Monday, March 6, 2017

How I didn't get sued (yet): the bitter tale of ArKay alcohol-free whiskey

Update: I got a threatening email and Facebook post after writing this post. I'll post them below.

On Saturday I got a strange post on The Gray Report Facebook page announcing, "ArKay Beverages Ltd sues The Huffington Post, CultMoo and Amazon for deceptive advertising and unfair competition."

The company paid for a press release the day before but apparently nobody noticed; hence the Facebook nudge. ArKay makes alcohol-free imitation booze. I reviewed ArKay's certified Halal whisky-flavored drink in 2012, publishing my post just one day before the Huffington Post. The Huffington Post got sued* and I didn't.

* More accurately, the Huffington Post was announced as a lawsuit target and I wasn't. While the press release claims, "ArKay Beverages Ltd Grand Caymans Cayman Islands is filing a law suit against Huffington Post, CultMoo and Amazon and is seeking hundred on millions of dollars [sic] in damages," it doesn't say in what court the suit will be filed.

I hope that this suit is filed in a U.S. court because any good First Amendment lawyer will squash it like a bug. But you never know: Maybe ArKay will file in the Cayman Islands, where Amazon at least probably does business. I don't know about Cayman Islands' laws but it would be a shame if I could never again go scuba diving there.
But of course, as of right now I'm not one of ArKay's targets.

I spent part of my weekend following this weird story, even though there is some risk in writing this post because as I told one of the proprietors of Cultmoo by email, "it sucks to get sued." I suppose this is a relatively benign preview of the chilling effect our new administration would like to give journalists. So here's what I know.

In November 2011, ArKay announced that it was releasing the world's first alcohol-free whiskey. (It turns out it wasn't actually the first, but that's not important here.) I contacted the company and asked for a sample. Presumably people at Huffington Post and Cultmoo did the same.

Longtime readers of this blog will be surprised to know that my main theory for why I am not on the list of defendants was because my review was more generous than others'. Here's my review. Here's the Huffington Post's review. The latter is odd because it has no byline, yet claims eight staffers tasted it and hated it.

Let me state this clearly: I completely, 100% defend Huffington Post's right under the First Amendment to run the review that it did. That said, it's not great writing or editing, as it allows unnamed tasters to take potshots in quotes at the product. But I reiterate, it is completely legal under U.S. law.

In June 2012, I was contacted by ArKay again. A staffer using the email "" wrote, "We have improved ArKay, we got now identical smell and aroma of whisky! Do you need a fresh sample sent to you?" I agreed to try it.

I didn't like it. I preferred the previous formula, and told the company so by email. I decided not to write about it because I didn't see any reason to rip an obscure product that I didn't like.

As far as I can tell, the Cultmoo video team didn't review ArKay until 2013. This video is not the one cited in ArKay's online complaint.

I don't know when ArKay decided to release an entire lineup of fake booze, including alcohol-free rum, vodka and tequila (which might be a copyright violation as Tequila is a protected place name.)

In January 2015, Cultmoo reviewed this lineup. This video is the subject of ArKay's ire. It's snarky, but it is legitimate criticism and is 100% covered by the First Amendment. Moreover, the critic in me watches this video and sees two guys giving the products a fair appraisal. One is nicer than the other, but they're both trying to imagine a use for these products. I hope Cultmoo doesn't take down this video. I support them 100%.

The Amazon connection is a little different. At one time, ArKay sold its products on Amazon. The reviews upsetting the ArKay people are customer reviews. These are, to me, more damning than media reviews, because for me and the Cultmoo guys and presumably the Huffington Post crew, we are whiskey drinkers trying to put ourselves in the position of someone who cannot drink. The reviewers were presumably actually in that situation, because why else would you order it? Here is the review page.

I can see why ArKay would want these reviews taken off Amazon if its products have changed. However, this press release doesn't seem like a great way to go about it. A quiet request might have worked, but now Amazon has to worry about precedent if it gives in.

So that's what happened on the media coverage. Now here are some other weird and interesting things I learned about ArKay this weekend using nothing more sophisticated than a Yahoo search.

* I assumed Muslims would be a big market for alcohol-free whiskey, but in fact, many Muslims on this forum insist that such a product is "Haram;" i.e., forbidden by Islamic law. I have less than no opinion on that question, so don't ask.

* In October 2016, ArKay claimed its product has -- oh, I can't paraphrase this. Enjoy:

Back in 2007 ArKay Beverages Sylvie Grattagliano‘s husband created the WARM molecule called today ArKay WARM (Alcoholsynth). ArKay was introduced to the market in 2011 and since everyday millions of peoples drinks Arkay around the world. “It is there alongside the whisky and the vodka, pour Arkay WARM Alcoholsynth Substitute into your cocktail, then you’ll have the feeling of the alcohol without damaging your liver and your heart.” Said Richard Simmons ArKay VP of sales at ArKay Beverages Inc.

* Because millions of peoples drink Arkay around the world, in 2014 the company invited "African wealthy individuals to invest in the USA in a new concept of ArKay Non Alcoholic Bar & Lounge that will serve food and non-alcoholic cocktails during the day and transform itself in a fun place at night." Here's a link.

Noteworthy in that story: "If you are a foreigner investor and eligible, ArKay will help to get your US residence for you and your family. A minimum investment of USD 1 million is required. If you are interested in opening your own ArKay N/A bar and club."

There actually was a U.S. green-card program for foreign investors, though who knows what's going on with that under the new administration.

* ArKay's own site explains why it has decided to come forward to complain about Amazon and Huffington Post:

"In 2013, ArKay officially ended its relationship with (Editor's note: There are 'verified purchases' on Amazon from 2014.) This announcement comes on the heels of customers logging in to to read posts about ArKay, under the assumption that Amazon is still selling ArKay Alcohol Free Liquors. As a result, customers have become confused and now mistakenly believe that they can order ArKay products on, when in fact they cannot; still and The Huffington Post are posting outdated reviews about Arkay drinks that are not sold anymore on their platform and that are discontinued." (emphasis mine)

That last part gives me pause. It is chilling effect distilled. What writer keeps track of minor changes in the formula of products they reviewed five years ago? How many outdated reviews are there on the Internet? What if somebody at a big media company like Huffington Post had to go through the site and weed out every one?*

(* Actually, if that meant Huffington Post had to hire and pay a couple of wordsmiths, instead of taking advantage of free labor, that would be ... nah, it's still bad.)

It was tempting, and probably sensible, to not write anything about ArKay's unfounded and unsustainable complaints. I also considered the idea that even this post is more publicity than the company deserves.

But the story is weird and interesting. And writers cannot live in a climate of fear. I didn't get sued, yet, but ArKay has left a bitter taste in my mouth.

Update: Here's the email I got the same morning this post went live: 

I also got this threatening post on my Facebook page:

See you in court.

Follow me on Twitter: @wblakegray and like The Gray Report on Facebook.

1 comment:

Scott said...

Hopefully you'll post the complaint when and if they actually serve you!