A real nut case: Cold Stone Creamery faces suit over lack of real pistachios in pistachio ice cream

Is it crazy to assume that a scoop of pistachio ice cream should contain real pistachios? Or how about real butter in a bowl of butter pecans?

Such weighty 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 Long Island woman’s class action lawsuit alleging that consumers are being duped by Cold Stone Creamery when they purchase certain flavors that “do not contain the ingredients.”

Lead plaintiff Jenna Marie Duncan purchased her batch of pistachio ice cream in or around 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 pistachio. ”

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 flavors. , Yellow 5 and Blue 1, according to the lawsuit.

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

Duncan also has issues with the ingredients in Cold Stone’s mango, coconut, orange, mint, butter-pecan ice cream and the 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 court ruling is sprinkled with lyrics over ice — 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 enthusiasts.”

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

“And if the answer is no, that should leave a bitter taste,” wrote the judge, whose ruling was announced in May.

Brown, in his ruling, which now allows the case to proceed, acknowledges that Duncan’s alleged claims of deceptive practices under New York’s General Business Law “are prima facie plausible” when it comes to the pistachio ice cream she purchased. State law prohibits “deceptive acts and practices in the conduct of any business, trade or commerce or in the rendering of any service.”

Messages seeking comment were left with attorneys for Kahala Franchising LLC, the parent franchisee of nearly 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 ingredients was published online. A Kahala regional director said in court filings that no flavor sign at the Levittown location indicated the ice creams were “made with” a particular ingredient.

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

Numerous lawsuits have been filed over the years over products that don’t live up to the advertising hype, including lawsuits against fast food restaurants for not providing big, juicy burgers or a soda offers no promised health benefits. There have also been lawsuits over products that do not contain the ingredients they claim to contain.

Brown notes in his ruling that some of these disputes have led to an “etymological analysis” over whether a word like vanilla is used by a company as a noun to represent an actual ingredient in a product, or simply as an adjective to describe the product. a taste.

But the judge acknowledged it’s a tough argument for an ice cream manufacturer when it comes to modern flavors, noting: “When someone orders a ‘Moose Tracks’ ice cream, the hoof prints of the largest member of the deer family act linguistically. as an adjective.”