MANHATTAN (CN) – A dispute over “overrun” – the air pumped into ice cream – has led a franchisee of a low-calorie ice cream chain to accuse News Corp. and Fox 5 News of defaming it in a “disparaging” broadcast “assault.”
Lead plaintiff Matthew Prince, a franchisee of D’Lites Emporium ice cream, opened three outlets in the New York Metro area under the L.A.M.D.B.H. corporate name. The company has no ties to the similarly named Tasti D-Lite chain, which has about 30 stores in the tri-state area.
Prince says that Fox reporter, and co-defendant, Arnold Diaz defamed his ice cream to “millions of audience viewers” on an 8-minute May 12 broadcast on Diaz’s “popular segment ‘Shame, Shame, Shame,'” which “mentioned all three of L.A.M.D.B.H. locations by name.”
Prince claims the broadcast “ruined” his plans to open 15 new stores, and that at least one potential landlord “ceased negotiations” after seeing the “Shame segment.” Prince says he’s invested more than $1 million into licensing rights and other expenses for his ice cream stores.
The heart of the complaint appears to be Prince’s, and Diaz’s, claims about the ice cream’s nutritional values, and how to measure volume of ice cream.
Prince claims D’Lites Emporium ice cream “is low in sodium, sugar, fat, carbohydrates, cholesterol, and is a healthier alternative to traditional ice cream.” The chain was founded in 1982 in Plantation, Fla., and has 25 outlets, according to the complaint in New York County Court.
“DEI provides nutritional information to its customers in four-ounce fluid servings sizes or ½ cup as reported by D’Lites’ nutritional facts,” the complaint states. “The volume calculation enables consumers to easily understand the amount of product that they choose to consume. So long as the customer understands how much ice cream equals ½ cup the customer can easily determine the calories and nutritional content of the ice cream.”
Actually, it’s not quite so easy as that.
Because “soft-serve” ice cream is puffed up with air, in a process known as overrun, “the finished soft-serve ice cream product contains a mere fraction of the amount of liquid product that would otherwise be required to fill a four fluid ounce cup,” Prince acknowledges in the complaint.
He says the defendants investigated the nutritional claims by sending ice cream samples to an independent lab, Sani-Pure, in New Jersey.
But “Sani-Pure performed its initial tests upon material presented to it in plastic bags, which material had substantially melted into liquid form. Thus, unless Sani-Pure knew the overrun and the amount of air injected into D’Lites ice cream, it would impossible for Sani-Pure to determine the number of grams presented to customers in a serving. Defendants made no efforts to determine the percentage of overrun or provide Sani-Pure with information reasonably necessary in order for defendants to make accurate nutritional findings.”
The way Prince sees it: “The ice cream provided by defendants was not in fact a ½ cup sample which would have contained approximately 40 grams of ice cream, but instead defendants provided Sani-Pure with between 160 and 170 grams of ice cream product.”
Naturally, Prince says, this “caused the corresponding Sani-Pure lab results to be false and misleading as to the nutritional values contained in a ½ cup of D’Lites ice cream. Defendants’ ability to label the volume of the serving interfered with the accuracy of the lab tests in a grossly irresponsible manner and without consideration for the standards of measurement ordinarily followed in the industry.
“Defendants, knowing of their control and manipulation of the lab test results, and at a time and place known only to themselves, decided that D’Lites would be a target of Shame’s sensationalized journalism regardless of the truth, veracity, or conflicting data that was in defendants’ possession at the time of broadcasting the segment.”
Prince also objects that a Fox 5 employee posed as a person interested in becoming a franchisee to set up an appointment with a D’Lites license-holder who ran one of his shops. Then, with a cameraman “lying in wait … Diaz sprung out from his hiding point” to aggressively confront the woman, who was holding her 13-month-old baby.
“Diaz and his cohorts proceeded to pursue Abt (the license holder) towards the D’Lites storefront, whereupon Diaz began to shout – so as to make certain that others nearby could hear – that D’Lites was ‘selling a lie.’
“Worse still, Diaz approached D’Lites’ customers who were entering the company’s storefront and repeatedly told the customers that D’Lites was ‘lying to customers’ and that its products were ‘not low carbs,’ ‘not low in sugar,’ and that he had lab tests to prove it. Diaz also made clear and published to third parties that D’Lites was ‘advertising something that’s not true.’ Diaz also repeated the aforesaid statements while showing customers who were entering and exiting the First Class’ store his ‘lab tests.’
“In light of Diu’s conduct, Abt became concerned and the local Woodbury police department was called for assistance.”
Prince seeks punitive damages for defamation, tortious interference, fraud, negligent misrepresentation and other charges. He is represented by Adam Gana with Napoli Bern Ripka & Associates.