Unilever owns the Hellmann’s® and Best Food’s® brands of mayonnaise. On October 31, 2014, Unilever filed suit in the U.S. District Court in New Jersey against Hampton Creek, Inc. for false advertising and unfair competition for selling an egg-free spread under the brand name “Just Mayo.” According to Unilever, the lack of any eggs in the product precludes it from being labeled as “mayonnaise” under federal regulations and consumers are further misled in this regard by the egg on the product label. As alleged in the Complaint:
“Mayo” is defined in the dictionary and in common usage as “mayonnaise.” Under federal regulations, common dictionary definitions and as consumers understand it, “mayonnaise” or “mayo” is a product that contains eggs. That ingredient does not exist in Just Mayo. By calling its vegan sandwich spread Just Mayo, Hampton Creek falsely communicates to consumers that Just Mayo is mayonnaise, when it in fact, it is not. The literally false product name is highlighted on the label, which also features a giant image of an egg … and in advertising for Just Mayo.
Finally, Unilever complains that comparisons made by Hampton Creek claiming that JUST MAYO tastes better and is superior to “real” mayonnaise, including Hellmann’s, are unsubstantiated and part of its “larger campaign and pattern of unfair competition.”
The JUST MAYO brand is a rising newcomer in this market segment. As noted by the Wall Street Journal, “Hampton Creek, founded three years ago, has raised $30 million from investors including Microsoft co-founder Bill Gates for its vision of making plant-based substitutes for common egg-based products that it says are healthier and more environmentally friendly.” The lawsuit has inspired a petition on Change.org asking Unilever to “stop bullying sustainable food companies” which has more than 16,000 supporters as of November 11th.
Although certain blogs have labeled the lawsuit frivolous, it is highly doubtful that Hampton Creek can have the claims dismissed as a matter of law. Rather, the case will likely move forward and hinge on the ultimate question of whether the “Just Mayo” label and associated marketing includes one or more false or misleading statements of fact that actual deceived or has the tendency to deceive a substantial segment of consumers and influence the purchasing decisions of consumers.
Significantly, this case underscores the dangers of creating and investing in an attractive but risky brand name. It is undisputed that the FDS’s standard of identity defines mayonnaise as “the emulsified semi-solid food prepared from vegetable oil(s),” an “acidifying” ingredient of either (1) vinegar or (2) lemon juice or lime juice, or both, and an “egg yolk-containing” ingredient. 21 C.F.R. § 169.140. Thus, by naming an egg-free product “Just Mayo,” there was always a risk that it would be accused of deceiving consumers.
UPDATE: I was just quoted in connection with this lawsuit on FoodNavigator-USA — see here.