After nearly two years of scrutinizing the frozen-food aisles for evidence and planning, a Tucson man had his day in court Friday.
Ice cream crusader Gerald L. Morris filed a complaint in Pima County Justice Court in December against The Kroger Co., the grocery giant behind Fry’s Food and Drug Stores in Tucson and more than 2,000 similar stores of varying names across the country.
Morris, 71, contends Kroger’s Fry’s stores have repeatedly and knowingly made false claims in printed advertising about the ice cream products sold at the stores.
“I believe it’s fraud,” Morris said.
His concern stems from printed advertising in newspapers and direct mailings in which the company describes ice cream products in terms of weight and not volume.
Morris said he compiled numerous Fry’s advertisements for months, which show ice cream products for sale, listing the sizes in ounces.
For example, some products were advertised as 48 ounces.
But he noticed a discrepancy when he once forgot a 1.5-quart container of ice cream in his trunk.
The ice cream melted by the time he recovered it, and when he opened it the volume had decreased significantly.
He weighed the container at home and found it was about 2 pounds, even though the store advertisements referred to it as “48 ounces,” which would mean it should weigh 3 pounds if it was described by weight and not volume.
He told store managers about the discrepancy and even placed ice cream cartons on the digital scales at store deli counters to prove it numerous times, as well as contacting Kroger corporate officials.
“I’m an irate consumer,” Morris said.
Morris’ complaint claims the stores have engaged in “false, deceptive, and misleading printed advertisement,” and asked for $2,500 in costs and damages.
Salt Lake City-based Fry’s Vice President Kyle McKay said the stores recognized a potential error in their advertisements and have acted to change them.
“Initially, there was an error with Fry’s with regards to advertising,” McKay said in an interview.
At Friday’s hearing before small-claims hearing officer David Kryder, McKay said he thinks Morris has a fundamental misunderstanding about the difference between fluid ounces and weight ounces and federal food-labeling regulations.
“When was the last time you went to a store to buy a pound of ice cream? Never,” McKay said.
He said food products, ice cream included, could be described in generic terms such as “ounces” if the distinction is obvious.
“If it were weight, we would be required to use ‘net weight,’ ” he said.
McKay also used the example of convenience store labeling of fountain drinks in terms of simple ounces, saying, “everyone knows it’s fluid ounces.”
Morris responded that his suit “has nothing to do with fluid ounces; it has to do with false advertising.” He argued fluid ounces should be used only in terms of “kitchen measurements.”
Kryder, the hearing officer, disputed that statement. “There seems to be a dispute here between the weight and volume,” he said.
Kryder said he would review the case further and send the parties his ruling within 10 business days.
Morris said he felt he had made his case well and expected a ruling in his favor.