In 1979, food technologists at J.H. Filbert developed a new vegetable oil-based spread. It looked, tasted, and felt like butter, but it contained no dairy and was not butter. What should they call it? As the story goes, a secretary tried the product and exclaimed: “I can’t believe it’s not butter!” The rest, as they say, is history.
About 35 years later, food technologists helped Hampton Creek develop a new product that contains no eggs but looks, tastes, and feels like mayonnaise. The problem: A food product is “misbranded,” and therefore not legal to sell, if it purports to be a food for which a standard of identity has been prescribed but fails to conform to such standard. The U.S. Food and Drug Administration (FDA) has established a standard of identity for “mayonnaise” that requires the product to contain egg. Therefore, like the Filbert folks, Hampton Creek had to decide what to name this new product.
The company named the product “Just MAYO.” While, the front label does state “egg free,” it also depicts a large egg (albeit with a small plant appearing to grow in it).
On August 12, 2015, the FDA issued a Warning Letter to the company in part because it determined that the Just Mayo products are misbranded since they do not have eggs but “purport to be mayonnaise by prominently featuring the word ‘Mayo’ on the labels, which has long been used to refer to mayonnaise,” and by the image of the egg.
Hampton Creek now has an opportunity to address the FDA’s concerns in a bid to keep the product name. In order to succeed it will need to convince the FDA that the product does not purport to be mayonnaise. It can argue based on the current label, or it can propose modifications. Change “Just” to “Not”? Add “not” at the end (“Just MAYO – NOT”)? Change the spelling of Mayo (“Mae-Oh”)? Add some question marks (“Just MAYO????”)? Remove the image of the egg? Make the egg appear to grow from the tree? Of course it can also argue that consumers do not think “mayo” is the same is “mayonnaise.”
Whatever the outcome, a key takeaway for food marketers is that advances in food technology, and changing consumer demands, will continue to drive the creation of novel food products that are almost indistinguishable from traditional foods. While that is great, when naming and otherwise promoting the product, care must be taken not to state or imply that it is standardized food unless it meets the standard. Even if there is no standardized food, claiming or implying similarities to other foods could also subject a company to lawsuits by consumers or competitors if it is somehow misleading.
I haven’t yet had a chance to try Just Mayo. I wonder if that Filbert’s secretary is still around.
Ivan Wasserman is the Administrative Partner of the Washington DC office of Manatt, Phelps & Phillips, LLP focusing on the regulation of health and wellness products, including dietary supplements, foods, and cosmetics. In addition to federal and state agencies, his practice includes representing clients in proceedings before the National Advertising Division (NAD) of the Council of Better Business Bureaus (CBBB).