Duncan v. Kahala Franchising, L.L.C.
2:22-cv-07841
E.D.N.YMay 2, 2024Background
- Plaintiff Jenna Marie Duncan purchased "Pistachio" ice cream from Cold Stone Creamery, expecting it to contain actual pistachios based on its name.
- After reviewing the ingredients, Duncan learned the ice cream contained no real pistachios, but rather used pistachio flavoring with artificial ingredients.
- Duncan brought a putative class action alleging violations of New York General Business Law (GBL) §§ 349, 350, breach of express and implied warranties, and unjust enrichment, arguing that consumers are misled by the product naming.
- Plaintiff supported her claims with consumer survey evidence (85% expected real pistachios in the ice cream) and comparisons to competitor products that use actual pistachios.
- Defendant moved to dismiss all claims, referencing "Vanilla" labeling cases which found flavor-based product names not misleading absent explicit ingredient claims.
- The court evaluated whether the naming and context of "Pistachio" ice cream could plausibly mislead reasonable consumers under GBL and warranty standards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether "Pistachio" ice cream is misleading to reasonable consumers under GBL §§ 349, 350 | Consumers expect real pistachios in "Pistachio" ice cream; supported by survey and competitor practices | "Pistachio" signals flavor, not ingredient; online ingredient list discloses absence of pistachios | Not dismissed; plausible claim as to the pistachio product |
| Claims against other flavored products (Mango, Coconut, Mint, Orange, Butter Pecan) | Names of other flavors also mislead consumers about ingredient content | No survey/competitor data supports deception for these products; plaintiff did not purchase them | Dismissed; insufficient support beyond "Pistachio" |
| Express warranty regarding ingredient content | Naming as "Pistachio" explicitly warrants the presence of pistachios | General naming is not an express warranty; no factual promise | Not dismissed for "Pistachio" ice cream; dismissed for others |
| Implied warranty and unjust enrichment | Product not fit as warranted or representation unjustly enriched defendant | Product is fit for ordinary use (edible ice cream); unjust enrichment duplicative of other claims | Both claims dismissed |
Key Cases Cited
- Mantikas v. Kellogg Co., 910 F.3d 633 (2d Cir. 2018) (front packaging representations may mislead even with clarifying ingredients list elsewhere)
- Maurizio v. Goldsmith, 230 F.3d 518 (2d Cir. 2000) (GBL § 349 standard for deceptive business practices)
- Goshen v. Mut. Life Ins. Co. of N.Y., 98 N.Y.2d 314 (N.Y. 2002) (standards under GBL §§ 349 and 350 are substantively identical)
- Corsello v. Verizon New York, Inc., 18 N.Y.3d 777 (N.Y. 2012) (unjust enrichment duplicative of other claims not permitted)