Lawsuit v Hampton Creek Foods re-filed in Florida: 'Just Mayo is not mayonnaise at all'

By Elaine Watson contact

- Last updated on GMT

Just Mayo lawsuit v Hampton Creek Foods re-filed in Florida

Related tags: Hampton creek, Consumer protection, Pleading, Egg

A false advertising lawsuit filed – and then abruptly withdrawn – by Florida plaintiff Leah Davis against Hampton Creek Foods over its Just Mayo spread has been re-filed in a different court.

Davis’s original complaint​ ​(1:15-cv-20440) – filed on Feb 4 in the US district court for the southern district of Florida – was voluntarily dismissed on Feb 6 by her attorneys after the judge said they had not provided sufficient evidence to prove that damages would exceed a $5m threshold.

On March 13, however, Davis’s class action lawsuit was filed again*, this time in Florida’s 11th​Judicial Circuit Court. 

In her complaint (2015-5993-CA), which mirrors the allegations made in Unilever’s high-profile lawsuit vs Hampton Creek (which was dropped following a storm of bad PR​), Davis argues that the federal standard of identity for mayonnaise (21.CFR.169.140​) stipulates that it must contain “one or more… egg yolk-containing ingredients”.

But Just Mayo - made from yellow pea protein and other ingredients - is “not mayonnaise at all​”, claims Davis, who also notes that despite the egg-shaped image on its label, Just Mayo does not taste or perform like ‘real’ mayonnaise, and accuses Hampton Creek of violating the Florida Deceptive and Unfair Trade Practices Act, and of unjust enrichment.

Attorney: Plaintiffs in the new case may actually have an easier time proving their allegations in court than Unilever 

While Unilever was painted as a corporate bully by many observers for taking legal action, many legal experts said at the time that it had a good case, which could hinge upon whether most consumers would assume that Just Mayo is mayonnaise, and that mayonnaise contains eggs.

Speaking to FoodNavigator-USA when Davis's complaint was first filed in February, Bruce Silverglade, principal at law firm Olsson Frank Weeda Terman Matz PC, said: “The plaintiffs in the new case may actually have an easier time proving their allegations in court than Unilever would have had because the legal standards under Florida consumer protection law are more flexible than those under the federal Lanham Act​ [a federal unfair competition law]."

Ivan Wasserman, partner in the Washington DC office at law firm Manatt, Phelps and Phillips, added: "This could come down to a question about which came first, the mayo or the eggs?  In other words, are consumers buying mayonnaise because it contains eggs or because it tastes, looks, and performs like the product they know as mayonnaise?"

Product label says 'egg-free'  

David L. Ter Molen, a partner in the Chicago offices of law firm Freeborn & Peters LLP, told us: “The central allegation is that under both federal regulations and common dictionary definitions, 'mayo' is 'mayonnaise,' and 'mayonnaise' is a product that must contain eggs.

"And referring to the egg-free product as 'Just Mayo' only heightens the alleged deception. Putting aside issues such as standing, it is doubtful that Hampton Creek can have the two claims dismissed as a matter of law, but it may attempt to do so based on the 'egg free' statement on the label." 

Finally, David Biderman, a partner in Perkins Coie’s Consumer Class Action Defense practice, said he was not surprised to see that the Unilever case had led to copycat consumer class action litigation: “The lesson is to be derived from this is that aggressive labeling is very risky now not only because of the potential for claims from competitors but also because of follow on class actions.”

David Biderman color landscape
David Biderman:"The lesson is to be derived from this is that aggressive labeling is very risky now not only because of the potential for claims from competitors but also because of follow on class actions.”

Hampton Creek:  We like the way Just Mayo rolls off the tongue

Speaking to us last year,​ Hampton Creek Foods founder and CEO Josh Tetrick said he had taken legal advice when developing the Just Mayo name and noted that the federal standard of identity explicitly refers to ‘mayonnaise’, not ‘mayo’, which, he noted, is also used by other vegan spreads such as Earth Balance ‘Mindful Mayo​’.

As for consumer deception, few consumers familiar with the Just Mayo brand or with Hampton Creek were probably unaware that it was egg-free, given that the whole rationale behind the product stemmed from Tetrick’s well-publicized dislike of industrialized egg production, he added.

Asked to comment on Davis's lawsuit this week, Tetrick told FoodNavigator-USA: "If we keep making it easy for good people to do the right thing they'll do it.

"And no matter what, we're going to keep standing up for that. And we're going to send Leah a free case of Just Mayo." 

*Davis's attorney Nathan Zipperian from Shepherd Finkelman Miller & Shah LLP told FoodNavigator-USA: "The lawsuit is essentially the same as the suit filed in February, except it has been tailored to Florida state court and is filed on behalf of Florida consumers only."

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4 comments

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What it is and what it isn't

Posted by john e miller,

Maybe instead of 'Just Mayo' they could've called it 'Not Mayo'.

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What is the Statement of Identity?

Posted by the-moody-foodie,

I haven't been able to find this product yet, but what I've been wondering is whether there's a separate SOI? / Product name? Or is it really "Just Mayo"?

I can see what they're trying to do and no doubt it's a great and well-meaning product - I don't like mayo anyway but would buy this myself, but that's knowing what it is. But when you have a Kraft product that's called "Mayo" and it IS Mayonnaise, I think it's fair to say people could conceivably be fooled (possibly same with 'Mindful Mayo' but again, I'm not sure of its actual SOI). Even if there are also claims on pack, are we just going to throw away all the rules about misbranding re. SOI so someone can use a catchy name instead? That's just not how it's supposed to work...

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Full label photo

Posted by john e miller,

Per the previous comment, this is a URL link to a photo of the full jar and logo.

http://topclassactions.com/wp-content/uploads/2015/03/Just-Mayo.jpg

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