Antitrust Law Daily Wrap Up, ADVERTISING NEWS: Ads for vegan mayonnaise alternative alleged to deceive consumers, (Nov 12, 2014)

By Linda O’Brien, J.D., LL.M.

Food technology company Hampton Creek has engaged in false advertising and unfair competition by labeling and advertising its plant-based vegan sandwich spread as an alternative to real mayonnaise, according to a complaint filed in the federal district court in Newark, New Jersey (Conopco, Inc. v. Hampton Creek, Inc., October 31, 2014).

Conopco, Inc., doing business as Unilever, manufactures and distributes food products, including Best Foods and Hellman’s brands of mayonnaise.

The complaint states that Hampton Creek sells a sandwich spread named “Just Mayo” in direct competition with Unilever’s Best Foods and Hellman’s mayonnaise. Despite the name, “Just Mayo” is not mayonnaise; it is a plant-based vegan alternative to mayonnaise. Dictionary definitions and consumer understanding identify mayonnaise as a product that contains eggs. The Food and Drug Administration defines mayonnaise as “the emulsified semi-solid food prepared with vegetable oils, an acidifying ingredient of either vinegar or lemon juice or lime juice, or both and an egg yolk containing ingredient.” “Just Mayo” does not contain that ingredient. By calling its vegan sandwich spread “Just Mayo,” Hampton Creek falsely communicates to consumers that its product is mayonnaise, the complaint charges.

The product name is highlighted on the label, which also features a giant image of an egg. Hampton Creek has explicitly referred to “Just Mayo” as mayo and mayonnaise in its advertising. The product packaging prominently features the name “Just Mayo.” The company’s website has touted that “Just Mayo is an outrageously delicious mayonnaise,” the complaint alleged.

According to the complaint, the “Just Mayo” name is part of a larger campaign and pattern of unfair competition by Hampton Creek to falsely promote its product as tasting better than and being superior to Best Foods and Hellman’s mayonnaise. In addition to lacking the taste of real mayonnaise, “Just Mayo” does not perform like real mayonnaise when it is heated, as mayonnaise often is in common consumer uses, it was alleged. Real mayonnaise is commonly used because its blend of ingredients effectively binds together the elements of a sauce and adds flavor and texture in the heating process. On the other hand, “Just Mayo” is a vegan product that lacks the same emulsifying ingredients as real mayonnaise and, when heated, its oils separate and do not bind ingredients together.

Hampton Creek’s literally false name and unsubstantiated superiority claims have allegedly caused consumer deception and irreparable harm to Unilever and an industry that has taken care to define the product category consistent with consumer expectations. Moreover, Unilever believes that “Just Mayo” is seizing market share from Hellman’s.

The plaintiff asserts claims for false advertising in violation of the Lanham Act and the New Jersey Consumer Fraud Act. The action seeks injunctive relief, an accounting, damages, costs of suit, attorney fees, and any other just and proper relief.

The case is No. 2:14-cv-06856-WHW-CLW.

Attorneys: Michael Potenza, Bruce P. Keller, David H. Bernstein, and Jared I. Kagan (Debevoise & Plimpton LLP) for Conopco, Inc.

Companies: Conopco, Inc.; Hampton Creek, Inc.

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