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Woman sues Cold Stone Creamery over pistachio ice cream having no pistachios

Is it crazy to think that a scoop of pistachio ice cream should contain real pistachios? Or how about a dish of butter pecan that contains real butter?

Such important questions about favorite summer dishes may soon be decided by the court.

A federal judge in New York has approved a Long Island woman's class action lawsuit claiming consumers are being deceived by Cold Stone Creamery when they buy certain flavors that “do not contain their described ingredients.”

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

But Duncan later learned after reading the company's website that the frozen dairy product did not contain pistachios — a member of the cashew family — but instead contained “pistachio flavor,” which is defined as a mixture of water, ethanol, propylene glycol, natural and artificial flavors, Yellow 5 and Blue 1, according to the lawsuit.

“When consumers purchase pistachio ice cream, they expect real pistachios, not a blend of processed ingredients,” Duncan's lawsuit states. He added that competing companies such as Haagen-Dazs use real pistachios in their ice cream.

Duncan also questions the ingredients used in Cold Stone's mango, coconut, orange, mint, butter pecan ice cream 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 humorous court rulings have also included references to song lyrics about ice cream — from Louis Prima’s “Banana Split for My Baby” to Weird Al Yankovic’s “I Love Rocky Road” — writes about how the case “raises a deceptively complex question about the reasonable expectations of plaintiffs and like-minded ice cream lovers.”

Should a consumer ordering pistachio ice cream expect real pistachios?

“And if the answer is ‘no,’ will that not leave them feeling bitter,” wrote the judge, whose ruling was issued in May.

Brown acknowledged in his ruling, which now allows the case to proceed, that Duncan's alleged claims of deceptive behavior under New York's general business law are “prima facie reasonable” when it comes to buying pistachio ice cream. The state law prohibits “deceptive acts and practices in the conduct of any business, trade or commerce or in the rendering of any service.”

Messages were left seeking comment from attorneys for Kahala Franchising LLC, the parent franchisor of about 1,000 Cold Stone stores worldwide. One of the attorneys declined to comment on the case when contacted by The Associated Press.

In court records, Kahala sought to have the case dismissed, arguing that a detailed list of the ice cream's ingredients is published online. A regional director of operations for Kahala said in court records that none of the flavor placards at the Levittown location indicate that the ice cream is “made with” any particular ingredients.

As for the flavors mentioned in the lawsuit, he said that “consumers can see for themselves that there is no specific ingredient in the ice cream to indicate that a particular ice cream contains a particular ingredient.”

In the past few years, many lawsuits have been filed over products that do not live up to what is advertised. These include lawsuits against fast food restaurants that do not serve big, juicy burgers or sodas that do not serve health benefits. In addition, lawsuits have been filed over products that do not contain the ingredients they claim to contain.

Some of these disputes have led to “etymological analysis” over whether a term like vanilla is being used by a company as a noun to refer to an actual ingredient in a product, or simply as an adjective to describe a flavor, Brown wrote in his ruling.

But the judge acknowledged that this is a difficult argument for the ice cream maker when it comes to modern-day flavors, saying that “when someone orders a 'Moose Tracks' ice cream cone, the hoof prints of the largest member of the deer family function linguistically as an adjective.”


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