A popular ice cream chain is being sued for deceptive advertising after a woman from Long Island, New York discovered that its pistachio ice cream does not actually contain pistachios.
Farmingdale, New York resident Henna Marie Duncan has filed a class action suit against Cold Stone Creamery. Duncan claimed that in July 2022, she bought pistachio ice cream from a Cold Stone outlet in Levittown, New York, under the assumption that it contained real pistachios. (Related: Unilever recalls Magnum ice cream in the U.K. and Ireland due to possible metal and plastic contamination.)
However, Duncan later discovered on the company's website that the ice cream did not contain pistachios but instead had "pistachio flavoring." According to the lawsuit, this flavoring is made up of a mixture of artificial and natural flavors, including ethanol, propylene glycol, water and food coloring – Blue 1 and Yellow 5.
A list of ice cream ingredients on Cold Stone's website confirms that the pistachio ice cream does not contain actual pistachios but only "pistachio flavoring." Only its pistachio pudding ice cream contains actual pistachio nuts.
The lawsuit asserted that Duncan would not have bought the ice cream, or would have paid significantly less for it, if she had known it didn’t contain actual pistachios.
The suit stated: "When consumers purchase pistachio ice cream, they expect pistachios, not a mixture of processed ingredients." Duncan highlighted that other brands, like Haagen-Dazs and Ben & Jerry’s use real pistachios in their pistachio ice cream.
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Additionally, the lawsuit mentioned that Cold Stone’s flavors, such as butter pecan, coconut, mango, mint and orange, as well as its orange sorbet, are simply flavored to taste like their namesakes, which Duncan argued is misleading for consumers.
Lawsuit can move forward, judge says
Cold Stone Creamery’s parent company, Kahala Franchising, LLC, could not persuade a federal judge to dismiss a class action lawsuit alleging deceptive labeling of its pistachio ice cream, which is made with synthetic ingredients instead of real pistachios.
On May 2, the U.S. District Court for the Eastern District of New York rejected Kahala’s argument that the lawsuit was merely recycling the logic of dismissed cases over synthetic vanilla flavorings. Judge Gary R. Brown ruled that the class action suit against Cold Stone Creamery could move forward.
Brown noted that the case presented a complex question about what consumers reasonably expect when they buy pistachio ice cream. He questioned whether consumers should anticipate real pistachios and if not, whether they would feel deceived.
In his ruling, Brown found that Duncan’s claims of deceptive practices under New York’s General Business Law are plausible. This law prohibits deceptive acts in business or commerce.
In court documents, Kahala argued for the case’s dismissal, stating that detailed ingredient lists are available online and that no signage at the Levittown location indicated specific ingredients in the ice creams.
The court evaluated several factors to determine the validity of the plaintiff’s claims, including the explicit representations of ingredients, the availability of ingredient lists and the use of flavor names. The court was not convinced by Kahala’s argument that the absence of “real” ingredients on the online list undermined the plaintiff’s claims.
Brown highlighted that similar lawsuits have addressed misleading advertising, such as fast food restaurants not delivering on promises of large burgers or beverages not offering claimed health benefits. He noted the difficulty of determining whether terms like “vanilla” are used to denote actual ingredients or just describe flavors.
Ultimately, the court allowed the General Business Law claims and the express warranty claim regarding the pistachio ice cream to proceed but dismissed claims related to other flavors and those for implied warranty and unjust enrichment.
Watch the following video about a legal expert discussing the Cold Stone ice cream flavor lawsuit.
This video is from the Daily Videos channel on Brighteon.com.
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Sources include:
ColdStoneCreamery.com [PDF]
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