUTPA explicitly aligns with the Federal Trade Commission’s (FTC) definition of “false advertising”. Broadly speaking, the FTC’s definition encompasses any advertisement that is “misleading in a material respect”. In this context, “material” refers to information that would likely affect a consumer’s choice or use of a product or service. It includes misrepresentations, omissions, or practices likely to mislead consumers. All false advertising claims are fact-specific legal cases. The context of what was said/presented by the company advertising products/services always matters.

 Consumers Can Sue for “Actual Damages” Under the FDUTPA

 The FDUTPA is a potent consumer protection law. It not only allows consumers to take direct legal action against businesses for deceptive and unfair trade practices, but also provides for the recovery of actual damages. Actual damages refer to the real, quantifiable financial loss that a consumer has suffered as a direct result of the deceptive or unfair practice. In other words, a Florida consumer  who can prove that they experienced a financial loss due to a company’s false advertising or deceptive practices could potentially recover the full amount of that loss under FDUTPA.

 Consult With Our FDUPTA Lawyer in South Florida Today

At Pike & Lustig, LLP, our Miami FDUTPA claims attorney is an experienced advocate for clients. If you have any questions about false advertising and deceptive and unfair trade practices lawsuits, we are here as a legal and professional resource. Contact us to get started. Our firm handles FDUTPA claims throughout Southeast Florida, including in Miami, Fort Lauderdale, and West Palm Beach.



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