Examples:

• • The Pistachio ice cream contains no pistachios, only “pistachio flavoring” made from additives like Propylene Glycol.
  • Competitors like Häagen-Dazs, Ben & Jerry’s and even Thrifty use real pistachios in their pistachio ice cream.
  • Survey found 85% of consumers expect pistachio ice cream to contain real pistachios.
  • Plaintiff wouldn’t have purchased or would’ve paid less if she knew Pistachio flavor had no pistachios.

How to Proceed:

• • Check the ingredient list before purchasing to verify if real pistachios, mango, etc. are included.
  • Note if the flavor seems to be named/described as an ingredient vs. just the taste.
  • Compare price and ingredients to competitor brands to assess value and expectations.
  • If misled, document the purchase, keep receipts, and contact the company or consider legal action.

FAQs:

• • Does pistachio ice cream have to contain real pistachios? Not legally required, but most consumers reasonably expect it to, as alleged here.
  • Is it deceptive to name an ice cream flavor after an ingredient not in it? Possibly, if a reasonable consumer would expect that ingredient to be included, as claimed in this suit.
  • Can I sue if I felt misled by an ice cream flavor name? You’d need to show the name was deceptive, you relied on it, and suffered financial injury as a result.
  • Does ingredients labeling protect against deception claims? Not necessarily – plaintiffs argue consumers rely on flavor names, not hunting for fine print ingredients.

Examples:

• • Plaintiff claims naming a flavor “Pistachio” is a deceptive practice if it contains no real pistachios.
  • Alleges flavor labels are misleading ads since reasonable consumers expect them to match ingredients.
  • Arguing flavor names are express warranties that those ingredients are included.
  • Claiming flavors aren’t merchantable as described without the named ingredients, breaching implied warranties.
  • Seeking to recover unjust profits from premium prices for flavors lacking expected ingredients.

How to Proceed:

• • Consider if a flavor name would lead you to reasonably expect that ingredient to be included.
  • Assess whether using ingredient names for flavors without those ingredients seems misleading.
  • Note if flavors are advertised in a way that seems to promise specific ingredients.
  • Evaluate if flavors are merchantable as described if they don’t contain the featured ingredient.
  • Document any price premium for flavors that don’t contain advertised ingredients.

FAQs:

• • What makes a business practice legally “deceptive”? If it’s likely to mislead a reasonable consumer, as alleged here with the flavor names.
  • Is it false advertising to name an ice cream flavor after an ingredient not in it? Possibly, if the flavor name is a misleading statement that’s likely to deceive consumers.
  • How can a food label create an “express warranty”? By making a factual promise or statement about the product’s content, like naming flavors after ingredients.
  • When are food products not “merchantable” under the law? When they don’t conform to the promises or descriptions on their labels, like the flavor names at issue here.
  • What’s needed to prove “unjust enrichment”? Showing the business reaped a financial benefit by misleading consumers, causing them loss.

Examples:

• • Cold Stone claims no deception since ingredients are disclosed on its website, even if not in stores.
  • Argues reasonable consumers don’t always expect flavor names to guarantee that ingredient is included.
  • Asserts naming convention is common in industry, like “mint” or “chocolate” ice cream containing no mint leaves or chocolate.
  • Maintains it never expressly stated the flavors contained the ingredients, just that they tasted like them.
  • Contends flavors are properly labeled as a matter of law and comply with all applicable regulations.

How to Proceed:

• • Consider if an online ingredients list is sufficient to dispel deception from in-store flavor labels.
  • Assess whether consumers generally expect flavor names to match ingredients for products like ice cream.
  • Examine if an ingredient name used for a flavor implies that ingredient’s inclusion or just the taste.
  • Evaluate if explicit “made with” statements are required for ingredients to be expected based on flavor names.
  • Research labeling regulations for foods to see if flavor names must align with ingredients.

FAQs:

• • Can ingredients lists shield against deceptive labeling claims? Not always – courts find front labels can still mislead even if ingredients are disclosed elsewhere.
  • Do flavor names have to include the ingredient to be non-deceptive? Depends if reasonable consumers expect it – the key issue in this case.
  • Is it common for flavor names not to match ingredients? Sometimes for certain foods/flavors, which defendant argues is the case for ice cream.
  • Must foods expressly state “made with X” to be required to include it? Not necessarily, but defendant claims its flavors made no such promises.
  • Do regulations require flavor names to include those ingredients? Not definitively – regulations set certain standards but may not directly address the issues here.

Examples:

• • Cold Stone might have to rename Pistachio to “Pistachio-Flavored” if the suit succeeds.
  • Potential class could include 1000s of New Yorkers who bought accused flavors in recent years.
  • Other brands may reconsider using ingredient names for flavors that don’t contain them.
  • Food companies might highlight artificial flavoring vs. “made with real” ingredients more.
  • Case probes what a “reasonable consumer” expects from ice cream flavor names today.

How to Proceed:

• • Follow the case to see if it leads to ingredient or labeling changes in these flavors.
  • Watch for class certification decision to see how many consumers could be included.
  • Note any ingredient labeling changes by Cold Stone or competitors in response to suit.
  • Observe if more companies distinguish “flavored” vs. “made with” in product names/labels.
  • Consider what flavor names would or wouldn’t be deceptive to a reasonable consumer like you.

FAQs:

• • What’s the potential fallout for Cold Stone if the suit succeeds? Reputational damage, labeling overhaul, and financial liability to misled consumers.
  • How many people could end up included in this lawsuit? Potentially thousands if the court certifies a class of eligible Cold Stone customers in NY.
  • Might this case impact other food product labeling? Yes, a plaintiff win could inspire more scrutiny of naming vs. ingredients in the industry.
  • Will this make artificial ingredients more obvious on labels? Possibly, if companies worry about deception claims over flavoring vs. actual ingredients.
  • How will this case affect consumer rights? It tests the boundaries of consumer protection laws against misleading food labeling.

Questions:

1. To prove a food labeling practice is deceptive under NY law, it must be shown to mislead:
   a) Any consumer
   b) A reasonable consumer
   c) All consumers
   d) The FDA
2. Food flavor names can create an express warranty by:
   a) Promising certain ingredients are included
   b) Listing artificial flavoring
   c) Disclosing all ingredients online
   d) Using the word “Natural”
3. To be merchantable, food products must:
   a) Conform to label promises/descriptions
   b) Include natural ingredients
   c) Contain no artificial flavoring
   d) Cost less than competitors
4. Food makers might be “unjustly enriched” if they:
   a) Use artificial flavoring
   b) Charge more than competitors
   c) Reap profits by misleading consumers
   d) Don’t list every ingredient on the label
5. If a court certifies a class action, the case can include:
   a) All U.S. consumers
   b) Only the named plaintiffs
   c) All brand purchasers in that state
   d) Anyone who opts out

Answers:

1. b) A reasonable consumer – the standard is whether a significant portion of reasonable consumers would be misled.
2. a) Promising certain ingredients are included – this can create an express warranty about the product’s content.
3. a) Conform to label promises/descriptions – to be merchantable, products must align with how they’re presented.
4. c) Reap profits by misleading consumers – unjust enrichment occurs when businesses unlawfully gain at consumers’ expense.
5. c) All brand purchasers in that state – a certified class action represents a defined group of consumers who were similarly harmed.

Disclaimer

This article is intended for general informational purposes only and does not constitute legal advice. The details of the Cold Stone ice cream flavor lawsuit are based on publicly available information at the time of publication. Consult an attorney for advice on any specific legal matter.