To settle litigation, General Mills has agreed to ditch the phrase “100% Natural” for granola bars. Meanwhile, the maker of Tito’s Handmade Vodka is defending itself against allegations from class-action plaintiffs that its vodka is not actually “handmade.” Now the food and beverage wars have reached the condiment aisle.
Unilever sells mayonnaise under its Hellmann’s and Best Foods brands. San Francisco-based Hampton Creek makes a vegan sandwich spread called Just Mayo. Unilever’s products contains eggs. Since it is a vegan product, Just Mayo does not contain eggs.
On October 31, Unilever filed a false advertising lawsuit against Hampton Creek in the United States District Court for the District of New Jersey. In its complaint, Unilever alleges that “Hampton Creek falsely communicates to consumers that Just Mayo is mayonnaise, when it in fact, is not.” The reason: “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 advertising its vegan product as “mayo,” Unilever claims that Hampton Creek “is stealing market share from Hellman’s” in violation of section 43(a) of the Lanham Act and state unfair competition law.
Unilever asked the district court to enter a preliminary injunction that would forbid Hampton Creek from selling and marketing Just Mayo. In its motion, Unilever asserts it is likely to prevail on the merits for two separate reasons: (1) the Just Mayo label is literally false and (2) survey evidence shows the Just Mayo brand actually deceives consumers.
Unilever’s argument that Just Mayo is literally false runs as follows. The term “mayo” is synonymous with “mayonnaise.” By definition, “mayo” or “mayonnaise” contains eggs. Just Mayo does not contain eggs. Therefore, according to Unilever, Hampton Creek engages in false advertising when it markets its vegan sandwich spread as Just Mayo.
Unilever also offers evidence from a consumer survey as a second basis for a preliminary injunction. Unilever’s survey found 53.7% of consumers shown Just Mayo concluded it was mayonnaise. Unilever concludes “[t]his level of confusion is well above the minimum confusion levels required to support findings of implied falsity under the Lanham Act.”
So far, Hampton Creek is standing its ground. “We think we’re on the right side of how we build a food system that makes it easy for regular people to eat,” Hampton Creek CEO Josh Tetrick told Bloomberg Television. “We never started this damn thing to be an alternative or a substitute; we started it to be right there in the condiment aisle . . . when we do that with everyone else.”
Tetrick suggested Unilever will withdraw the lawsuit “because of the incredible amount of support from the public we have received [and] from retailers.” If Unilever refuses to back down, Tetrick said Hampton Creek will file a countersuit attacking Unilever’s advertising related to its sustainability practices.
Hampton Creek’s response to Unilever’s motion for a preliminary injunction is not due until January. Until then, the lawsuit has become grist for the late-night comedy mill. CBS’ Late Show with David Letterman lampooned the litigation with a mock advertisement for a fictitious mayonnaise plaintiff’s law firm called Cellino & Barnes. Stay tuned for who gets the last laugh in this case.