Awhile back (I think it was January), I noted that we already had this year’s first entry in another of what might be called “stupid food lawsuits.” “Stupid,” of course, refers not to the food itself but the people who bring such lawsuits — and maybe, the lawyers who help them by preparing the lawsuits, too.
So we had the case against Subway sandwiches because a few of their “footlong” sandwiches clocked in at 11¾ inches. Or the fellow who sued an amusement park because he wasn’t allowed more than a few free refills of his gigantic soda cup every hour. In my January entry, I described the woman who was shocked — SHOCKED! — to learn that Reese’s Peanut Butter Pumpkins (made by the Hershey Company) didn’t have cutesy little faces on them, despite what was shown on the packaging.
Of course, the granddaddy (grandmommy?) of such litigation may still be case of the woman who was equally horrified to learn that Cap’n Crunch Crunchberry cereal did not actually have any “crunchberries” in it . . . probably because there is no such fruit as a “crunchberry.”
Our latest such entry, which unlike some of the ones above may not be quite so silly, was filed by a woman named Jenna Duncan against the parent company of Cold Stone Creamery. It seems that in the summer of 2022, she went into a Cold Stone in Levittown, New York and, as federal District Judge Gary R. Brown explained, “Summoning significant restraint,” she “limited her order solely to the bin marked ‘Pistachio.’”
But Judge Brown went on, “As is so often the case in stories, however, heartbreak followed: by later reviewing [Cold Stone’s] ingredients list on its website, [she] learned that the products ‘use a mixture of highly processed ingredients to mimic the flavor of the fruits, nuts, and other ingredients specified in the [ice cream’s] names,’ but alas, no pistachio.” Quoting from her lawsuit, he added, “[w]hen consumers purchase pistachio ice cream, they expect pistachios, not a concoction of processed ingredients.”
(The lawsuit itself, incidentally, was another one in which the lawyers decided to break up the monotonous black-and-white text with colorful pictures of the freezer case at Cold Stone. If nothing else, the array of hues suggests that anyone eating ice cream may be ingesting an unhealthy amount of food coloring.)
As the excerpts above suggest, however, Judge Brown had perhaps a little too much fun with the case, starting his opinion not with the facts or the law, but with, “ ‘They say all my flavors are guaranteed to satisfy.’ — Van Halen, ‘Ice Cream Man.” And he went on in this vein — his next paragraph volunteers, “Archeological evidence suggests that humans have been snacking on pistachios since the Bronze Age. And though viscerally associated with modern refrigeration techniques, ice cream — as we understand it — was likely crafted by Europeans in the 1600s and also has ancient forebears enjoyed by King Solomon, Alexander the Great and Emperor Nero.” Finally, he added, “This delightful dispute lies at the crossroad between these celebrated treats.”
It’s always helpful when a judge decides to, um . . . flavor an opinion with some extra research like that.
Anyway, in line with his Van Halen introduction, throughout the opinion Judge Brown adds a different kind of flavoring to his prose, inserting seemingly random quotations from other popular songs, including My Name is DC’s “Pistachio Ice Cream” (which gives a fairly accurate description of the confectionary at issue), Louis Prima’s “Banana Split for My Baby,” and even Weird Al Yankovic’s, “I Love Rocky Road,” a parody of “I Love Rock and Roll.”
Eventually, the judge settles into a more mundane analysis of the facts and legal issues, although remaining just a bit puckish throughout. At one point, for example, he describes these kinds of lawsuits about food nomenclature and claims of deceptive advertising by quoting from a different judge’s decision, saying that that judge had been “confronted with a pitched battle regarding the true content of Graham crackers.”
After discussing the issues in the case, and the surprisingly large number of court decisions involving such questions, Judge Brown eventually took big scoops out of Ms. Duncan’s lawsuit. But he did allow her lawsuit to proceed under a New York state law regulating representations about the contents of products, especially food, and under an express warranty legal theory.
So the next time you buy a carton of eggs labeled “sugar free” or a fresh cucumber labeled “No added fats!,” relax.
You can be sure that’s what you’re really getting.
Frank Zotter, Jr. is a Ukiah attorney.
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