Arizona area man fights consumer fraud case against Fry’s for allegedly misleading Ice Cream advertising

Arizonan Richard Morris has been described as an “Ice Cream crusader” for his recent court battle against food giant Kroger Food Co., as the result of a small claims lawsuit that Morris filed against the grocery chain giant that owns Fry’s Food & Drug stores in Arizona.

Morris filed a small claims lawsuit in Tucson against Fry’s food stores for deceptive advertising.

According to recent news reports published by the Arizona Daily Star, Morris lost the case, but Morris believes he has won because of his effort to force Frys to change their advertising, and by also bringing attention to the alleged misleading advertising.

The case filed by Morris had alleged that the store was misleading the public in advertisements for ice cream and other frozen dairy products, but a small claims court hearing officer ruled against Morris and concluded that he failed to prove his case.

Morris declared the outcome a “consumer victory”, noting that the store’s printed advertisements have been changed to show the accurate volume of ice cream, instead of weight. The lawsuit had alleged that the use of weight in the advertising was deceptive, in that the actual amount of ice cream was different than the advertised amount.

Fry’s, and many other grocers, have advertised ice cream products with dry-ounce measurements instead of gallons, quarts, pints and fluid-ounces, etc.

According to the published news reports on the case, Kroger Vice President Kyle McKay said that the advertisements now do show the products in such terms, but he claimed that regulations allow them to use generic terms like “ounces” when referencing ice cream products if the meaning is obvious.

In the court case, McKay had argued on behalf of Krogers/Fry’s that most consumers realize that ice cream is packaged by volume and that no consumers expect to buy ice cream by the pound.

However, Morris still disagrees with Kroger and its Fry’s stores, asserting that consumers need to be sure that they are actually getting what they pay for.

Morris is considering appealing his case to a higher court, but in the meantime he plans to also continue his consumer advocacy concerning advertising of ice cream products on a blog called, which is currently being developed.

Believe it or not, questions related to ice cream advertising have actually gone all the way to the United States Supreme Court, nearly 100 years ago, in a case called Hutchinson Ice Cream Co. v. Iowa, 242 U.S. 153 (1916).  There, ice cream producers challenged various state laws that specifically prohibited any advertising of ice cream as being “ice cream” if the product actually contained less than a fixed percentage of butter fat.

In that case, the Supreme Court rejected the claim that such regulations were unreasonable, concluding that the laws were reasonable and constitutional under the Fourteenth Amendment, based on the right of the state under the police power to regulate the sale of products with a view toward preventing frauds or protecting the public health.

The Supreme Court concluded:

The facts show that, in the absence of legislative regulation, the ordinary purchaser at retail does not and cannot know exactly what he is getting when he purchases ice cream. He presumably believes that cream or at least rich milk is among the important ingredients, and he may make his purchase with a knowledge that butter fat is the principal food value in cream or milk. Laws designed to prevent persons from being misled in respect to the weight, measurement, quality, or ingredients of an article of general consumption are a common exercise of the police power.

Hutchinson, at 159.

In the recent Arizona case, it appears that Morris was relying on general consumer protection laws or laws against consumer fraud such as Arizona Revised Statutes, Section 44-1521 through Section 44-1534, which generally prohibit deceptive or misleading advertising or actions in the context of selling virtually any product or service in Arizona.  See A.R.S. Section 44-1522.

Arizona’s Consumer Fraud law is enforceable by private individuals through private lawsuits, and the law is also enforceable by the Arizona Attorney General and county attorneys in the State of Arizona.

If you believe you are a victim of consumer fraud, contact Vince Rabago Law Office for a consultation.

Case source:  Hutchinson Ice Cream Co. v. Iowa, 242 U.S. 153 (1916).

Statute:  Arizona Consumer Fraud Act, A.R.S. 44-1521, et. seq.

News sources:  Arizona Daily Star, January 25, 2014:  Ice cream crusader asks court to weigh in on grocery ads

Arizona Daily Star, February 7, 2014:  I’m Lost But I’m Not Licked, Says Tucson’s Ice Cream Crusader

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