The $5 million lawsuit claims Cold Stone was falsely advertising pistachio in their ice cream. Credit: Newsday staff

A Farmingdale woman is the lead plaintiff in a class-action lawsuit against Cold Stone Creamery’s parent company seeking $5 million after she said her pistachio ice cream was missing nuts.

Jenna Marie Duncan ordered a scoop of pistachio ice cream from a Levittown Cold Stone Creamery shop in July 2022 and didn’t “like it” or “love it,” accusing the ice cream franchise of false advertising.

The lawsuit, filed in the Eastern District of New York against Cold Stone’s Arizona-based parent company, Kahala Franchising LLC, argues the company uses “deceptive marketing practices [that] defies reasonable customers’ expectations” after naming ice cream flavors like pistachio, mango, coconut and orange sorbet, “despite the fact that the products do not contain these specified ingredients.”

Duncan’s Los Angeles-based attorney declined to comment about the case.

“Consumers reasonably expect ice cream products to contain the ingredients plainly described in their name,” the lawsuit states. “Had plaintiff and other consumers been aware that the products do not contain their represented ingredients, they would not have purchased the products or would have paid significantly less for them.”

Defense attorneys for Cold Stone said it was clear the ice creams were flavors and did not suggest they contained certain ingredients, just as cotton candy ice cream doesn’t contain actual cotton candy.

“There are no visual representations that the ice cream contains the alleged missing ingredients; there are no representations that the product is made with any specific ingredient,” attorneys for Cold Stone argued in a motion to dismiss. "The names of the flavor placards … are commonly understood to be flavors, particularly in the ice cream context.”

U.S. District Judge Gary R. Brown in Central Islip allowed the pistachio lawsuit to proceed, but dismissed a second complaint toward Cold Stone’s gelato flavors, saying Duncan did not offer evidence about missing ingredients in gelato.

“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: should consumers ordering pistachio ice cream at one of defendant’s establishments expect that product will contain actual pistachios? And if the answer is no, should that leave them with a bitter aftertaste?”

Similar lawsuits, such as challenging the vanilla flavoring in Dreyer’s Ice Cream, Starbucks Acai Refreshers and the meat content and presentation in Burger King commercials have become more common, said Louis Tompros, a Harvard University Law School lecturer on patent law and an intellectual property litigator.

He said many class-action cases are sought after by law firms, which can usually reach a settlement in a case.

“It’s fascinating with these food claims that straddle the line all the time between false advertising and advertising puffery,” Tompros said. “It’s definitely OK for someone to say, ‘We have the best ice cream in the world,’ because everyone knows you can’t measure that. They can run into trouble when you make a claim that looks or sounds like a statement of fact and the fact is false.”

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