But, the suit claims, "since 1990 [ICBIY and Brice Foods] have continued to change their manufacturing ingredients from the freshest, highest quality standard to other cheaper, inferior components."
What's worse, the suit alleges, is that ICBIY never told store owners or customers that it was changing the frozen yogurt. "[They] have incessantly represented and communicated to franchisees, consumers...and the public generally that their yogurt was made with milk fresh from the farm, and that as a result their product was of the highest quality and was equivalent to 'food of the Gods.'"
Mark and Frank Gunn, the original plaintiffs in the suit, have now been joined in the legal action by their brother Doug, father Marvin, and Joyce Ann Bromley, a friend and former ICBIY franchise owner.
They hope to show that ICBIY defrauded them with its claims about the quality of its yogurt, and collect damages.
ICBIY officials downplay the significance of the company's increased use of powdered milk. But the controversy comes at a bad time for the company.
From its peak of 400 stores, ICBIY now has only 220 left in the United States, including the franchise at The Ballpark in Arlington. In September, the company announced that beginning next year it will stop charging franchise owners royalties on the yogurt they sell.
The company hopes the move will bolster the bottom line of marginal stores and keep ICBIY's network of outlets from growing even smaller, Herskowitz says. "The system has been losing money, the individual stores," he adds.
ICBIY officials call the lawsuit an effort by the Gunns to escape accountability for their own behavior in Colorado. They steadfastly insist that the powdered milk has not changed their product, and that no one has been misled.
Still, not long after the fraud charges were raised in public court documents, ICBIY sent special packages to its franchise owners.
The packages contained new nutritional brochures, the ones meant to be set out on counters for customers to peruse. An accompanying letter instructed store owners to "destroy all of your current stock" of old brochures.
The new brochures included "updated copy," the letter noted. Among the updates was one significant deletion. The brochures now on the counters of ICBIY stores make no mention of the company operating its own dairy.