Craft Debate Revisited: Consumers and Lawyers

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Further thoughts on the craft subject

Last March, I wrote about Craft Confusion and this past week two interesting pieces of information have come to my attention.

The first was a webinar co-sponsored by the law firms of Locke Lord, experienced in defending consumer products companies in class action lawsuits and Lehrman Beverage Law, a law firm specializing in the alcohol industry labeling and regulation.

A day later Wine and Spirits Daily reported two surveys on the topic – among its readers (industry leaders) and among 2,000 consumers via a survey conducted by Nielsen.

Both of these have had an impact on my view of the topic.

The Lawyers

In a webinar entitled, Spirits Industry Under Fire, Tom Cunningham and Simon Fleischman of Locke Lord and Robert Lehrman of Lehrman Beverage Law discussed what the flood of class action lawsuits are about, why they are filed, who the targets are and why. (Here is the full discussion.)

My takeaway is as follows.

Blame the bottom feeding plaintiff attorneys. As you can see in the report from Locke Lord, the filing of one case creates a “herd mentality” with copycat suits following. It started with Skinny Girl, largely because the label used the phrase “all natural” and that ambiguity was enough to generate a lawsuit. From there it became an epidemic with more than a half dozen other suits including Tito’s, Templeton and others. Follow the money.

According to Locke Lord:

Plaintiffs’ class action attorneys by and large don’t care whether your product is truly “handmade” or made in “small batches” or is “craft.” They trade in what is essentially blackmail and terrorism. If they have a basis for alleging that your product is not what you claim it to be, even if you fervently believe that it is, they will sue you. Very few cases go to trial. Especially class action cases, which can easily kill a company. They have the power to put you out of business simply by making a claim. Therefore, you are likely to pay them to simply drop their claim, even if it’s bogus.

In other words these attorneys are hoping for a payday in a settlement that includes their fees. The best example of this shame is that they use “professional plaintiffs.” Thomas Zimmerman is a class action attorney in Chicago, often referred to as the city that is the home of “numerous notorious plaintiff’s’ class action attorneys.”

It turns out that Zimmerman represents Mario Aliano and Mr. Aliano’s restaurant, Due Fratelli. Aliano and his restaurant claim to have purchased a number of different brands of liquors – both for personal consumption as well as for resale in the restaurant. So the ambiguity or other issues regarding marketing and labeling was enough for these folks to sue Templeton, Whistlepig, Angel’s Envy and Tin Cup on behalf of Aliano and Due Fratelli.

Does this sound to you like consumers or retailers who need to seek redress because they were deceived?

According to Locke Lord,

“Mr. Aliano and his restaurants are what we call “serial plaintiffs;” they act as Zimmerman’s plaintiffs and class representatives in numerous class actions and generally receive an incentive award of a few thousand dollars in the resulting settlements. In terms of sheer number of cases, Zimmerman is the leader.”

Until the US adopts a legal system involving a “loser pays” rule, class action suits will hurt all businesses. That’s a rule in many countries whereby the party who loses in court pays the other party’s attorney’s fees. Read this recent article in the Wall Street Journal.

The other solution involves labeling

Robert Lehrman offers some explanations and sound advice.

First, the fact that the Alcohol and Tobacco Tax and Trade Bureau (TTB) approved the label at the Federal level is not a so-called “safe harbor.” The TTB has the tools necessary to control anything “misleading” but does not enforce it and “risks being a bystander and ceding much power to the courts and private litigants.”

My interpretation – the TTB needs to “man up” and either become an agency protecting consumers who drink alcohol products or fold the tent and let another government entity do it.

The other answers involve substantiation of claims, transparency, revisiting marketing and above all (in my view) certification. If I were running a small batch production brand I would want the American Distilling Institute or American Craft Spirits Association seal on my label. In that way I would expect to reassure my consumers and hopefully also use it as shark repellant.

The Consumer

Wine and Spirits Daily asked consumers (through a Nielsen survey) “Which of the following are the top 3 terms you associate with the word ‘craft’ as it relates to alcohol beverage products?” This was the list of choices:

  • produced locally
  • handcrafted
  • environmentally responsible
  • small, independent company
  • artisanal
  • higher priced
  • small batch production
  • superb quality
  • healthy alternative
  • highest ethical standards

The top five consumer results: 1) small, independent company 2) small batch production 3) handcrafted 4) produced locally 5) artisanal.

The same question was posed to their readers (industry professionals) who were asked to predict what terms they thought consumers would use. The answers were fairly close – 1) small batch production 2) artisanal 3) small, independent company 4) handcrafted 5) superb quality.

Even more interesting, Nielsen asked about the influence of craft. “Which of the following describes how you feel when you hear an alcoholic beverage described as Craft? More interested, less interested or doesn’t influence purchase decision.

A third of all consumers surveyed said hearing something described as craft does make them more interested. BUT, nearly 50% of millennial males (21 to 34 years old) felt the same way.

Putting these two pieces together…

The consumer is not stupid. The WSD survey tells me that some don’t care about craft alcohol products and, among those who do, they have a strong idea as to whether the use of the term is genuine, marketing hype, or even outright deception.

Above all, I don’t think we need to waste the time of the courts with serial lawsuits and bogus plaintiffs just so a few attorneys can get a payday.

Like I said, there are other solutions.

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Cutty Sark and the Real McCoy

Cutty-Sark_bannerWine and Spirits Daily had an interview with the global head honcho of Cutty sark, which is owned by The Edrington Group (Macallan, Famous Grouse, others). In the interview and a previous story, he talks of the turnaround of the brand. In fact, he predicts 5% or higher growth over the next five to ten years.

