A federal court has denied a motion by Kahala Franchising to dismiss claims that it misleads consumers into believing Cold Stone Creamery’s pistachio-flavored ice cream contains pistachios. Duncan v. Kahala Franchising, L.L.C., No. 22-7841 (E.D.N.Y., issued May 2, 2024). According to the opinion, the plaintiff visited a Cold Stone Creamery and selected pistachio ice cream because she believed the product contained pistachio. She later learned after visiting the company’s website 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.” The plaintiff’s amended complaint similarly targets other flavors of ice cream, including mango, coconut, mint, orange, butter pecan and orange sorbet, claiming they are merely flavored after their named ingredients, which is allegedly not what consumers expect.

The court analyzed several elements to assess sufficiency of the plaintiff’s allegations, including express representations of ingredients used, such as “made with”; the availability of an ingredients list; whether the flavor designation can be used as both a noun and adjective; and availability and significance of consumer survey evidence. On the second element, the court was not swayed by the defendant’s argument that the absence of “real” ingredients in its online ingredients list was fatal to the plaintiff’s claims. Courts have rejected defense arguments based on ingredient lists that are difficult for consumers to access, the court noted, and the defendant’s notion of requiring consumers to check an online ingredients list “also seems antithetical to the experience offered by defendant to the public, as described on its website” touting what the company calls the “10-Minute Vacation,” positioning the store as a getaway from the outside world. 

“So the thought is that in the midst of a trademarked ‘10-Minute Vacation,’ customers have a duty to locate, read and analyze its electronic ‘Ingredient Statement’—replete with references to Guar Gum, Diglycerides, Polysorbate 80, and Propylene Glycol—to fully protect their legal interests,” the court said. “Before advancing this argument, counsel may be well advised to research the term ‘buzzkill.’”

The court denied the company’s motion to dismiss the plaintiff’s General Business Law claims and express warranty claim regarding the pistachio ice cream but granted dismissal to claims regarding other flavors as well as implied warranty and unjust enrichment claims.

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