A Strong False-Advertising Lawsuit? Not Eggsactly

A Strong False-Advertising Lawsuit? Not Eggsactly

Like many this week, you may be consuming turkey sandwiches, turkey soup and more. If you’re spreading mayo on that sandwich, a false advertising lawsuit whipped up by Unilever may be of interest. The maker of Hellmann’s Mayonnaise has brought suit against competitor Hampton Creek Foods and its egg-less mayo.

According to attorney Jonathan Pollard, the absence of eggs is central to the New Jersey case of Conopco Inc. d/b/a Unilever v. Hampton Creek Inc. Under federal law, mayonnaise’s ingredients include vegetable oil, an acidifying ingredient like vinegar and a form of eggs. Unilever contends that because Just Mayo does not contain eggs, Hampton Creek’s advertising is deceptive and misleading, and its product violates the federal Lanham Act and New Jersey state consumer protection laws.

Pollard, who has litigated a number of cases under the Lanham Act, asserts that this is hardly an open-and-shut case, as the federal definition of mayonnaise is not dispositive.

“Unilever’s case involves some improper conflation of two separate worlds: government regulation and private litigation. Take government regulation: The question of whether or not Hampton Creek’s labeling of Just Mayo violates any applicable FDA regulations is not at issue. There is no private right of action for a violation of FDA regulations. And on that point, I’d note that federal law does not define ‘mayo’ as opposed to ‘mayonnaise.

“Rather, the claims at issue are false advertising claims. Under either federal or state law, Unilever will have to establish (1) that Hampton Creek’s statements — its advertising; its labeling — are literally false or (2) that Hampton Creek’s statements are likely to mislead, confuse or deceive consumers.”

In Pollard’s opinion, after listing how Just Mayo is marketed as an egg-free, plant-based product, Unilever will not be able to prevail “through a showing of literal falsity.” The case may depend, instead, on “evidence of actual consumer confusion,” which will result in a “battle of consumer surveys and experts.” Pollard predicts that, ultimately, Unilever’s case will crack, and Hampton Creek will be victorious. What do you think?

For another false advertising case, check out our post on the Tito’s handmade vodka case.


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