Vicarious Inebriation? Vodka Company Forced To Recall Vodka That Claimed 40 Percent Alcohol While Delivering 81 Percent

imagesThere is a story out of Canada that could make for a fascinating torts case.  Georgian Bay Vodka has been told to recall a batch of its vodka because the bottle shows  40 per cent alcohol by volume, but the alcohol content is actually 81 per cent.  Obviously that can present an immediate health risk, but what if someone became intoxicated from a couple drinks and caused an accident?  Could this be a case of vicarious liability for inebriation?

Most manufacturers get few complaints for delivering more product than advertised.  However, twice the alcohol in vodka could easily lead to people using standard measurements for drinks only to find themselves intoxicated (or above the legal limit for driving) in less than half of the time.

The Liquor Control Board of Ontario issued the recall order for Batch 19 with the LCBO No. 446559.  The board found the product not safe for consumption and ordered its removal from shelves.

So what is someone is arrested for DUI and says that they only had on cocktail.  The currently low BAL levels make even one drink enough to trigger a DUI charge. This stuff will guarantee it.  Can they claim ignorance or mistake?  Probably not. The law requires the driver to monitor not just their consumption but physical state.  Moreover, given the low BAL levels, any drinking before driving today is dealt with harshly.

Ok, but what if someone gets into an accident?  Can they or the third party sue for negligence?  That would seem a closer question.  The driver would again face tough plaintiff’s conduct questions in failing to properly monitor their own physical condition before going behind the wheel. However, there is often a bit of a delay before alcohol is fully absorbed into the blood stream.  (Though the rate of absorption and degree of absorption of alcohol is highest with vodka in comparison to beer or wine).  Someone could have had a single drink but then found themselves with a lower response time behind the wheel.  Indeed, the level of intoxication could be claimed as not their fault.  While the person expected some alcohol, this is a massive difference.  The third party might have a stronger claim after all the defective product is directly linked to the accident despite the intervening force of the driver.

Hopefully the recall will avoid such accidents or litigation but it would present rather novel tort issues.

The vodka is produced by the Toronto-based Georgian Bay Gin Company.

 

18 thoughts on “Vicarious Inebriation? Vodka Company Forced To Recall Vodka That Claimed 40 Percent Alcohol While Delivering 81 Percent

  1. This may be a simple semantics problem caused by the silly difference between percentage and proof. If an a distilled spirit is 80 proof, then it is 40% alcohol. If this product is actually 81% alcohol, then it is 162 proof. I think they have a large market in Russia.

  2. Great mistake – a formerly obscure vodka company is now on the public radarscope.

    The recalled vodka gets diluted and reissued.

  3. Someone got the label mixed up that’s the difference between proof and percent.but if the actual percent was 80 it’s through the roof!!!

    • You find out the hard way. takes about one swallow. We had a boat out of Norway that had a special tank looked one for water or other….but they had filled it with (back then) 50 Cents a gallon rum from Venezuela ( We were in …Sous le Vent group of Tahiti…. but the the big deal mix was opena coconut drink a little of the milk and top off with rum and then use a straw. Bad Combination it was the Norske’s told us 80 proof and they took it like water. But they were very welcome at the cruising fleet deck parties. Medusa was the name of their boat. It’s all coming back …. slowly…..never again.

  4. The liability of Georgian Bay Vodka may depend on whether the driver was over the DUI limit. On a straight negligence theory, it is certainly foreseeable that someone would consume the vodka and then drive. However, intervening criminal acts normally cut off liability. Sooooooo, I suspect that if the driver was within legal limits, there might be liability on the part of Georgian Bay, but not if the driver was in violation of the law. On the other hand, it might be a pretty neat products liability case.

    • This could fall into an exception to the intervening criminal act rule in many jurisdictions. The version of the exception in the Restatement is “If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby.”

      • Just to jump in with something not posted SF is with drawing from the combined JTTF. My first thought other than cut their federal funds is examine it as a potential Martial Law site to protect the citizens. which I believe is the prescribed constitutional step to take but it would be a first. the other is let them go it alone and stop air traffic and other interstate travel routes.

        Just half right half guessing but arresting those who did it would be on the top of my list as supporters of terrorism under the Patriot Act. We should see this as as separate thread sooon.

        • Putting the 82nd on alert for deployment is not unusual, Notifying the California NG to prepare for activation is not unusual and probably is in the plans for border use anyway. Doing a training exercise with FCC etc. and FEMA with some military backup also not unusuals – just normal training It’s also useful training excercise for other portions of the government

  5. 1. Hope someone scarfs some up and holds onto it; the bottles will be worth a fortune, like wrongly-printed stamps.

    2. “law requires the driver to monitor not just their consumption but physical state”

    To legal scholars: Doesn’t this provide an avenue for appeal? How is a driver trained to “monitor his/her physical state”?

    3. ” there is often a bit of a delay before alcohol is fully absorbed into the blood stream. (Though the rate of absorption and degree of absorption of alcohol is highest with vodka in comparison to beer or wine)”

    Per Rutgers School of Alcohol Studies (a real institution located on Busch Campus in Piscataway, NJ), Ethyl Alcohol takes 6 minutes after consumption on an empty stomach to enter the bloodstream. The form of drink makes no difference in rate of absorption; only the possible stomach contents, or medications taken, can affect absorption.

    How do I know? I have taken part of their studies into the genetic link of alcoholism, as my Grandfather on my Father’s side was a alcoholic. Alcoholism jumps a generation, and, therefore, I do not drink.

    (But, per my #1 above, I sure wish I could have gotten hold of some of those bottles as an investment!)

    • ExpatNJ – alcoholism does not always jump a generation. In some cases, it is generation after generation after generation.

  6. Holy cats, that’s high proof. Unless you’re Russian (I’m so not PC, and a bad bad person but I couldn’t resist), this would come as one hell of a shock to someone putting it down neat. In a cocktail they might not notice it until it walloped their blood system.

    I’ve heard people who drink moonshine know to be a bit ginger in testing someone’s brew.

    Now, someone like me, a teetotaler, will get very tipsy off of a single drink. Drinking even one drink and driving is not even a question. And if my one drink had double the proof of vodka, I’d probably be embarrassingly inebriated.

    As for the law’s requirement to monitor a physical state, I think abstaining is the only way to ensure that. Inebriation affects one’s judgement, so by definition, how can one self monitor when one is impaired? That’s what friends are for, I suppose, or just not drinking, if you plan on driving.

    Oh, this reminds me. I never liked the taste of alcohol. In order for me to even sip vodka, I would get a glass jar, and fill it halfway with vodka and sliced citrus or other fruits (even cucumber), and put it in the freezer for a few days. The vodka would not freeze, but would be ice cold, and have a lovely flavor…for those who hate the actual flavor of vodka. This was a great base to use in cocktails, or as a sipping vodka for vodka haters.

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