A while ago (January, I think) I pointed out that already this year we have seen the first of what I might call “stupid food lawsuits,” where “stupid” of course refers not to the foods themselves but to the people who bring such lawsuits and, presumably, the lawyers who help them prepare them.
Subway was sued because some of their “footlong” sandwiches were as much as 11¾ inches. Or a guy sued an amusement park because their giant soda cups only allowed a few free refills per hour. In a January entry, I wrote about a woman who was shocked (shocked!) to discover that Reese's Peanut Butter Pumpkins (made by Hershey) didn't have cute faces on them, even though the packaging did.
Of course, the originator (or originator?) of such a lawsuit may have been the case of a woman who was similarly horrified to discover that Captain Crunch Crunchberry cereal contained no actual “crunchberries” — presumably because there is no such fruit.
The latest lawsuit, which may not be as ridiculous as the ones mentioned above, was filed by a woman named Jenna Duncan against the parent company of Cold Stone Creamery. In the summer of 2022, she went to a Cold Stone in Levittown, New York, and, as U.S. District Judge Gary R. Brown explained, “summoned considerable restraint” and “ordered only the box that said 'pistachio.'”
But Judge Brown continued: “As is so often the case in stories, a heartbreaking ending followed. [Cold Stone’s] The ingredients list on the website, [she] These products were found to use a mixture of highly processed ingredients to mimic the flavors of fruits, nuts and other ingredients. [ice cream’s] “It was called 'Pistachio' but unfortunately there were no pistachios,” she quoted the lawsuit, adding: “[w]When consumers purchase pistachio ice cream, they expect whole pistachios, not a mixture of processed ingredients.”
(Incidentally, this lawsuit itself was one of those in which lawyers decided to punctuate drab black-and-white text with colorful photos of Cold Stone's freezer cases. At the very least, the range of colors suggests that anyone who eats ice cream may be ingesting unhealthy amounts of food coloring.)
But as the above excerpt suggests, Justice Brown perhaps played a little too hard on the case, beginning his opinion not with facts or law, but with the statement, “'They say all my flavors are satisfying.'” — Van Halen, “Ice Cream Man.” And he continues in this vein, adding in the next paragraph, “Archeological evidence shows that humans have been eating pistachios since the Bronze Age. And ice cream as we understand it, though instinctively associated with modern refrigeration technology, may have been created by Europeans in the 1600s, with ancient ancestors enjoyed by King Solomon, Alexander the Great, and Emperor Nero.” Finally, he adds, “This delightful debate lies at the crossroads of these famous treats.”
It is always helpful when a judge decides to season their opinion with additional research like that.
In any case, as with his Van Halen introduction, Justice Brown adds another kind of flavor to his writing throughout his opinion, inserting seemingly random quotations from other popular songs, such as My Name is DC's “Pistachio Ice Cream” (a pretty accurate description of the confectionery in question), 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.”
In the end, the justices settled on a more prosaic analysis of the facts and legal issues, but remained a bit mischievous throughout. At one point, for example, they cited another justice's ruling in a similar case involving food names and false advertising allegations, saying that the justices “were faced with a fierce battle over what's really in graham crackers.”
After discussing the issues in the case and the surprising number of rulings surrounding those questions, Judge Brown ultimately gave Duncan a major leg up in the case, but he allowed her case to proceed based on New York state law regulating the labeling of products, particularly food products, and the legal theory of express warranties.
So the next time you buy a carton of eggs labeled “no added sugar” or fresh cucumbers labeled “no added fat,” take heart.
There is no doubt that this is what you will actually get.
Frank Zotter Jr. is an attorney in Ukiah.
