Flavor or Fraud? Cold Stone Disputes Pistachio Ice Cream Ingredients

Flavor or Fraud?

A class action lawsuit claims Cold Stone Creamery deceived consumers by selling a "Pistachio" ice cream flavor without any real pistachios. The legal battle will determine if naming flavors after ingredients they don't contain violates consumer protection laws.

June 8, 2024

Cold Stone Creamery (via it’s parent company Kahala Franchising, LLC) is facing a class action lawsuit. A New York woman is alleging the ice cream chain misled consumers by marketing flavors that don’t actually contain the ingredients highlighted in their names.

The case, Duncan v. Kahala Franchising, raises complex questions about reasonable consumer expectations, ingredient labeling, and flavor descriptions. This guide breaks down the key facts, legal issues, and arguments to help you understand this sweet dispute.

1. Understand the Plaintiff’s Allegations

    • Plaintiff Jenna Marie Duncan: Purchased Cold Stone’s Pistachio Ice Cream in July 2022 in New York, believing it would contain real pistachios.
    • Accused Products: Cold Stone’s Pistachio, Coconut, Mango, Orange, Mint, and Butter Pecan Ice Cream, plus Orange Sorbet.
    • Key Claim: The flavors are named after ingredients they don’t actually contain, misleading reasonable consumers.
    • Alleged Deception: Labeling the Pistachio flavor as “Pistachio” without including real pistachios, etc.
    • Economic Injury: Plaintiff claims she paid a premium price but didn’t receive the expected ingredients.


    • 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.


    • 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.

2. Analyze the Core Legal Claims

    • NY General Business Law §349: Prohibits deceptive acts and practices – plaintiff claims flavor names misled her and class.
    • NY General Business Law §350: Prohibits false advertising – plaintiff argues flavor labeling constitutes misleading marketing.
    • Breach of Express Warranty: Plaintiff claims naming flavors after ingredients expressly warrants they contain those ingredients.
    • Breach of Implied Warranty: Plaintiff alleges flavors aren’t merchantable as named/described, breaching implied warranties.
    • Unjust Enrichment: Plaintiff argues Cold Stone unjustly profited from premium prices without delivering expected ingredients.


    • 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.


    • 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.

3. Examine Cold Stone’s Key Defenses

    • Ingredient List Disclosure: Cold Stone argues no deception if ingredients are accurately listed on its website.
    • No Reasonable Expectations: Disputes that reasonable consumers would expect flavors to necessarily contain ingredient names.
    • Flavor vs. Ingredient Naming: Claims using food names for flavors doesn’t guarantee that ingredient is included.
    • No Express Promises: Contends it never expressly stated flavors were “made with” specific ingredients.
    • Compliance with Regulations: Maintains flavors are properly labeled under applicable food and marketing laws/standards.


    • 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.


    • 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.

4. Explore the Potential Impact & Implications

    • Case Outcome: If successful, Cold Stone may have to change flavor names, labeling and/or ingredients.
    • Class Certification: If certified, the case could include all NY consumers who purchased the accused flavors.
    • Industry Ripple Effects: Other ice cream/food companies may reevaluate naming and labeling practices.
    • Ingredient Transparency: May spur more prominent disclosure of artificial vs. natural ingredients in foods.
    • Reasonable Consumer Standard: The case tests boundaries of what’s deceptive vs. acceptable to reasonable consumers.


    • 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.


    • 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.


Close-up of pistachio ice cream scoop with surprised expression

Food for Thought: Lawsuits like this raise questions about how literally we should take food flavor names. Where should the line be drawn between poetic license and deceiving consumers?

The Cold Stone ice cream flavor lawsuit sheds light on a complex issue: when do flavor names cross the line into false advertising? The case alleges the chain’s practice of naming flavors after ingredients they don’t contain, like “Pistachio” without pistachios, dupes consumers.

Plaintiff Jenna Marie Duncan argues this reasonable leads buyers to expect those ingredients are included, while Cold Stone contends no such promises are made – flavors can taste like foods not in them, and ingredients are disclosed online.

At stake are not just ice cream labels, but broader questions of what’s deceptive vs. acceptable to reasonable consumers, and how clearly companies must distinguish flavors from ingredients. The outcome could impact labeling across the food industry.

Scoop Up More Legal News & Insights

For the latest updates on major lawsuits, consumer rights, and product labeling issues, check out our other in-depth legal news articles and resources. We’ll keep you in the loop on significant cases that could impact your consumer choices and protections.

Legal Help for all of you legal needs.

Have questions about a potential false advertising or consumer protection case? Reach out to discuss your concerns with an attorney.

Quiz: Food False Advertising Factors


  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


  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.


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.


Poppi’s Prebiotic Predicament: Class Action Alleges Misleading Gut Health Claims

Class Action Lawsuits: Strength in Numbers Against Corporate Misconduct