A New York state appellate court has affirmed a lower court’s ruling dismissing a lawsuit against a local Fox TV station that investigated and reported on the allegedly false health claims of D’Lites ice cream in two stores. Prince v. Fox Television Stations Inc., No. 107129/2011 (N.Y. App. Div., 1st Dept., order entered March 8, 2016). The eight-minute “Shame Shame Shame” report informed viewers that the nutritional information advertised for a small serving did not correlate to the nutritional infor- mation of the ice cream served by two New Jersey stores; the owner of a D’Lites store—not one involved in the report—sued the station for libel. A lower court then dismissed the lawsuit; details appear in Issue 524 of this Update.

“To the extent that there were purported discrepancies in the measure- ments of sugar and carbohydrates in the test results of the samples sold in stores, plaintiff does not dispute that the servings as sold contained more of these components than the nutritional panel advertised, and thus the report remained substantially true,” the court found. “For the same reasons, the report’s statements that the ice cream was not diabetic-friendly were substantially true.” Further, “any reasonable reader would understand that the statements that D’Lites ice cream was not healthy was an expression of opinion,” the court found. “Because the report repeatedly disclosed the nutritional content of the ice cream, the reader was free to reach his or her own opinion regarding the health of the product.” Accordingly, the court affirmed the lower court’s dismissal.