No pistachios in pistachio ice cream? Cold Stone Creamery sued

No pistachios in an ice cream advertised as being pistachio ice cream?

Stone-cold Dreamery.

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The mint is very likely in the “Natural Flavors”. Natural flavors in FDA land basically means something that has been extracted or distilled from a natural source that doesn’t provide any meaningful nutrition. It is very likely they are using a mix of peppermint, spearmint and water mint essential oils that add no meaningful amount of Calories.

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Going by that ingredient list, no cream either.

Also not to be a pedant, but I would expect “bubblegum flavored” ice cream to contain the same artificial flavors as typical bubblegum (since without that, it has no flavor); and “French vanilla” refers to the method of making ice cream (with egg custard), not where the vanilla is from.

That certainly seems like an innocent way to end up without a nominal and actual ingredient on the ingredients list; but (especially since the company did make some effort in the case, it wasn’t just one of those ‘yeah, not going to send our lawyer to spend a day in small claims court over that’ default judgements) it seems odd that Cold Stone Creamery wouldn’t just explain that if it were the case.

As @danimagoo notes, the judge was initially reasonably skeptical and the plaintiff had to come back with survey results supporting the claim that it was actually misleading. That seems like a situation where just explaining “we use pistachios to add flavor to the ice cream during processing but strain out the solids so they end up just listed as ‘natural flavor’; some recipes retain or reintroduce the solids so that there are obvious nut chunks in the final product; but it’s quite common for flavoring ingredients to not show up in visible chunks in the final product” would have had a pretty solid chance of making their case; if true.

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Well that’s an argument that they would have to bring up at the trial. This was just a ruling on a motion for dismissal. The judge doesn’t consider factual arguments like that on a motion to dismiss. When the defense files a motion to dismiss, the judge says, “Ok, let’s assume every factual statement made by the plaintiff is true. In that case, are the legal requirements for the harm they’re claiming met and does the law allow me to provide relief for that harm?” The judge doesn’t consider any defenses at this point. It’s designed to prevent frivolous lawsuits from even reaching the discovery phase. Because the bar to file a lawsuit in our system is so low, motions to dismiss are really important. They keep the courts from getting clogged up even more than they are now. But it’s a very low bar to clear, since the judge has to assume all of the facts in the plaintiff’s claim are true.


In this case the fact that there’s an ingredient list for the “pistachio flavor” (that’s full of weird stuff, no less) indicates no actual pistachios were directly involved in the making of the ice cream. (They’re clearly using some sort of industrial “pistachio flavored syrup” in the process instead.) Which muddies the waters a bit. It’s like vanilla ice cream - you don’t expect bits of vanilla pod in your ice cream, but if it includes some artificial vanilla flavor, it’s somewhat different.

When I was a kid, pistachio ice cream had chopped pistachio nuts in it. And bubblegum ice cream had actual bits of bubblegum in it. You’d eat the ice cream and gather the bits of gum in your mouth as you went along. Once the ice cream was gone you still ended up with some chewing gum.

I wouldn’t recommend mixing those two flavors together, though.

Potentially bubblegum! Some people can’t blow bubbles. I’ll sue! :upside_down_face:

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I like mint ice cream (the kind with bits of chocolate in) and cinnamon and I’ve gotten weird looks for that combo, so who knows maybe you’re on to something.

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The problem wasn’t the flavor combination, which was perfectly acceptable to a 9 year old kid with two scoops of ice cream. The problem was I’d chewed the bits of nuts and swallowed them only to discover the small reserve of bubblegum was also gone!

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