Scoops of Deception? Judge Allows Lawsuit to Proceed Over Cold Stone's Pistachio Ice Cream

A New York judge has turned his eye to what he calls a “delightful dispute” about Cold Stone Creamery’s pistachio ice cream, penning a playful order that allows class action claims to proceed in the case.

“Should consumers ordering pistachio ice cream at Cold Stone Creamery expect their scoops to contain actual pistachios?,” Judge Gary R. Brown wrote in his order filed May 2 in a New York federal court. 

“And if the answer is no, should that leave them with a bitter aftertaste?” 

The dispute first hit the court when plaintiff Jenna Maria Duncan filed the proposed class action lawsuit against Kahala Franchising LLC — Cold Stone Creamery’s parent company — in December 2022. 

Duncan alleges the company sells a pistachio ice cream that does not contain pistachios. She says a reasonable consumer would expect pistachio ice cream to contain the nut, therefore the ice cream company has duped ice cream lovers by not using pistachios in its scoops.

Kahala Franchising filed a motion to dismiss the lawsuit, but Judge Brown ruled the consumers had plausibly alleged their claims, and said the proposed class action could proceed.

Pistachio fans presumed to expect the real nut, lawsuit claims

Duncan says she went to buy an ice cream at a Cold Stone Creamery on a summer day in July 2022. 

She chose to get an order of pistachio ice cream, she said, and claims that she “reasonably believed that the Pistachio ice cream she purchased…contained pistachio.” 

“As is so often the case in stories, however, heartbreak followed,”Judge Brown wrote. 

“By later reviewing defendant’s ingredients list on its website, plaintiff learned that the products ‘use a mixture of highly processed ingredients to mimic the flavor of the fruits, nuts, and other ingredients specified in the Products’ names,’ but alas, no pistachio.”

Duncan alleges that, in its place, the company had used pistachio flavoring. “When consumers purchase pistachio ice cream, they expect pistachios, not a concoction of processed ingredients,” her lawsuit states. She says she and other consumers either would not have bought the product or would have paid significantly less for it had they known. 

Survey says: Consumers crave real pistachios

To back up her claims, Duncan points to Häagen-Dazs Pistachio Ice Cream and Ben and Jerry’s Pistachio Ice Cream, both of which include actual pistachios, as does Thrifty brand ice cream, she says. 

She also conducted a consumer survey that obtained the opinion of more than 400 U.S. consumers, each of whom had purchased ice cream within the preceding three months.

Duncan said she found that about 85% of the respondents believed that pistachio would be included in a pistachio ice cream. Duncan also said Cold Stone Creamery’s Mango, Coconut, Mint, Orange and Butter Pecan Ice Cream and Orange Sorbet don’t contain the natural ingredients, only flavoring. 

Judge Brown allowed the pistachio ice cream false advertising claims to proceed, but said the arguments about the other flavors were not as well made, and dismissed those claims.

Overall, he allowed Duncan’s violation of General Business Law and express warranty claims to proceed, but dismissed her implied warranty and unjust enrichment claims. Duncan is looking to represent a New York class of consumers who bought the pistachio ice cream. 

The plaintiff and the proposed class are represented by Robert Abiri and Joshua Nassir or Treehouse Law LLP. 

The Cold Stone pistachio ice cream class action lawsuit is Duncan et al v. Kahala Franchising LLC, Case No. 2:22-cv-07841-GRB-AYS in the U.S. District Court for the Eastern District of New York.