While Just Mayo does not meet the federally regulated standard of identity for mayonnaise, which stipulate that it must contain eggs, the agency now says the brand name can stay, provided new labels include the phrase ‘spread and dressing’, and the phrase ‘egg-free’ is displayed in larger type, higher up on the label.
Hampton Creek has also agreed to make the egg/pea shoot logo smaller, and define what it means by the term ‘just’ on the display panel of the product, which is made from canola oil, yellow pea protein and other ingredients.
Josh Tetrick: I feel immensely grateful
CEO Josh Tetrick told FoodNavigator-USA: “It’s a phenomenal story of regulators getting together with a small food company and finding common ground.
“When people say the word 'FDA', it can feel a bit like an abstraction, and I think it was to me until I went to the headquarters and met the people and saw what they care about. With these changes they believe we are being clear enough about the attributes of the product, and I came out of the meeting feeling immensely grateful.”
“This isn't a story about winning or losing. It's a story about creating a just food system. A food system that is healthier and stronger and more aligned with our values. It's a story about a group of professionals and a young company thoughtfully engaged in that mission.”
Josh Tetrick, CEO, Hampton Creek
The FDA did not elaborate on the detail of the agreement it had reached with Hampton Creek, but told FoodNavigator-USA that the issues raised in its August 12 warning letter had been resolved.
“FDA and the firm met to discuss the issues cited in the warning letter and worked together to address them," said an FDA spokeswoman. "The firm committed to making labeling changes that satisfactorily address the concerns noted in FDA’s correspondence. Therefore the FDA considers the issues cited in the warning letter to be resolved and will issue a close out letter soon.”
The new label includes a panel saying: What is just? and goes on to define it as "guided by reason, justice and fairness".
On the left hand side of the new label it adds: "Good food would be tastier and less expensive whether you're a single mom in Alabama or a college student in Michigan. That's just, and that's the point of Hampton Creek."
Attorney: It appears that the FDA was convinced that JUST MAYO may be considered a 'substitute food'
While Tetrick described the decision as “historic” and something that would “have a positive impact beyond Hampton Creek and its products”, lawyers FoodNavigator-USA contacted for comment said it was probably too early to say.
However, it does appear that the FDA will now allow a food product to expressly disclaim its statement of identity on the front of the label, David Ter Molen, a partner in the Chicago offices of law firm Freeborn & Peters LLP, told us:
“Mayo is plainly a synonym for mayonnaise and a product bearing that name as its Statement of Identity should plainly conform with the FDA’s definition of mayonnaise. This was the FDA’s position in its warning letter to Hampton Creek.
"It appears that the FDA was convinced that JUST MAYO may be considered a 'substitute food' as defined under 21 CFR 101.13(d) that may properly reference mayonnaise with the appropriate disclaimers.
"What makes this case somewhat unique is that “Mayo” is the key component of the product’s name as opposed to a “reference food” on the label. The most relevant precedent for this decision relates to Muscle Milk. After an FDA warning letter and a class action lawsuit, this product now has a large “Contains No Milk” disclaimer under its name."
FDA will now allow a food product to expressly disclaim its statement of identity on the front of the label
He added: "Both examples suggest that the FDA will now allow a food product to expressly disclaim its statement of identity on the front of the label so that, in the FDA’s eyes, it is not false or misleading in any respect. This, of course, leaves room for subjective interpretation."
As for the imagery (the Just Mayo label features what looks like an egg with a pea shoot inside it), he said: "Many food companies are running into legal problems using imagery of, for example, blueberries and pomegranates, on 'Blueberry Pomegranate' flavored juice blends that only include small amounts of blueberry and pomegranate juice. And the new JUST MAYO label still features an egg.
"The FDA presumably believed that because the egg also incorporates a plant, that this image simply reinforces that this is a substitute for egg-based mayonnaise that is egg-free and plant-based. Reasonable minds, however, could also argue that the egg is a dominant portion of the new label, that the plant within the egg is very subtle, and that this imagery undermines the disclaimers on the label."
Attorney: Labels will be judged on a case by case basis
Ivan Wasserman, partner in the Washington DC office at law firm Manatt, Phelps and Phillips, said the new description of ‘Just’ on the label was a “little vague” but said the fact the term ‘egg-free’ was now more prominent – and closer to the brand name ‘Just Mayo’ – was an important change.
Asked whether he now expected a flurry of products (Just Butter, Just Cheese, Just Cream) adopting similar tactics when it came to using names with standards of identity attached, he said: “Maybe companies will get more creative, but these things will be judged on a case by case basis by the FDA, so it remains to be seen whether this represents a loosening of standards.”
Standards of identity
Standards of identity have been hotly debated in food law circles recently following a series of lawsuits over the use of the term ‘milk’ to describe plant-based beverages (‘almondmilk’ , ‘soymilk’).
While the matter has not been settled definitively, judges handling a couple of high profile ‘plantmilk’ false advertising lawsuits have ruled in favor of the defendants, with US district judge Vince Chhabria recently noting that the fact there is a federal standard of identity for ‘milk’ [which limits it to lacteal secretions from cows] “does not categorically preclude a company from giving any food product a name that includes the word milk”.
He added: “The reasonable consumer (indeed, even the least sophisticated consumer) does not think soymilk comes from a cow.”
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 including Whole Foods, Kroger, Walmart, Target and Safeway from a standing start in 2013. IT is also available in 2,300 public schools ad 45 colleges.