Most people are smart enough to understand the significant categorical differences between an ice cream stain and cigarette smoke.
Also, "foul" is completely subjective in this case. Guess what: I hate the plasticy/industrial smell of certain types of clothing packages. But I'm not gonna go around claiming the item is "damaged" simply because I don't like the way it smells out of the box.
What is the categorical difference between an ice cream stain and cigarette smoke? Because I honestly don't understand what distinction you're trying to make.
One is a physical stain that might very well be permanent. The other is an odor that will come out after literally one wash (or after airing it out for a while).
The ice cream stain might not be permanent, and the cigarette smell might be, all depending on the specifics, so I see no qualitative difference between the two.
And again, cigarette smoke does not necessarily wash out as easily as you seem to think it does.
Would you be as understanding of the driver if he got ice cream all over the clothes instead? After all, wash it and it'll come out.