Hard Seltzer Brand Hit With Class Action Alleging It Makes Drinking Alcohol Seem Healthy

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Flying Embers Hard Seltzer Class Action Lawsuit Overview:

• Who: A hard seltzer consumer is suing Fermented Sciences over its Flying Embers products.
• What: The plaintiff says the company falsely markets its alcoholic beverages appear healthy through the advertised additions of probiotics and Vitamin C.
• Where: The plaintiff looks to represent others in Illinois, North Dakota, Kansas, West Virginia, Wyoming, and Delaware.

A hard seltzer brand markets its products as being somewhat healthy, misleading customers into believing they’re doing something good for their bodies when they drink the company’s alcoholic drinks, a new class action alleges.

Plaintiff Katie Kuciver, an Illinois hard-seltzer drinker, filed the class action lawsuit against Fermented Sciences, Inc. Oct. 24 in an Illinois federal court, alleging violations of state consumer laws.

She says the company sells the Flying Embers-branded hard seltzer and hard kombucha products, which are promoted as containing vitamin C, antioxidants, real botanicals, and live probiotics. 

However, the packaging is misleading because it tricks consumers into expecting the products to be a “healthful source of nutrients and dietary ingredients,” outweighing any negative effects otherwise associated with alcohol consumption, the lawsuit alleges.

Kuciver says she bought cans of Flying Embers Hard Kombucha (Watermelon) and Flying Embers Hard Seltzer (Pineapple Cayenne). 

Kuciver, who likes fruits and vegetables and eating healthy, says in the lawsuit that she knows consuming alcohol isn’t the best thing, but the promotion of antioxidants, probiotics, and adaptogens in the products “alleviated any guilt she has from consuming the products.” 

She says she thought from the products’ marketing that the positive effect of drinking the beverages outweighed the negative effects from consuming alcohol, “because that is what the representations said and implied.” 

The lawsuit goes on to say that the FDA has previously noted that it does not consider it appropriate “to add vitamins and minerals to alcoholic beverages.” Kuciver says fortification of carbonated beverages is banned for similar reasons: because these products are typically high in sugar, and not intended to be part of a balanced diet.

“Even though the Products contain twenty percent of the daily value of vitamin C, it is necessary to consume an alcoholic beverage to get this amount,” the lawsuit states.

“An average consumer does not have the specialized knowledge necessary to ascertain that the deleterious effects of alcohol overtime will not be overcome by the addition of vitamin C and probiotics.” 

Kuciver is seeking to represent anyone who bought the hard seltzer in Illinois, plus a multi-state Class of consumers who bought it in North Dakota, Kansas, West Virginia, Wyoming, and Delaware.

She’s suing under Illinois consumer and business laws, as well as state consumer fraud acts, for breach of warranty, negligent misrepresentation and fraud. She’s seeking certification of the class action, an injunction, damages, costs, fees and a jury trial.

This is not the only hard seltzer company facing a class action lawsuit. In August, the Boston Beer Company was hit with a lawsuit alleging it uses misleading imagery and labeling to falsely advertise Truly Hard Seltzer flavors — duping consumers into thinking they contain fruit. 

Do you think alcohol companies should be allowed to advertise the addition of vitamins and probiotics to their products? Let us know in the comments! 

The plaintiff is represented by Spencer Sheehan of Sheehan & Associates, P.C. 

The Flying Embers Hard Seltzer Class Action Lawsuit is Kuciver et al., v. Fermented Sciences, Inc., Case No. 1:21-cv-05668, in the U.S. District Court Northern District of Illinois.

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