A Truly Crazy Case: Cold Stone Creamery Faces Lawsuit Over Lack of Real Pistachios in Pistachio Ice Cream

Is it crazy to assume that a scoop of pistachio ice cream must contain real pistachios? Or how about real butter in a pecan butter dish?

Such important questions about a favorite summer treat could soon be decided by the courts.

A federal judge in New York has given the green light to a class-action lawsuit from a Long Island woman who claims consumers are being deceived by Cold Stone Creamery when they buy certain flavors that “do not contain the ingredients represented.”

Lead plaintiff Jenna Marie Duncan purchased her serving of pistachio ice cream at a Cold Stone Creamery store in Levittown, New York around July 2022. According to her lawsuit, Duncan “reasonably believed that the pistachio ice cream that she purchased from the defendant contained pistachios.”

But Duncan later discovered, after reading the company’s website, that there were no pistachios – a member of the cashew family – in the frozen dairy product, but rather “pistachio flavoring,” which is defined as a mixture of water, ethanol, propylene glycol, natural and artificial flavor. , Yellow 5 and Blue 1, according to legal action.

“When consumers buy pistachio ice cream, they expect pistachio, not a blend of processed ingredients,” Duncan’s lawsuit says, noting that competitors like Haagen-Dazs use real pistachios in their ice cream.

Duncan also takes issue with the ingredients in Cold Stone’s mango, coconut, orange, mint, butter and pecan ice creams and its orange sorbet.

A message was left by the Associated Press seeking comment from Duncan’s attorney.

U.S. District Court Judge Gary R. Brown, whose sometimes tongue-in-cheek ruling is peppered with song lyrics about ice cream — from Louis Prima’s “Banana Split for My Baby” to Weird Al Yankovic’s “I Love Rocky Road” — writes how the case “raises a deceptively complex question about the reasonable expectations of the plaintiff and like-minded ice cream aficionados.”

Should a consumer who orders pistachio ice cream expect real pistachios?

“And if the answer is no, that must leave them with a bitter taste,” 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 allegations of deceptive practices under New York’s General Business Law “are plausible on their face” when it comes to the pistachio ice cream she purchased. misleading acts and practices in the conduct of any business, trade or commerce or in the provision of any service.”

Messages were left seeking comment from attorneys for Kahala Franchising LLC, the parent 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 case to be dismissed, arguing that a detailed list of ice cream ingredients is published online. A Kahala regional director of operations said in court filings that no flavor posters at the Levittown location indicated that the ice creams are “made with” any specific ingredient.

For the flavors mentioned in the lawsuit, he said that “consumers are able to see for themselves that there are no ‘chunks’ of what appear to be any specific ingredients in the ice cream that would indicate that a particular ice cream contains a particular ingredient.”

There have been numerous lawsuits filed over the years over products that didn’t live up to the advertising hype, including lawsuits against fast food restaurants for not providing big, juicy burgers or a soda does not provide the promised health benefits. There have also been lawsuits over products that do not contain the ingredients they are supposed to contain.

Brown notes in his decision that some of these disputes have led to an “etymological analysis” about whether a word like vanilla is being used by a company as a noun to reflect an actual ingredient in a product, or simply as an adjective to describe a flavor.

But the judge acknowledged that it’s a tricky argument for an ice cream maker when it comes to modern flavors, noting that “when someone orders a ‘Moose Tracks’ ice cream cone, the footprints of the largest member of the deer family act linguistically as an adjective. .”