Consumer Law

Ice cream lover ‘stated her case for pistachio pretention,’ federal judge says in refusing to toss suit

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Cup of Cold Stone Creamery ice cream

(Photo by JJava Designs /

A federal judge has allowed a disappointed pistachio ice cream consumer to proceed with her deceptive-practices case against the corporation that owns Cold Stone Creamery.

The plaintiff, Jenna Marie Duncan, “stated her case for pistachio pretention” but did not offer enough support for a “broader flavor fakery” regarding other ice cream flavors, said U.S. District Judge Gary R. Brown of the Eastern District of New York. Courthouse News Service noted the May 2 opinion.

Among the losing claims was an allegation that butter pecan ice cream included pecans but not butter.

Brown included several song lyrics referencing ice cream in his opinion, including “I Love Rocky Road” by Weird Al Yankovic and “Pistachio Ice Cream” by My Name is DC.

Duncan visited a Cold Stone Creamery in Levittown, New York, in July 2022. Confronted with a “smorgasbord of confectionary choices,” she summoned “significant restraint” and ordered just one flavor—pistachio, Brown said.

“As is so often the case in stories, however, heartbreak followed,” Brown wrote. Duncan said she reviewed the ingredient list on the defendant’s website and learned that Cold Stone Creamery used “highly processed ingredients” to mimic the flavors in pistachio ice cream. But there were no actual pistachios on the list.

Duncan had supported her claim with a survey of more than 400 U.S. consumers who were asked to choose among a list of 10 ingredients they expected to be in pistachio ice cream. About 85% believed pistachio would be included.

The lawyer for the defendant had suggested Duncan’s claim should fail because Cold Stone Creamery posted its ingredient list online. But Brown said courts have rejected defense arguments based on ingredients that are difficult for a consumer to access.

The notion of requiring consumers to check online for ingredients “also seems antithetical to the experience offered by defendant to the public, as described on another section of its website,” Brown said.

The website uses a trademarked term, the “10-Minute Vacation,” to describe the getaway consumers experience within Cold Stone Creamery stores. Inside, they can find “enthusiastic, singing crew members” and “the shared laughter of a family enjoying a treat together,” the company claims.

Brown derides the thought that consumers “in the midst of a trademarked ‘10-Minute Vacation’ ” would “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.”

“Before advancing this argument,” Brown writes, “counsel may be well advised to research the term ‘buzzkill.’ “

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