Originally published at: https://boingboing.net/2024/06/10/no-pistachios-in-pistachio-ice-cream-cold-stone-creamery-sued.html
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The ruling from the judge on Coldstone’s motion to dismiss is worth reading. This judge is fun to read, which definitely can’t be said about most judges.
https://caselaw.findlaw.com/court/us-dis-crt-ed-new-yor/116134738.html
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(The irony is that some engines can run on ethanol and many antifreezes contain propylene glycol, but I’m pretty sure that putting real pistachio ice cream into an engine will ruin it. It was pretty weird when the Pixar folks went and decided that cars eat human food now.)
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I’d say this lawsuit has merit. If i were to look at other brands i often see ice creams that will clearly state on the label when something is artificially flavored, if Cold Stone didn’t do this i would consider it deceptive.
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“…the company will label their “pistachio” flavor in quotes with a wink and a nudge.”
I wasn’t wearing my readers so I initially misread “nudge” as “fudge”. Aptly amusing 
I assume their fudge brownie ice cream has no fudge.
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I’m going to have some vanilla ice cream later, and there better not be any maudit Propylene Glycol! (Excuse my french.)
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Nonsense. There’s no way that McQueen’s brains were so large in proportion to his body.
A Smart car, on the other hand…
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Interestingly, if you read the judge’s opinion, that argument, by itself, was insufficient. So the procedural history of this case is interesting. After the initial complaint was made, Coldstone made a motion to dismiss for failure to state a claim upon which relief can be granted. These motions are pretty standard in lawsuits. Anyway, the judge granted the motion, but dismissed the case without prejudice, meaning the plaintiff could amend their complaint and try again, which they did. The original complaint included evidence that other ice cream companies marketing pistachio ice cream had real pistachio in their ice cream. That wasn’t enough to satisfy the law about deceptive advertising. The plaintiff had to show that a reasonable person would be fooled by this into thinking the ice cream had pistachio in it. So the plaintiff commissioned a survey of consumers which showed that 85% of consumers assumed something called pistachio ice cream would have real pistachio in it. They amended their complaint, added this study, and that was enough to satisfy the judge and allow the case to go forward.
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If I bought something that was labeled “pistachio flavour”, of course I would expect real pistachios to be used. They don’t have to be Sicilian pink pistachios (expensive, and prone to theft from the mafia, so guarded by customs from ripening to secure point of shipment), or Iranian ones (cheap and delicious, but prone to trade embargos by many countries), as long as it’s real pistachios.
I see a lot of examples of misleading marketing out there, and this is just one of many examples. The customer should at least expect to get what it says on the tin.
EDIT: I forgot to mention. I also expect pistachio ice cream to be brown, with only a slight hue of green, like real pistachios, and not the artificial green that most people associate with ice cream.
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After tasting Cold Stone years ago, I’d argue that there’s no dairy in the product, so its not even ice cream. Milk and cream have a wonderfully cold mouth feel. Cold Stone does not. To note: made chocolate cinnamon ice cream yesterday because the Big Island is not big on ice cream.
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Interesting, I’m the exact opposite. I see something labelled “flavor” I assume there’s nothing real about it.
“pistachio flavored ice cream” - no pistachios
“chocolate flavored ice cream” - no chocolate
“pistachio ice cream” - pistachios
“chocolate ice cream” - chocolate.
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The amended complaint deprecates defendant’s Mango, Coconut, Mint, Orange and Butter Pecan Ice Cream, as well as its Orange Sorbet, claiming that, like defendant’s Pistachio Ice Cream, these “[p]roducts are merely flavored after their named ingredients.” DE 21 ¶¶ 11, 16-17. “This is not what consumers expect,” plaintiff insists. Id. ¶ 21. While plaintiff decries the absence of mango, coconut, mint and orange in these additional items, with respect to Butter Pecan Ice Cream, pecans are not the problem; the deficit is limited to an absence of butter
Damn, no mango in the Mango, coconut in the Coconut, mint in the Mint, or orange in the Orange.
Next up there’s going to be no people in the Soylent Green.
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The thing is, normally, when making pistachio ice cream or gelato, you end up straining out the pistachio solids from the custard, using them only for flavoring. (You might then add in pieces when freezing, but it wouldn’t impact flavor much.) That kind of use would, I’m assuming, end up being reflected in an ingredient list as “natural flavoring,” so in theory, having that, instead of “pistachios” would be normal for “pistachio ice cream.” The real question is how was the flavoring imparted and how much was artificial, and since the “pistachio flavoring” is a whole bunch of artificial ingredients (and their ice creams in general are not exactly, uh, artisanal), it clearly was some kind of highly processed extract, probably with a lot of artificial flavors - and no pistachios came near the ice cream at any stage in its creation.
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As far as I can tell, there aren’t any people in the green variety of Soylent.
ETA: It doesn’t seem to have any mint, either, though. Interesting.
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Came here to make this point. When I was a brewer, I learned that in some markets, even if you used actual fruits, spices, etc., in your beer, because solids were filtered as part of the process, you had to report it as “natural flavoring” by law. And plenty of extracts are made with natural ingredients. Personally, I find the “do people expect X ingredient in a food labelled ‘X-flavored’?” argument to be kind of weak, but then again, as long as what I’m eating tastes like the thing they say it’s supposed to, I don’t really care where the flavor actually comes from. And yes, that would include the (rarely used these days) vanilla flavor that comes from beavers’ backsides.
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The thing about French vanilla as opposed to regular old vanilla vanilla is that French vanilla ice cream is made with a custard based on egg yolks, so French vanilla as a flavouring will be richer and yellower (even if there are no actual yolks in it). It doesn’t mean it’s imported from France or anything, just as a Pekingese dog isn’t imported from China.
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Well, German chocolate cake usually doesn’t contain Germans, so . . .
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Same here.
Orange flavored drink ≠ orange juice.
That said, CSC just calls their product “pistachio ice cream:”
Which means they don’t even have that flimsy excuse.
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The judge had fun writing this one.
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”9—replete with references to Guar Gum, Diglycerides, Polysorbate 80, and Propylene Glycol—to fully protect their legal interests. Before advancing this argument, counsel may be well advised to research the term “buzzkill.”
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