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Sunday, 20 August 2017

When "mayo" is not mayonnaise, yet still is mayonnnaise: All a matter of the label?


When is “mayo” not mayonnaise yet still can be called “mayo”, even when the product has no egg-based ingredient? This Kat was reminded of this question in reading recently that Hampton Creek, Inc., a much ballyhooed, unicorn-valued food tech company with a knack for attracting headlines, seems to have done it once again. In the words of the July 17th article that appeared on Bloomberg.com-- “Hampton Creek’s Entire Board Leaves Except for CEO.” Seeing this headline recalled the “mayo/mayonnaise” episode that engaged the company in 2014-2015. The tale is worth recounting as a window into how regulators deal with arguably descriptive or misdescriptive terms.

Let’s first start with the trademark aspect. As it appears on the on-line USPTO registry, the mark JUST MAYO was registered (no. 4786403) on August 4, 2015, for “vegetable-based spreads”, in class 29 and “egg-and dairy-free mayonnaise; salad dressing”, in class 30. The mark seems to have gone through examination without any descriptiveness or misdescriptiveness objection, despite that the word “mayo” is recognized as shortened form of “mayonnaise”. This Kat suspects that the fact that the word “mayo” was disclaimed in accordance with US practice (“no claim is made to the exclusive right to use ‘mayo’ apart from the mark as shown”) eased the potential problem of the word being deemed as descriptive or misdescriptive.

The Federal Drug Administration (“FDA”), the federal regulatory body that monitors packaging and labeling of food products, was of a different view, at least initially. It sent a warning letter to Hampton Creek Foods on August 12, 2015, claiming inter alia as follows: “
3. 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…. The name “Just Mayo” and an image of an egg are prominently featured on the labels for these products. The term “mayo” has long been used and understood as shorthand or slang for mayonnaise. The use of the term “mayo” in the product names and the image of an egg may be misleading to consumers because it may lead them to believe that the products are the standardized food, mayonnaise, which must contain eggs …. 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.”

“4. Your Just Mayo and Just Mayo Sriracha products are misbranded ....Specifically, these products purport to be mayonnaise by prominently featuring the word “Mayo” on the labels, which has long been used to refer to mayonnaise. Mayonnaise is a food for which a definition and standard of identity has been prescribed by regulation …. According to the standard of identity for mayonnaise, egg is a required ingredient ….”
The FDA complaint was issued several months after Unilever (in support of its HELLMAN and BEST FOODS mayonnaise brands) had filed an action against Hampton Creek, claiming that the JUST MAYO mark violated truth-in-advertising laws, resting on a 1957 FDA regulation that required mayonnaise products to contain an egg ingredient. Subsequently, however, Unilever withdrew its law suit (but later introduced a similar product). Still, the FDA went ahead with the filing of its August 12, 2015 complaint.

The TRULY MAYO brand seemed to have a real problem, whether or not it had been registered as a trademark. After all, one thought that “mayo”, or “mayonnaise” had to be egg-based. Au contraire—on December 17, 2015, following meetings between the agency and the company, the FDA reversed course and issued a statement, whereby the issues so forcefully raised in its warning letter were deemed to have been “resolved”. In practice, as reported (here, here and here) that meant that Hampton Creek was permitted to maintain the brand name and logo, subject to various changes to the product packaging.

These changes included using a larger font size to indicate product attributes, such as “egg-free”, adding the words “Spread &* Dressing” (suggesting that the FDA was not comfortable with simply redefining the term mayonnaise to include various new ingredients), and making smaller the visual image of an egg with a pea shoot inside. As well, the label would define the word “just” to mean "guided by reason, justice and fairness”, rather than to suggest that the product was “just” another form of mayonnaise.

This Kat does remain a bit puzzled about all of this. What exactly is the problem being resolved here? What is meant by “mayo” and “mayonnaise”; what exactly is “egg-free” mayonnaise? At the consumer level, on what basis did the FDA have reason to believe that these changes to the labeling would resolve the regulatory issues regarding the name “just mayo” (the definition of the word “just” as a prophylactic measure seems particularly problematic to this Kat).

6 comments:

Anonymous said...

You might want to correct the typo in the title...

Not even a gourmet said...

An egg-free mayonnaise is a contradiction in itself and should never have been accepted, whether it is written with three n'a or not. In the latter case it is at least descriptive.
The lobbying of the company must ave been very strong and good for the FDA to have decided that it may be acceptable provided it is specified it is egg-free.
I take bet that there is a patent on egg-free mayo, as there is a patent on corn reared chicken without corn!

Anonymous said...

On the other hand, they are not selling egg-free mayonnaise but egg-free mayo. When you want to protect the meaning of "mayonnaise" and restrict it to certain food products, then in my opinion this can only cover the precise word. For example, what comes to my mind first when I hear mayo is not mayonnaise but "Mayo Clinic".

The Cat That Walks by Himself said...

RE: An egg-free mayonnaise is a contradiction in itself and should never have been accepted

Nowadays, I guess, the taste can be very well imitated with help of different ingredients, so I don't know how important real eggs are. Besides, some people might be allergic to eggs but still want to eat mayonnaise.

Usually, products which want to emphasise their 'eggness' place a picture of eggs on the packaging, for example, in spaghetti, often.

If the importance of traditional recipes is overstretched, it will make unreasonably difficult for innovative products to enter the market. Why should new products be labelled 'without' if they are very much 'with'?

Not even a gourmet said...

Mayo might mean prima facie Mayo clinic for an American, but certainly not for a European. It is the standard when kids or adults want French fries, they generally add "with ketchup" (US origin) or "with mayo" (E origin). And not just in France!

I would never have thought that the divide between the US and Europe went as far, but now with the present POTUS, it seems possible and even justified, at least in the eyes of the later......

Anonymous said...

Lost in the condiments, is there a legal point that is being smeared here?

To wit, the US practice of disclaiming?

What is left of "Just Mayo" if "Mayo" is being disclaimed, and why is the mark not then just "Just"...?

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