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The lawsuit, filed by Nassau County resident Jenna Marie Duncan, may soon move to court, according to documents.
Duncan, who is from Farmingdale, claimed that in July 2022, she visited a Levittown Cold Stone for a frozen treat.
She ordered the pistachio ice cream under the guise that it contained pistachios.
However, Duncan later looked at ingredient lists on the Cold Stone website, which revealed that the pistachio ice cream did not list the nut on its ingredient list; rather, the ice cream was made with pistachio flavoring (made with ingredients such as water, ethanol, propylene glycol, and natural and artificial flavor).
In addition, she claimed that Cold Stone falsely advertised other flavors as well. For example, the suit explained that the mango ice cream does not contain mango, the mint ice cream contains no mint, and the butter pecan contains no butter – all instead include the flavor of each key ingredient.
“When consumers purchase pistachio ice cream, they expect pistachios, not a concoction of processed ingredients,” the lawsuit stated, alleging that customers are overpaying for "premium" products under false pretenses.
Other brands, such as Ben and Jerry’s and Haagen-Dazs, do have pistachios listed in the ingredient list, the suit adds, as does the “less premium” Thrifty brand.
Kahala Franchising, L.L.C., which owns Cold Stone, attempted to have the lawsuit dismissed.
In a motion to dismiss the case, it argued that a reasonable customer would not be deceived by the flavor names, as they can “view the tubs of ice cream” behind the counter, “which clearly do not contain chunks of ‘real’ ingredients.”
Nonetheless, US District Judge Gary R Brown approved the pistachio problem, allowing the case to advance so the courts may decide whether or not it's nuts to expect to see pistachios in pistachio ice cream.
“And if the answer is no,” Brown wrote in the decision, “should that leave them with a bitter aftertaste?”
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