How do you keep your cool when there’s no pistachio in your pistachio ice cream? A woman who unwittingly bought the said concoction went nuts. Finding no pistachio in her pistachio ice cream, a woman on Long Island, New York, filed a lawsuit. And a judge who moonlights as a magician agreed she had a case.
Jenna Marie Duncan of Farmingdale’s class action suit could end in a delicious payout for her and others aggrieved by the artificial ice creams they bought. But it’s early days yet. The jury has to give its verdict first.
Duncan complained about the ice cream she bought from a Cold Stone Creamery outlet in Levittown, Long Island. The ice cream’s bright green colour, and pistachio flavour were entirely artificial. She checked the ingredients and found no pistachio among them.
She accused Cold Stone Creamery’s parent company, Kahala Franchising, of false advertising.
Federal judge Gary Brown, who moonlights as a magician, larded his ruling with lyrics from songs about ice cream.
“This delightful dispute lies at the crossroad between these celebrated treats,” Brown wrote. “It raises a deceptively complex question about the reasonable expectations of plaintiff and like-minded ice cream aficionados.”
Duncan and others who have bought pistachio ice cream from Cold Stone could each receive up to $50 under New York law. They could get more if the state legislature passes a bill raising the maximum award for false advertising damages to $1,000.
Duncan contended Cold Stone customers deserve high-quality ingredients, considering the prices. A small size starts at $7.50, according to Cold Stone’s website, and customers must pay more for waffle cones, bowls and extra mix-ins.
Selling the flavour, not the substance
The Cold Stone website shows many of its ice cream flavours are artificial. The mint ice cream has no mint, the orange ice cream has no orange and the butter pecan ice cream has no butter, says Duncan.
The pistachio ice cream she bought in July 2022, according to the Cold Stone website, has “pistachio flavouring,” made of water, ethanol, propylene glycol, natural and artificial flavours, and yellow and blue food colouring.
A Cold Stone Creamery manager said the flavours are artificial because some people are allergic to or don’t want nuts, even in their pistachio ice cream.
However, Duncan pointed out that many other brands, including Haagen-Dazs and Ben & Jerry’s, use real pistachios in their pistachio ice cream.
A legal expert said that though the Cold Stone website lists the various ingredients, customers aren’t likely to look it up to find out what the ice cream is made of.
Jeff Sovern, a consumer protection law expert at the University of Maryland, said: “Would the reasonable consumer say, ‘Wow, I really want some pistachio ice cream, and I see this is labelled pistachio ice cream, but before I order it, I’m going to go to the website and see if it actually includes pistachios?’” Sovern said. “Well, I don’t think the reasonable consumer would do that.”
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