Is it crazy to assume that a scoop of pistachio ice cream has to contain real pistachios? Or how about real butter in a bowl of butter pecans?
The courts could soon choose such essential questions surrounding a well-liked summer sweet.
A federal judge in New York has given the green light to a Long Island woman’s class motion lawsuit alleging that Cold Stone Creamery defrauded consumers after they purchased certain flavors that “did not contain the stated ingredients.”
Lead plaintiff Jenna Marie Duncan purchased her serving of pistachio ice cream in or about July 2022 at a Cold Stone Creamery store in Levittown, New York. According to her lawsuit, Duncan “reasonably believed that the pistachio ice cream she purchased from defendant contained pistachios.”
But Duncan later learned on the corporate’s website that the frozen dairy product didn’t contain pistachios – a member of the cashew family – but moderately “pistachio flavor,” which the lawsuit defines as a combination of water, ethanol, propylene glycol, natural and artificial flavors, Yellow 5 and Blue 1.
“When consumers purchase pistachio ice cream, they expect pistachios, not a blend of processed ingredients,” Duncan’s lawsuit states, noting that competitors like Häagen-Dazs use real pistachios of their ice cream.
Duncan also criticizes the ingredients in Cold Stone’s mango, coconut, orange, mint, butter pecan ice cream and orange sorbet.
The Associated Press left a message in search of comment from Duncan’s attorney.
U.S. District Judge Gary R. Brown, whose sometimes tongue-in-cheek rulings are peppered with ice cream song lyrics — from Louis Prima’s “Banana Split for My Baby” to Weird Al Yankovic’s “I Love Rocky Road” — wrote that the case “raises a deceptively complex question about the reasonable expectations of the plaintiff and like-minded ice cream lovers.”
Can a consumer who orders pistachio ice cream expect real pistachios?
“And if the answer is no, that should leave a bitter aftertaste,” wrote the judge, whose decision was released in May.
Brown acknowledges in his ruling, which now allows the case to proceed, that Duncan’s alleged claims of deceptive practices are “prima facie plausible” under New York’s General Commercial Law in the case of the pistachio ice cream she purchased. The state law prohibits “fraudulent acts and practices in the conduct of business, trade or commerce or in the rendering of services.”
Messages in search of comment were left with lawyers for Kahala Franchising LLC, the franchisor of nearly 1,000 Cold Stone stores worldwide. One of the lawyers declined to comment on the case when contacted by The Associated Press.
In court filings, Kahala asked for the lawsuit to be dismissed on the grounds that an in depth list of ice cream ingredients is posted online. A regional Kahala plant manager said in court filings that no flavor sign on the Levittown store indicates that the ice cream is “made with” a selected ingredient.
Regarding the flavors mentioned within the lawsuit, he said, “Consumers can tell for themselves that the ice cream does not contain any ‘pieces’ of seemingly specific ingredients that would indicate that a particular ice cream contains a particular ingredient.”
There were Numerous lawsuits Over the years, lawsuits have been filed against products that didn’t live as much as their promoting guarantees, including lawsuits against Fast food restaurants for not providing large, juicy burgers or a Lemonade doesn’t offer the promised health advantagesThere have also been lawsuits over products that didn’t contain the ingredients they claimed to.
Brown notes in his ruling that a few of these disputes have led to an “etymological analysis” of whether a word like vanilla is utilized by an organization as a noun to confer with an actual ingredient in a product or just as an adjective to explain a flavor.
However, the judge acknowledged that it’s a difficult argument for an ice cream maker in the case of modern flavors, noting, “When someone orders an ice cream cone with ‘Moose Tracks,’ the hoof prints of the largest member of the deer family function linguistically as an adjective.”
