- Cold Stone Creamery is facing legal action over 'pistachio' ice cream that contains no pistachios.
- The plaintiff argued that the name misled her into believing the ice cream contained real nuts.
- Last week, a judge ruled that the case can move forward. It's unclear when it will go to trial.
The parent company of Cold Stone Creamery is facing legal action after a New York woman ordered "pistachio" ice cream only to discover that it didn't contain pistachios.
In a ruling last week, Gary R. Brown, a federal judge at the Eastern District Court of New York in Brooklyn, allowed the case against Kahala Brands to move forward.
It all started when the plaintiff visited a Cold Stone Creamery in Levittown, Long Island, in July 2022, ordering what she believed was a pistachio ice cream.
In court filings, her legal team argued that she "reasonably believed" it contained the nut due to its name, but Brown wrote that "heartbreak followed."
The ruling says that upon examining the website's ingredient list, the plaintiff learned that the ice cream was made using a "mixture of highly processed ingredients" but no actual pistachios.
According to the ruling, it was instead made with pistachio flavoring, consisting of "Water, Ethanol, Propylene Glycol, Natural & Artificial Flavor, Yellow 5, [and] Blue 1."
The plaintiff's lawyers argued that had she been aware of this, she wouldn't have bought the ice cream.
In the ruling, the plaintiff compared Cold Stone Creamy's pistachio ice cream to offerings from Häagen-Dazs and Ben and Jerry's, both of which contained real pistachios.
She also compiled a survey of more than 400 US consumers, in which about 85% of participants believed a product labeled as pistachio ice cream would indeed contain pistachios, according to the ruling.
Despite Kahala Brands' efforts to have the case dismissed, including arguing that an online ingredient list was sufficient, the judge remained unconvinced.
However, he agreed that the case should focus solely on pistachio ice cream, and not other products with potentially deceptive names, and he dismissed implied warranty and unjust enrichment claims.
Kahala Brands did not immediately respond to a request for comment.
It is unclear when the case will go to trial.
The lawsuit represents a broader trend of customers holding fast-food chains accountable for misleading product names or failing to meet expectations set by advertisements.
Business Insider previously reported on the rise in false-advertising class-action lawsuits against big food chains, including McDonald's and Taco Bell.
But Oren Bitan, an expert in these types of lawsuits, told BI that these types of claims face a high bar for success.
Watch: How OddFellows makes 41,000 gallons of ice cream every year in New York
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