Man Sues Supermarket for Cheating Him Out of Ice Cream (and Loses)

If you should ever meet 71-year-old Gerald Morris of Tuscon, Arizona, whatever you do, don’t ask him about ice cream. Because he’s likely to get all worked up, and regale you with the story of the time he took on the country’s largest supermarket chain, suing them for cheating him out of dollars and dollars and ounces and ounces of ice cream.

Never mind that he ended up losing the case.

But let’s start at the beginning. Late last year, Morris became increasingly frustrated at the amount of ice cream offered for sale at his local Fry’s, a division of Kroger. Time and again, in its weekly ad circulars, Fry’s would advertise its ice cream as containing 48 ounces of the frozen treat.

But Morris wasn’t buying it. He decided to put Fry’s claims to the test. He bought cartons of ice cream, in multiple different flavors, and weighed them – discovering to his horror that they actually weighed anywhere from 26 to 38 ounces.

By his count, Morris complained to Fry’s management 18 different times, finally getting so fed up that he decided to sue. He took his case to Pima County’s small claims court last month, suing Fry’s for the maximum amount allowed, $2,500.

Fry’s appeared to be baffled by the whole thing. “This is the only complaint we’ve ever received about this issue,” Fry’s Vice President Kyle McKay told Phoenix’s KPHO-TV. He insisted that Fry’s is “in compliance with the law, in terms of advertising, labels and weights and measures.”

Not to mention, he added, that Morris apparently has an “inability to accept the difference between a fluid ounce and a dry ounce.”

That’s because ice cream is sold by volume, not by weight. If ice cream were sold melted, or as a rock solid frozen block, you could expect to receive the entire 48 ounces promised on the carton. But frozen ice cream is whipped with air, which gives it that light and fluffy texture. So 48 fluid ounces of ice cream is just not going to weigh 48 ounces on a scale.

But Morris argued that Fry’s was the one that needed a lesson on fluid versus dry ounces. He saved more than a dozen weekly circulars, in which ice cream was advertised as being “48 ounces”, not “48 fluid ounces” (see photo above).

So Morris pursued his case, with visions of blazing a trail for ice cream consuming customers everywhere.

In court yesterday, however, the small claims hearing officer dismissed the suit, with the terse notice “plaintiff did not prove his case.” The ads may have mistakenly said “48 ounces”, but Fry’s ice cream cartons are clearly labeled “48 fluid ounces.” It seems one man’s false advertising is another man’s sloppy copywriting.

So as a crusading consumer advocate, Gerald Morris is no Ralph Nader. Then again, Fry’s has ice cream on sale this week, and it’s now clearly labeled in the circular as being “48 fluid ounces”. So Morris may have lost his battle, but in the end, he may have won his ice cream war.