Letter shows FDA is serious about enforcing standards of identity, says lawyer

FDA warning letter to Hampton Creek could trigger new wave of lawsuits, predict attorneys

By Elaine Watson contact

- Last updated on GMT

Just Mayo is made from canola oil, yellow pea protein and other ingredients... but no egg
Just Mayo is made from canola oil, yellow pea protein and other ingredients... but no egg

Related tags: Hampton creek, Class action

While Unilever dropped a false advertising lawsuit over egg-free spread Just Mayo last year amid an avalanche of bad PR, the FDA has picked up where Unilever left off with a warning letter advising brand owner Hampton Creek it is playing fast and loose with federal food labeling regulations.

And while Hampton Creek has thus far managed to dodge legal bullets (click HERE​ and HERE​) over Just Mayo – which the FDA says does not comply with federal standards of identify for the labeling of mayonnaise – it may now face a new wave of consumer class actions, predict legal experts.

FDA: The term ‘mayo’ has long been used and understood as shorthand or slang for mayonnaise

In the warning letter​, the FDA told Hampton Creek:  “Your Just Mayo and Just Mayo Sriracha products are misbranded… in that they purport to be the standardized food mayonnaise due to the misleading name and imagery used on the label, but do not qualify as the standardized food mayonnaise​ [21.CFR.169.140​ stipulates that mayonnaise must contain ‘one or more… egg yolk-containing ingredients’].

And shortening ‘mayonnaise’ to ‘mayo’ does not get Hampton Creek off the hook, claimed the FDA: “The term ‘mayo’ has long been used and understood as shorthand or slang for mayonnaise. Additionally, the use of the term ‘Just’ together with ‘Mayo’ reinforces the impression that the products are real mayonnaise by suggesting that they are ‘all mayonnaise’ or ‘nothing but’ mayonnaise.   

“Additionally, the products contain additional ingredients that are not permitted by the standard of identity for mayonnaise, such as modified food starch.”

Separately, Just Mayo does not meet the requirements for a ‘cholesterol-free’ nutrient content claim (by failing to disclose the level of total fat per serving next to the said claim), while its website also includes an unauthorized implied heart health claim (the product contains too much fat to qualify), alleged the FDA.

"Your Just Mayo and Just Mayo Sriracha do not meet the definition of the standard for mayonnaise​. According to the labels for these products, neither product contains eggs. Additionally, the products contain additional ingredients that are not permitted by the standard of identity for mayonnaise, such as modified food starch."FDA warning letter to Hampton Creek, dated August 12, 2015

Hampton Creek CEO Josh Tetrick: We hope to find some common ground with the FDA  

Hampton Creek CEO Josh Tetrick told FoodNavigator-USA that he had "had a really great conversation with the FDA earlier today and we're going to sit down and hopefully find some common ground".

Josh-Tetrick-Hampton-Creek-Picture-Cody Pickens
Josh Tetrick: 'We're solid on keeping our name.'

Asked about the threat of lawsuits, he said: "We're a company that's grown really fast and sometimes this kind of stuff comes up."

In an emailed statement sent to reporters subsequently, Tetrick added: "FDA gets the import of what we're doing - and why it matters to our food system. This is larger than a conversation about mayo, as innovation, especially when it has a positive impact, is important to them. We'll sit down with them shortly, and are excited to talk with them about our approach. They get it much more than folks realize.

"And we're solid on keeping our name. "

However, its options may be fairly limited, said attorneys.

David Ter Molen
David Ter Molen: “Given today’s climate, Hampton Creek should have known the risks."

David L. Ter Molen, a partner in the Chicago offices of law firm Freeborn & Peters LLP, told FoodNavigator-USA: “Given today’s climate, Hampton Creek should have known the risks that have subsequently arisen when it moved forward with the 'Just Mayo' brand name which includes a depiction of an egg on the label.

