Rum Buyers Allege Package Makes False Age Claim

[El Presidente]

I found this to be an interesting court action and one with a significant potential impact for not just the liquor industry. 

https://www.natlawreview.com/article/rum-buyers-allege-package-makes-false-age-claim

Rum Buyers Allege Package Makes False Age Claim

Monday, September 13, 2021

• On September 9, 2021, a complaint was filed in the U.S. District Court for the Central District of California against Diageo North America.  The proposed class of plaintiffs allege that deceptive packaging led them to pay a premium for Ron Zacapa Centenario under the mistaken belief that the product contained only rum aged 23 years.

• This new class action lawsuit is bolstered largely by the claim that statements on a cylinder that holds the bottle of rum constitute an age statement and that the age statement violates the Alcohol and Tobacco Tax and Trade Bureau’s (TTB) rule under 27 CFR 5.40(e) which permits a voluntary age statement in the form “__ years old,” with the blank to be filled in with the age of the youngest distilled spirits in the product.  The plaintiffs contend that a phrase “SISTEMA 23 SOLERA,” which appears in bold font, adjacent to the product name “Ron Zacapa Centenario” in the upper to middle part of the package, together with the words “Aged At A High Altitude in Oak Barrels,” which is part of a phrase printed in smaller font near the bottom of secondary packaging for the rum, imply that the product consists entirely of rum that has been aged 23 years but, in fact, is made by a solera method of stacking multiple layers of aging barrels on top of each other in a manner that results in a blend of rums aged from 6 to 23 years.

• As a reminder to our readers, there is no private right of action to enforce federal labeling regulations, although such regulations, especially FDA’s food labeling regulations in Part 21 of the Code of Federal Regulations, are frequently invoked in deceptive advertising lawsuits as evidence of consumer deception. 

© 2021 Keller and Heckman LLPNational Law Review, Volume XI, Number 256

 

[Fuzz]

I've never mistaken it to mean that all the rum in the bottle was 23 yrs old.

Then again, I know what solera means. Many Australian fortifieds are made using the solera method, and If I recall correctly, there's a US fortified maker that uses the solera system, so it shouldn't be unfamiliar.

Besides, they changed their label to avoid confusion quite a while ago (pre 2010). Ron Zacapa used to have "23 Anos" on the bottle. There is some conjecture that there once was a time when Zacapa was really a 23yr old rum, but I can't find any confirmation of this.

An older style bottling.

Interestingly enough, I even find a "15 Anos" bottle. Never knew they did this one.

[Akela3rd]

You occasionally see people advertising old cigar boxes, and more often jars, as being over a hundred years old due to the warranty seal that has the year 1912 on it...

Sent by spooky action at a distance

[Chas.Alpha]

I'm surprised that some of our members still have a bottle of this. Mine rarely last much over a week!

[riderpride]

Diagio has always been viewed as 'less than fully honest ' in the whiskey world, so no surprise here. 

I remember the label claimed Bulleit was distilled at the Bulleit Distillery despite it being sourced from Four Roses, Brown-Forman and MGP. I believe that the distillery now exists and the bourbon and rye is mostly their own distillate so the claim is closer to the mark now. 

I'll drink it if it tastes good - just don't lie to me.

[Chas.Alpha]

1st of all, Zacapa’s “Solera 23” claim is that the oldest rum in the blend is 23 years old. Cuban rum aficionados understand this claim as being the youngest in their blend. Either way, delicious.

Are lawyers really necessary?

[Fuzz]

33 minutes ago, riderpride said:

Diagio has always been viewed as 'less than fully honest ' in the whiskey world, so no surprise here. 

I remember the label claimed Bulleit was distilled at the Bulleit Distillery despite it being sourced from Four Roses, Brown-Forman and MGP. I believe that the distillery now exists and the bourbon and rye is mostly their own distillate so the claim is closer to the mark now. 

I'll drink it if it tastes good - just don't lie to me.

The "23 Anos" designation on the label was there long before Diageo bought into Zacapa, and from what I've found, Zacapa were in the process of changing the labeling before the partnership began.

[SirVantes]

I've said this before:  

“Solera” rums - the homeopathic preparations of the spirits industry

[Ken Gargett]

there is a bit on it here.

 

https://quillandpad.com/2020/02/25/ron-zacapa-centenario-guatemalan-rum-from-the-house-above-the-clouds/

[Ryan]

It'll be interesting to see how this goes. I think the "Solera" is stated clearly enough on the label but US labelling regulations can be quite strict.

Up until about 15 years ago, Irish whiskey that was 100% pot still was labelled "Pure Pot Still" and that makes sense as "100%" generally means pure.

"Pot Still whiskey" in Ireland means whiskey made in a pot still (obviously) but also must be from a mix of malted and unmalted barley. There are a couple of other requirements and allowances but they're the two main rules.

