One of Cold Stone Creamery’s ice cream flavors is at the center of a legal dispute

(NEXSTAR) – Cold Stone Creamery’s pistachio-flavored ice cream is at the center of a proposed class-action lawsuit which alleges that the flavor’s description is misleading — as it contains no actual pistachio.

Cold Stone’s parent company, Kahala, had previously filed a motion to dismiss, though the request was denied by a judge in the Eastern District of New York last week.

“[This case] raises a deceptively complex question about the reasonable expectations of plaintiff and like-minded ice cream aficionados,” wrote Judge Gary R. Brown in his May 2 decision.

The plaintiff, according to court documents, had initially purchased Cold Stone Creamery’s pistachio ice cream from a location in Levittown, New York, in July 2022, at which point she “reasonably believed that the Pistachio ice cream she purchased from defendant contained pistachio.” She filed a legal complaint at the end of the year, after learning the product was flavored with a “pistachio flavoring” which contained no actual pistachio.

“Had she known that the Product did not contain pistachio, she would not have purchased it, or would have paid significantly less for it,” according to a complaint submitted on the plaintiff’s behalf, according to court documents cited in last week’s decision.

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Attorneys for the defense had filed a motion to dismiss, urging the court to consider several other dismissed cases centered around “vanilla”-flavored products which were made without the use of vanilla bean.

Judge Brown, however, decided that the plaintiff had more of a reasonable expectation of receiving actual pistachio in her pistachio ice cream, citing several “elements” that weighed in her favor: the absence of any in-store signage indicating a lack of pistachios; the definition of pistachio as a nut and a color, but not a flavor; and the fact that other popular ice cream brands include pistachios in their pistachio ice cream.

In an amended complaint, the plaintiff also provided a survey of over 400 consumers, 85% of whom assumed that pistachio would be a likely ingredient in “pistachio” ice cream.

“[…] plaintiff has alleged claims of deceptive practices under the [New York General Business Law] which are plausible on their face,” the judge decided.

A representative for Kahala did not return a request for comment on Friday, nor did the company respond to a query concerning the composition of its pistachio ice cream. In an allergen guide found on Cold Stone’s website, the only major allergen listed in its pistachio ice cream is milk, but not any tree nuts (a group which includes pistachios). The ingredients also indicate the product is made with “pistachio flavoring” consisting of water, ethanol, propylene glycol, natural and artificial flavor, Yellow 5 and Blue 1.

“Natural flavor,” meanwhile, does not necessarily indicate that a product is made with the flavor it is most associated with, but rather a flavoring agent that was derived naturally. (Vanilla flavoring, for instance, can be naturally derived from clove or straw, as discussed in the chemistry journal Molecules.)

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The judge’s decision did not indicate when the case could go to trial. His decision also did not expressly state how much the plaintiff may be seeking in monetary damages, rather than unspecified “relief” for a “putative class of ice cream eaters and their sorbet allies,” he wrote.

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