online ingredients list can't avoid deception claim, at least where survey suggests deception

Duncan v. Kahala Franchising, L.L.C., --- F.Supp.3d ----, CV 22-7841 (GRB)(AYS), 2024 WL 1936053 (E.D.N.Y. May 2, 2024)

Lots of ice cream jokes/quotes in here, but the basic question is: “should consumers ordering pistachio ice cream at one of [Cold Stone Creamery’s] establishments expect that that product will contain actual pistachios?” Because it doesn’t, the consumer protection claim survives.

To bolster the plausibility of her claims, plaintiff alleged that industry practice was to the contrary: Häagen-Dazs Pistachio Ice Cream and Ben and Jerry’s Pistachio Ice Cream both include actual pistachios, as does Thrifty brand ice cream, disparagingly described as “a less premium brand than Cold Stone Creamery.” And Cold Stone Creamery’s “strawberry ice cream contains strawberry, banana ice cream contains banana, and its chocolate hazelnut ice cream contains chocolate and hazelnut.”  Duncan also surveyed more than 400 U.S. consumers, each of whom had purchased ice cream within the preceding three months. Respondents asked “When viewing the image above, what ingredients do you believe would be included in the Pistachio ice cream? Select all that apply.” There was a list of ten potential ingredients, including pistachio and flavor agents, as well as the option “none of the above.” About 85% of the respondents believed that pistachio would be included; likewise, 88.6% of respondents expected that the Mint ice cream contains “mint.” (Plaintiff also challenged the absence of mango, coconut, mint and orange in those respective flavors, and the absence of butter in butter pecan, but there was no survey on anything but pistachio and mint.)

Given that the “vanilla” cases often dismiss claims at the pleading stage, should the court do so here? The court identified relevant factors in previous cases:

[T]he presence or absence of express representations regarding the ingredients used, such as “made with”; the availability of an ingredients list to the purchasing consumer; whether the flavor designation employed finds use as both a noun and an adjective; and the availability and significance of consumer survey evidence.

In addition, the court considered “allegations concerning competitor products giving rise to an inference about consumer expectations.”

There was no express “made with pistachio” representation here, but that wasn’t dispositive. Context includes the ingredients list and the visual appearance of the product. The fact that the ingredient list was available online was not helpful to defendant. While back-of-package ingredients lists can clarify any ambiguity, the analogy to online ingredients lists “fail[ed] spectacularly.”

Courts have rejected defense arguments based on ingredients lists that are difficult for a consumer to access. [Citing cases rejecting reliance on small-print or hard-to-find disclosures.] These typographic barriers pale in comparison to the physical segregation presented in this case: defendant is not attempting to rely on an ingredients list on the package or in small print on a sign, which might require a consumer to inspect a side panel or reach for a pair of reading glasses. Rather, examining defendant’s ingredients list requires access to an Internet-capable device and conducting a web search to locate it. If “a reasonable consumer should not be expected to consult the Nutrition Facts panel on the side of the box to correct misleading information set forth in large bold type on the front of the box,” it seems inconceivable that such a consumer should have to search online to find the relevant web page while waiting in line to order a scoop of ice cream.

 

In addition, requiring consumers to check online “also seems antithetical to the experience offered by defendant to the public, as described on another section of its website:… We like to think we’re really in the business of making people happy ... It’s all about what we call the 10-Minute Vacation® ... that 10-minute getaway you deserve from the world outside our doors. Just head inside any Cold Stone Creamery, and that’s what you’ll get.” That was inconsistent with a duty to locate, read, and analyze online ingredient statements.

Defendant also argued that the visual appearance of the ice cream—smooth and without apparent chunks of pistachio—avoided any deception, but that wasn’t apparent from the face of the complaint.

Adjectival use as a flavor name favored the defendant, but that too wasn’t enough for pistachio; it was weightier for mint, because “as an ingredient descriptor, it is highly unspecific [as to spearmint, peppermint, etc.], whereas it commonly finds use as a flavor descriptor without any reasonable expectation that the leaves of a particular mint plant will be involved.”

Use of actual pistachios in competitive products favored the plaintiff, again only as to pistachio.

The survey was the most helpful. “Defendant attempts to quarrel with the survey methodology, an effort which proves both unpersuasive and misplaced at this juncture, as the open-ended questioning here stands in stark contrast to leading questions asked in other cases.” The nearly 90% results were also significant, though not as persuasive for mint.

While 88% of the respondents indicated that they expected to find “mint” among the included ingredients, it is impossible to say what this means. Did they believe that the ice cream contained mint leaves or the extract of a mint plant? As “mint” encompasses an entire family of plants as well as common candies that bear the flavor of mint, this result proves far less compelling. Perhaps, after all, some respondents expected to find “chunks of red and green mint candy,” the advertised feature of Hershey’s Premium Peppermint Stick ice cream ….

Thus, the false advertising consumer protection claim was plausible as to pistachio, not as to the other flavors. It’s always so interesting seeing what generalizations about consumer beliefs courts are willing to make. I guess they have to re-run the survey with each flavor, and also with a list of mint plants? Would “mint from a mint plant such as spearmint or peppermint” be an acceptable category?