‘Flavoured’ vodka definitely not whisky, court rules

The global industry watchdog, the Scotch Whisky Association (SWA), has been at loggerheads with local liquor producer Milestone Beverage over its King Arthur and Royal Douglas “whisky-flavoured spirit aperitifs” since 2013.

In 2017, the dispute spilled over into the North Gauteng High Court, where Judge Elizabeth Kubushi ended up issuing an interdict against Milestone.

The company then turned to the Supreme Court of Appeal (SCA), in a bid to have the ruling overturned. But the appellate court on Friday, too, found in favour of the SWA.

The crux of the SWA’s case was that Milestone was trying to pass off its vodka-based products as Scotch whisky – despite being neither Scottish nor whisky.

The association had pointed to the labelling and the use of the tartan pattern along with the names of the products, saying they conveyed “the idea and concept of United Kingdom and / or Scottish origin”.

It had also argued the product was marketed as a whisky on Milestone’s website.

Milestone, meanwhile, had claimed ‘Douglas Royal’ was in fact named after a relative of the company’s owner. It had conceded the products were, in fact, not whisky but “vodka products to which whisky flavouring is added”.

The company had argued, however, they were labelled as such.

But in the SCA, Judge Visvanathan Ponnan ultimately found the names and labelling were “designed to evoke a Scottish connection” and “intended to create a clear and vivid impression on people seeing them, of an association with Scotland”.

“The first impression on a customer passing through a liquor store is likely to be that each product is a whisky,” the judge said.
And, he went on, expressions on the labelling including ‘premium quality’ and ‘double distilled’ were likely to reinforce that impression.

“Notably, despite the base spirit being vodka, there is no use of any vodka-associated indicia or geographical regions traditionally associated with vodka, such as Russia. There is, in short, nothing to suggest the true nature of the product being sold and everything to suggest that it is what it is not,” Ponnan said.

He found even on Milestone’s own version – that the products were “whisky-flavoured” – it was misleading because it was “impossible to achieve such a flavouring”.

The judge cited the evidence put forth by Shona Glancy, a scientist employed by the Scotch Whisky Research Institute in Scotland, that “an artificial additive could not replicate the complex flavour and aroma of whisky”.

In addition to being interdicted from misrepresenting their products, Milestone was given two weeks to destroy all of its offending products and advertising material.

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