A California court recently held that Four Loko is not protected from liability in a wrongful death lawsuit. Fiorini v. City Brewing Co., LLC, 2014 WL 5743133 (Cal. Ct. App. Nov. 6, 2014). In this case, the parents of a 23-year-old college student sued the beverage company after their son drank two cans of Four Loko and then ended up in a confrontation with police that led to his death. The judge ruled that the defendant was not immune to liability under either dram shop laws or as a seller of a common consumer product. This ruling has received a meaningful amount of coverage (see, e.g., these articles) and is certainly notable as a departure from past precedent in this area. However, contrary to the perceived panic in current publications, there are a number of specific reasons why this ruling shouldn’t open the floodgates to a wave of liability lawsuits against beverage manufacturers.
First, the case is factually unique. Four Loko was one of the first caffeinated alcohol beverages on the market that came premixed. And not only was this combination unique, but Four Loko was sold in an unusually large package size and had high levels of both alcohol and caffeine. Plaintiffs use this point to argue that they could not have anticipated how the interaction of caffeine and alcohol would affect their (or their children’s) bodies. However, with the publicity around Four Loko and the increased awareness within the general public for caffeinated alcohol beverage products, this argument is less likely to be effective in the future.
Second, Four Loko had a number of labeling and marketing issues. The labeling issues have since been resolved. Federal regulators struggled out of the gate with how to deal with caffeinated alcohol products and the ensuing catch up played out very publicly with Four Loko as a quasi-test case. An alleged lack of clear labeling also supports the ignorance argument that plaintiffs could not have understood the contents of what they were consuming.
In addition to labeling, critics also argued that the Four Loko product was marketed irresponsibly. The colorful packaging, graphic text, and tone of the marketing campaign alleged targeted young consumers. Most alcohol beverage producers are sensitive to these concerns and market their product responsibly, respond to consumer concerns quickly, and act in accordance with the industry self-regulation.
Third, the judge effectively limited the decision to its facts by suggesting that Four Loko was a singular product. In addition, buried in a footnote to seemingly downplay the force of this meaningful counterpoint, the judge rejected the comparison between a more common product, like Irish coffee, and Four Loko based on the fact that the caffeine in Four Loko is an additive rather than a natural ingredient. Id. at *11 n.14. Regardless of whether or not you buy this distinction, these qualifiers may make the case hard to rely on even in cases involving caffeinated alcohol beverage products. Reliance on the case would also fail when applied to more common caffeine/alcohol combinations (like rum and coke, a coffee stout, or an energy drink and vodka) because: 1) the individual is knowingly purchasing a caffeinated alcohol beverage, so he or she should understand the contents of the ultimate product, and 2) the caffeine comes from a “natural” or whole product, rather than as an individual chemical additive. Even as a Four Loko-type of caffeinated alcohol beverage product is becoming better accepted and understood, so it will eventually qualify as a common consumer product.
Fourth, the judge in Fiorini rejected a contrary ruling in Florida by distinguishing California’s dram shop law and common law rules regarding proximate cause as narrower in scope than the ones in the Florida case (again, hidden away in a footnote). Id. at *10 n.11. This gives other jurisdictions an easy hook to dismiss the California ruling as limited to the peculiarities of California law.
Finally, and most notably, this ruling merely forecloses one of many defenses that Four Loko has against this lawsuit. As discussed in a prior article, Four Loko has many strong arguments against liability for which it seems the plaintiffs currently have no clear silver bullet. Until a court can address the causation and foreseeability issues in the context of claims of this nature, plaintiffs will struggle to recover from beverage manufacturers.