Ice Cream Maker Facing Class Action Lawsuit After 60+ Products Recalled Over Potential Listeria Contamination

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The maker of several popular varieties of ice cream and sorbet faces a proposed class action lawsuit that alleges it has failed to warn consumers that the now-recalled products could be contaminated with Listeria monocytogenes, which can cause serious and sometimes fatal infections.

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The 38-page lawsuit against Maryland-based Totally Cool, Inc., which makes Friendly’s, Hershey’s Ice Cream, Chipwich, Cumberland Farms, Dolcezza Gelato, Abilyn’s Frozen Bakery and Yelloh! products, among others, was filed days after the company, with the Food and Drug Administration, announced a voluntary recall of all brands of the ice cream products in its portfolio due to possible listeria contamination.

The complete list of the more than 60 products recalled due to possible listeria contamination can be found here.

Per the FDA, no illnesses linked to the recalled products have been reported to date, and Totally Cool has stopped the production and distribution of the affected items. The ice cream recall was initiated after FDA sampling found the presence of Listeria monocytogenes, which is responsible for causing listeria infection, the case notes.

The proposed class action accuses Totally Cool, Inc. of “improperly, deceptively, and misleadingly” labeling and marketing the recalled ice cream products to consumers by failing to disclose that the items are contaminated with Listeria monocytogenes.

According to the complaint, foodborne listeriosis is recognized as one of the most dangerous and life-threatening foodborne diseases, and Listeria monocytogenes is able to survive and grow even with refrigeration and other preservation measures.

“The risk of serious infection is particularly concerning for pregnant mothers, infants, the elderly, and immunocompromised individuals, who are highly susceptible to severe infection and even death from Listeria monocytogenes,” the case stresses.

Listeria monocytogenes can cause, among other conditions, sepsis, meningitis, encephalitis, spontaneous abortion, or fever, and even healthy adults may be susceptible to infection issues, the lawsuit relays. Infection comes with a 95 percent hospitalization rate and a high case fatality rate of 20 percent, the suit adds.

The FDA urges consumers who have a recalled Totally Cool ice cream or sorbet product in their possession to return it to the place of purchase for a full refund, or contact the company. However, the lawsuit contends that Totally Cool’s June 25 recall is insufficient given that consumers must return the product to the place of purchase in order to get their money back.

The suit claims the ice cream recall was designed to reach very few people and “to benefit very few of the consumers who purchased the Products.”

“Defendant is well aware that any consumer who was made aware of the recall would be predisposed to throwing the Products away,” the case alleges. “Defendant is also aware that consumers shop in multiple locations and may or may not purchase the Products at the same location each time. Also, most consumers do not maintain receipts and therefore cannot obtain a refund at the purchase location for the recalled Products.”

The ice cream recall lawsuit looks to cover all consumers who bought any of the recalled ice cream or sorbet products anywhere in the United States during the applicable statute of limitations period.

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