Here’s a scoop from Long Island: A federal judge has ruled that a woman can sue an ice cream company after she found that her pistachio ice cream had no pistachios in it.
Jenna Marie Duncan of Farmingdale said that when she ordered ice cream from the Cold Stone Creamery in Levittown, her taste buds were tricked. Now, a lawsuit she filed could bring a delicious payout for ice cream lovers nationwide.
Duncan went home, looked up the ingredients and found that she was right, according to her civil suit: The ice cream's bright green color and pistachio flavor were entirely artificial. She then filed a class-action case against Cold Stone Creamery’s parent company, Kahala Franchising, accusing it of false advertising.
A federal judge recently determined that the case can move forward. And if a jury agrees with Duncan, an untold number of ice cream connoisseurs could be compensated for the icy imitations they ate in the past.
Duncan and others who have bought pistachio ice cream from Cold Stone could each receive up to $50 under New York law. Meanwhile, a bill currently pending in the state Legislature would increase the maximum award for false advertising damages to $1,000, plus however much money someone spent on an allegedly deceptive purchase.
Kahala Franchising and Duncan’s attorneys did not respond to requests for comment.
Yesh, a manager at the Cold Stone Creamery on 42nd Street in Manhattan who declined to give his last name, said the flavors are artificial because some people are allergic to or don’t want nuts, even in their pistachio ice cream. He said customers can mix in real peanuts, pecans or almonds, but pistachios are not listed as a mix-in option on the menu.
Jenna Marie Duncan's lawsuit features a photo of an ice cream display with a flavor labeled "Pistachio."
In the Long Island case, Judge Gary Brown’s ruling was sprinkled with puns and quotes from songs about ice cream, including Van Halen’s “Ice Cream Man,” "Weird Al" Yankovic’s “I Love Rocky Road,” My Name is DC’s “Pistachio Ice Cream” and Louis Prima’s “Banana Split for My Baby.” It also included a brief history of pistachios and 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 argued in her lawsuit that Cold Stone customers deserve high-quality ingredients, given the creamery's prices. A small size starts at $7.50, according to Cold Stone's website, and patrons must pay additional fees for waffle cones, bowls and extra mix-ins.
A list of ingredients on the website shows that many of Cold Stone's flavors 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, according to Duncan's suit.
The pistachio ice cream she bought in July 2022 gets its taste from what Cold Stone lists as “pistachio flavoring,” which is made of water, ethanol, propylene glycol, natural and artificial flavors, and yellow and blue food coloring, the lawsuit and Cold Stone's website state.
“When consumers purchase pistachio ice cream, they expect pistachios, not a concoction of processed ingredients,” Duncan's suit contended.
Erica Love Botmow was surprised to learn her pistachio ice cream contained no real pistachios but said she still liked the taste.
Her complaint pointed out that many competitor brands use real pistachios in their pistachio ice cream, including Haagen-Dazs, Ben & Jerry’s and Thrifty. It also cited a recent survey of more than 400 people across the United States who had bought ice cream within the last three months. When shown a picture of ice cream labeled “pistachio” and asked what ingredients they believed the pistachio ice cream would contain, 85% of those surveyed said pistachios.
State law prohibits false advertising, which is defined as advertising, including labeling, that is “misleading in a material respect.” To win a lawsuit, someone would have to prove that an advertisement could deceive “a reasonable consumer acting reasonably in the circumstances,” said Jeff Sovern, a consumer protection law expert at the University of Maryland.
“Would the reasonable consumer say, ‘Wow, I really want some pistachio ice cream, and I see this is labeled 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.”
Sovern added that he thinks Duncan’s lawsuit has met that criteria so far, though she would need to provide more evidence at trial. He said the judge's decision in her case means that Brown determined that Duncan has at least a chance of winning in court.
“You might call it a sweet opinion,” Sovern said.
“[S]hould consumers ordering pistachio ice cream at one of defendant’s establishments expect that that product will contain actual pistachios?” wrote Brown, who moonlights as a magician. “And if the answer is no, should that leave them with a bitter aftertaste?”
On a hot and humid recent afternoon, 14-year-old Eden Hernandez left the Midtown Cold Stone with heaping scoops of cookie dough and cake batter in a waffle cone with rainbow sprinkles. He said he didn’t expect real pistachios in the shop’s ice cream.
“It just seems like manmade, created, not natural, you know what I mean?" said Hernandez. "Especially when it tastes really good."
Hernandez said he usually avoids pistachio ice cream — real pistachios included or not.
“I may be biased, but I don't like it,” he said.