Is this hype or real?

Cutty+sarkLet’s take a close look. After all, this is a brand that has had 25 years of decline from 2 million cases in the 1950s and 60s to less than 150,000 recently.

What the brand has going for it is the recent movement to Remy Cointreau and their knowledge and focus on scotch. They should be able to push the brand as part of their scotch portfolio and have a vested interest in keeping the Edrington people happy. So check the box on leverage and clout.

A number of side benefits also come with the move to Remy. As a new brand with a full, strong portfolio behind them, they will fill distribution gaps and move into important brand building accounts.

But, wait a minute, isn’t it a bit early to declare victory on the path to a turnaround? From the data I saw, for the four-week’s performance to Feb 24, the brand grew in SymphonyIRI data by 3.2% compared to a -5% for the year.

1967 ad
1967 ad

What about the consumer? What are the motivations that Cutty Sark provides to get a call for it? WSD suggest that its occasional presence on Mad Men, and the retro drinking influence may be helping. That could be, but is it enough?

As I read the article, I became more and more puzzled by the empty pronouncements of success just over the horizon. I can’t figure out the basis on which young consumers are discovering Cutty Sark. Is there a cocktail or signature drink that’s driving the brand? We’re told that Cutty “was created to be easy-drinking, easy-mixing and not particularly challenging.” So is water.

Here’s my favorite quote and an example of world-class marketing BS – “For me, I’m not looking to take business {from} the Scotch category, I’m already seeing us take business in bars from the Irish category.” Really? Cutty Sark is taking business from brands like Jameson that is among the fastest growing brands in the country?

Cutty Sark is an excellent brand with an interesting history. Legend has it that it was Cutty Sark that helped to create the expression the Real McCoy. The story goes back to prohibition and I found it here.

“One man who regularly sailed between Nassau and Rum Row was Captain William McCoy, of Scots origin and living in Florida, who began running liquor in 1921 using a schooner named Arethusa. By this time suppliers and distillers were often meeting the immense consumer demand with very poor quality liquor, and McCoy decided to make his reputation by supplying high quality products, chiefly Scotch whisky. This strategy worked well, to the considerable financial benefit of McCoy, whose name entered the English language as a result of the reputation he acquired.”

“In particular, McCoy ran large quantities of Cutty Sark…”

So there you have it. A brand built on authenticity and known as the Real McCoy
 is the subject of hype and marketing BS today.

Hey, Mr. Global Head Honcho of Cutty Sark: you have a brand with a great story. Why not try to leverage that provenance instead of making empty claims?

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New Booze Products: Brilliant and Dumb

Wine and Spirits Daily had two announcements about new spirits product recently. One makes sense and the other, well, you decide.

Highlander honeyGood Idea

The flavored whiskey category has been on fire with brands like Wild Turkey American Honey, Jack Daniel’s Tennessee Honey, and Jim Beam Red Stag among others. Now the folks from Dewar’s Scotch (owned by Bacardi) are entering the flavored whisk(e)y category with Highlander Honey, a scotch infused with honey.

Imagine, they have the audacity to try to break down the stuffiness and out-of-date sacred walls of the blended scotch category. Never mind that blended scotch growth has been declining to flat in the past decade while other whiskies (including malts) have been growing. It’s not about adapting to changing tastes, it’s about a stiff upper lip refusing to swallow change.

Check this out. The Diageo head of whisky outreach (huh? I think that’s a way of saying, ‘can I buy you a drink?’), was quoted as saying Scotch has too much “integrity” and “authenticity” to get into flavors. Diageo and integrity in the same sentence? My word! Also, the Scotch Whiskey Association is not very happy about it. Better to go down with the ship, eh, what?

Hey, it’s a good idea for the reasons I shared with Wine and Spirits Daily,

“It’s a terrific idea and well worth trying,” long-time industry exec Arthur Shapiro told WSD. ” First, the blended scotch market is declining and this could be a shot in the arm. Second, the flavored whiskey (US) brands have ‘greased the skids’ so consumer acceptance would be easier than it might have been before these brands came on the market. Third, it adds contemporariness to the scotch area and removes the stuffiness. Fourth, probably makes for a good mixed drink. Finally, I like the ‘seriousness’ of scotch and the fun of a flavored scotch product.”

Put that in your copper still and cook it.

Mama WalkerYou gotta be kidding me

Pernod Ricard, who until recently earned my respect for terrific innovations and new products, has launched what seems to be an April Fool’s joke.

They are introducing a line of new products under the Hiram Walker name called Mama Walker’s breakfast liqueurs. Apparently it’s intended to “tap into the comfort food, sweet and savory flavor combinations” trend (or is it fad?) not to mention the confectionary/cake vodka flavors. This breakfast of champions is available in Maple Bacon, Blueberry Pancake and Glazed Donut.

Come on folks, are you serious? Next thing you’re going to tell us is that they hardly taste artificial.

Can’t you just see the ad campaign?

“A bit hung over from a hard night of drinking? Looking for something to smooth out the rough edges? Forget about the all night diner and the bacon, eggs and pancake special. Try some of Mama Walker’s breakfast liqueurs… we’ll perk you right up with our original comfort booze. Just remember… your Mama knows best.”

Or:

“Tired of the same old breakfast? Cereal, eggs or fruit can be soooo boring… Start you day off right with Mama Walker’s breakfast liqueurs. What a great way to face the stress of what awaits you. Boss on your back? Kids on your nerves? Mama can help…Comes with or without a brown paper bag… But, remember, don’t eat breakfast and drive!”

Any thoughts on either product?

 

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