About 15 years ago US regulators (not sure which body but maybe the FDA) decided that the word "pure" cannot be used to describe a spirit on a label, or at least an Irish whiskey label.

Since then Irish pure pot still whiskeys are labelled as "Single Pot Still", even in Ireland. This is meaningless as very few, vanishingly few, are from a single pot. The "Single" refers to the distillery. A Single distillery. This is allowed.

Similar to Scottish Single Malt whiskies. Most people still believe the "Single" refers to some notion that they are unblended. Almost all Scottish Single Malt whiskies are blended. Go to any Scottish distillery and they'll show you the 10-20 whiskies that go into their Single Malts. The "Single" in "Single Malt" refers to the fact that all the whiskies in that blend come from the same (a single) distillery.

Back to rums. It seems that no single body has taken up the cause of a legal definition of what a rum can be, eg. the vast majority of rums don't mention the "dosage" on the labels. And the majority do it, i.e. add sugar. Maybe there is a particular skill to adding 20g - 40g of sugar per litre of rum but if so, state it on the label.

Those people taking the case against Diageo/Zacapa might strengthen their case if they put the "40% Vol" stated on the label to the test and see if they can get a ruling on whether Zacapa Solera 23 should even be called "rum".

I like rum, aged rum, very much. And I would like it to be taken more seriously by producers and distributors of other aged spirits (whisky/ey, cognac etc.) but until some regulations come in regarding additives and label statements, rum (including aged rum) will continue to be seen as a "party drink" or cocktail ingredient. 

[Chas.Alpha]

21 hours ago, Ken Gargett said:

Ken, I understand that you are a retired lawyer. If you were on the plaintiff’s side and I were defending, I would ask you to prove that less than one drop of 23 yo spirit was in this bottle. The packaging clearly states that it is a blend of between 8-23 years. How can there even be a case?

Your thoughts?...

[Ken Gargett]

37 minutes ago, Chas.Alpha said:

Ken, I understand that you are a retired lawyer. If you were on the plaintiff’s side and I were defending, I would ask you to prove that less than one drop of 23 yo spirit was in this bottle. The packaging clearly states that it is a blend of between 8-23 years. How can there even be a case?

Your thoughts?...

as a retired lawyer, i'd know enough not to dabble in other jurisdictions where i have no idea about the full regulations. the point above about standard rules is a good one. but won't happen. barbados has four distilleries and can't even agree on a standard set of rules as to GI, so what chance the planet?

[SirVantes]

1 hour ago, Chas.Alpha said:

Ken, I understand that you are a retired lawyer. If you were on the plaintiff’s side and I were defending, I would ask you to prove that less than one drop of 23 yo spirit was in this bottle. The packaging clearly states that it is a blend of between 8-23 years. How can there even be a case?

Your thoughts?...

 

56 minutes ago, Ken Gargett said:

as a retired lawyer, i'd know enough not to dabble in other jurisdictions where i have no idea about the full regulations. the point above about standard rules is a good one. but won't happen. barbados has four distilleries and can't even agree on a standard set of rules as to GI, so what chance the planet?

Not for me to tell Plaintiff's counsel how to run a case, but maybe he should argue that it isn't a "solera" rum as labelled at all.

https://punchdrink.com/articles/has-solera-become-dirty-word-aged-rum/

“We age our rum using a unique process, which is an adaptation of a Spanish sherry maturing process,” says Lorena Vásquez, master blender for Guatemala’s Ron Zacapa. “This enables rums of varying ages and personalities to be carefully blended and matured in a series of casks previously used to store American whiskeys, delicate sherries and Pedro Ximénez wines.” And then the critical point: “Differing from the sherry solera system, the barrels are changed every time a new mixture is realized, which gives an extraordinary depth of flavor.”

While Zacapa’s aging regimen certainly creates rum that is much enjoyed by consumers, it differs substantially from traditional sherry solera techniques. There is no intermingling of rums from prior batches in each cask, and no criaderas holding spirit with different average ages. In addition, by swapping in new barrels, the extraction of each barrel’s previous contents is maximized. By contrast, sherry soleras use the same barrels for decades, and their neutrality is key. 

Miguel Riascos, managing director of Columbia’s La Hechicera, which produces Solera 21 rum, downplays the usefulness of a true solera system in rum, arguing that “the solera method ignores the subtleties and nuances of individual barrels.” He says that La Hechicera uses the same principles of solera aging, but chooses to “to celebrate each barrel’s individual character when assembling our final blends.” Picking casks with specific flavors to create a final blend is a long tradition in spirits-making, but it’s the exact opposite of true solera aging.

[Nino]

11 hours ago, SirVantes said:

Picking casks with specific flavors to create a final blend is a long tradition in spirits-making, but it’s the exact opposite of true solera aging.

^^^This.