“And given the additional health claim issues noted in the warning letter, I would be surprised if there isn’t another lawsuit that piggy-backs off that aspect of the warning letter.”

Attorney: I imagine they will try to come to a resolution that addresses the concerns but falls short of having to change the name

Asked what options are now open to Hampton Creek, Ivan Wasserman, partner in the Washington DC office at law firm Manatt, Phelps and Phillips, added: “I imagine they will try to come to a resolution that addresses the concerns but falls short of having to change the name, maybe by providing additional information or clarifications on the label.

"Maybe they have consumer survey data showing that consumers know Just Mayo is not like regular mayonnaise, but it’s going to be tough.”

Meanwhile, plaintiffs attorneys – who regularly trawl through FDA warning letters looking for firms that may be in breach of labeling rules – will likely pay close attention to this letter, he predicted.

“These days warning letters routinely trigger class actions.”

David Biderman color landscape
David Biderman: 'Hampton Creek took an aggressive stance with Unilever, and while we don’t know what happened in the background, appeared to make the Unilever challenge appear to be a David and Goliath battle. I am not sure if that strategy will work with the FDA.'

Attorney: They might be able to negotiate something with the FDA

David Biderman, a partner in Perkins Coie’s Consumer Class Action Defense practice, also noted that “Litigation often follows these FDA warning letters” ​with KIND (which received an FDA warning letter recently that was immediately followed by a wave of consumer class action lawsuits​) serving as “the paradigm case where a number of follow on suits have been filed”.

As for Hampton Creek’s options, he said: “They might be able to negotiate something ​[with the FDA]. Or if ​[Hampton Creek wants to be] truly aggressive ​[it could] challenge the claim that Mayo is equivalent to Mayonnaise.”

mayo petition
While Unilever was painted as a “corporate bully” for suing a smaller – albeit very well-funded – rival such as Hampton Creek, some people felt that Hampton Creek was trying to play by different rules than everyone else

He added: “Hampton Creek took an aggressive stance with Unilever, and while we don’t know what happened in the background, appeared to make the Unilever challenge appear to be a David and Goliath battle.  I am not sure if that strategy will work with the FDA.” 

 Attorney: Letter shows that FDA is serious about enforcing standards of identity

Bruce Silverglade, principal at law firm Olsson Frank Weeda Terman Matz PC, meanwhile, said that the warning letter "shows that the FDA is serious about enforcing standards of identity".

The fact the letter also cites violations of health and nutrition claim regulations also makes it "precisely the type of document that Plaintiffs’ attorneys use as a basis for class action cases", ​he added. 

"In the old days, the company might have simply resolved the matter by changing its label and informing the FDA.  These days, Hampton Creek may face a spate of class action cases as well.  Today’s political and legal environment is no time to push the envelope.  Caution should be the watchword when it comes to label claims."

Developed by San Francisco-based Hampton Creek, the egg-free spread Just Mayo has been phenomenally successful,​ and is now available in well over 15,000 stores from a standing start in 2013. 

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5 comments

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FDA protects big business, not food health

Posted by Chad Caughmann,

The FDA has a history of protecting big business at the expense of smaller, healthier food operations. They've created rules that often don't make any sense and are impossible for small farmers to follow.

Such ridiculous rules such as not allowing Cholesterol-free foods to be labeled as such, because it doesn't also label the fat content. Guess what...Cholesterol can be independent of fat. Cholesterol has been proven to only come from animal products...so if your food is free of animal products, then why shouldn't it be labeled as Cholesterol-free, especially since it's the truth? Just more BS rules from the FDA.

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What it is and isn't Take 2

Posted by john e miller,

As I posted on this website HF article 23 March 2015:

"What it is and what it isn't"

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

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"Just Mayo" is misleading consumers

Posted by Texas Consumer,

We need the FDA to keep unscrupulous companies honest; the company should do the right thing and comply with the FDA's request regarding the product's name given the actual ingredients (or lack thereof) of the product.

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