Neil Peretz’s Post

You know summer is here when a federal court opinion is full of song lyrics related to ice cream and color photos of various flavors. Worth a read. You can tell the judge found a lot of (Good) Humor in the topic. The crux of the case is that plaintiff felt mislead when purchasing Pistachio ice cream from Cold Stone Creamery and later discovered it had no pistachio in it. The court considered whetehr it was fair for the consumer to expect Pistachio Ice Cream to have actual pistachio in it. Some arguments: 1. Cold Stone pointed out that their ingredient list was available online. The court found that unconvincing because the ice cream is being sold in-person. 2. Lots of competitors offering pistachio ice cream actually have pistachio on their ingredient list, thus consumers might expect the same at Cold Stone. The court found a bit of merit in the argument, but weighted it less. In passing, the plaintiff took a dig at Thrifty's Ice Cream and called it "a less premium brand than Cold Stone Creamery." I disagree. Thrifty has good ice cream. Cold Stone has poor quality ice cream. 3. A survey of 400 consumers revealed that 85% expected pistachio to be an ingredient in pistachio ice cream. The court found this to be sufficiently compelling evidence to prevent dismissal of the case. The result: the case will move forward. Some other important learnings. 1. Just because the food does not contain the ingredients you expected, your implied claims of merchantability will fail (in NY) if the food is still edible: "“Where the sale of a food or beverage is concerned, courts have ruled that the product need only be fit for human consumption to be of merchantable quality.”" 2. There is an entire line of cases in NY called "The SDNY Vanilla Cases," litigating about "disaffected purchasers of vanilla products that were derived from substances other than vanilla bean." 2. In the dictionary, "pistachio" is also an adjective - however it refer to the "green colour of the kernel of the pistachio nut," rather than the nut itself.

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