And this from the very good article linked in above post :

While Zacapa’s label doesn’t explicitly say “23 years,” the average consumer would be forgiven for thinking every drop is aged at least that long. This isn’t a minor point. A quick online search for “Zacapa” reveals that many retailer listings say “23 year.” If retail sellers can’t accurately deal with this subtlety, what hope do consumers have? And is this fair to brands who use actual age statements on their labels?

Foursquare Rum Distillery’s Richard Seale, a vocal critic of solera aging, minces no words: “The law requires that an age statement name the youngest rum in the bottle. Any age claim beyond that is illegal,” he says. “Putting an isolated number on the label, which is then universally mistaken for a legitimate age claim, is a despicable, deceptive practice and should be condemned.”

 

[Chibearsv]

On 9/16/2021 at 6:09 AM, El Presidente said:

The plaintiffs contend that a phrase “SISTEMA 23 SOLERA,” which appears in bold font...

I would think the above phrase alone kills this lawsuit. 

If people made a purchase thinking "SISTEMA 23 SOLERA,” is synonymous with "23 Year Old", I don't think the emptor caveat. 

The older bottles that have been shown in this thread that simply said "23 Anos", if blended, seem much more deceptive. 

[Ken Gargett]

11 hours ago, Nino said:

^^^This.

And this from the very good article linked in above post :

While Zacapa’s label doesn’t explicitly say “23 years,” the average consumer would be forgiven for thinking every drop is aged at least that long. This isn’t a minor point. A quick online search for “Zacapa” reveals that many retailer listings say “23 year.” If retail sellers can’t accurately deal with this subtlety, what hope do consumers have? And is this fair to brands who use actual age statements on their labels?

Foursquare Rum Distillery’s Richard Seale, a vocal critic of solera aging, minces no words: “The law requires that an age statement name the youngest rum in the bottle. Any age claim beyond that is illegal,” he says. “Putting an isolated number on the label, which is then universally mistaken for a legitimate age claim, is a despicable, deceptive practice and should be condemned.”

 

nino, i am a big fan of Richard Seale and his rums, but the guy is behind the GI push for rum for Barbados and he can't get that across the line. that is four distilleries. what chance for the rest of the world? 

zacapa would be important to guatemala and one assumes that it complies with their laws. joint ownership with diegio means that they have deep pockets to fight any lawsuits. you'd think that any challenge should be regulatory. if any of us sued as individuals, what are the damages? a bottle of rum? you'd need way more money than sense to bring an action over that. and claiming that you bought lots more is only going to provide ammunition to zacapa - if you had a problem, why keep buying? 

i'd be fighting this through the regulatory bodies to have them enforce it. whether they will or not will depend on the laws in each country.

or i'd be fighting it as a public relations battle. if you can get enough bad press then they'll change.  

i don't like what zacapa do with their labeling. does make me uncomfortable, but if Seale is correct and it is against the law, which law? and in which countries? the problem is that laws vary from country to country. 

[SirVantes]

The extent of the consumer confusion (or deception) is compounded by what I infer as calculated decisions as to what Zacapa 23 is not:

• it is not called Zacapa 23 Sistema Solera - the name in Zacapa's marketing is Zacapa 23 or Zacapa Centenario 23.  And of course they can't possibly publicly correct every retailer that sells it as Zapaca 23 years/year old.  And not their problem if universal shorthand for aged spirits is "Name - number".
• it is not called Zacapa No. 23 - unlike JD Old No. 7, where the "No." obviates confusion as to whether it an age statement.
• it is not a number that is patently obvious is a not a marketing advantage if mistaken for an age statement eg. Ketel One.  It is not a number that cannot reasonably be mistaken for an age statement at that price eg. Monkey 47. It is a number that, if mistaken for an age statement, will not elicit a "that's too good a price for that age".  Zacapa 25 would simply make too many people instinctively twitch.
• It is not in a spirits segment that does not value age, eg. Ketel One again.
• It is not even labelled "Sistema Solera 23" or "Solera 23".  As mentioned in the complaint, it is labelled "Sistema 23 Solera" (because of the large numeral surrounded by curved text, which is good for association with the more familiar "Aged X Years" presented in that manner, but oops, awkward here).  What does that even mean?  We know Zacapa claims to use a "sistema solera", but what is a "sistema 23 solera"?  Is it even grammatical?  Or is it going to be claimed a proprietary term, that means whatever they say it means?    

[Hookmaker]

The question is really: do you like the content because of its taste or do you only like it because you think it’s 23 yrs old? There are many out there in the second category. Do I dare say “most” are probably in that category


Sent from my iPhone using Tapatalk

[Chas.Alpha]

I’ve settled this. The Solera 23 is delicious. The XO is superb and the empty bottles make fine containers for household chemicals.

I don’t care how it’s made or how old it is. I did not require a solicitor to come to my conclusions.