“Just Mayo” without eggs? FDA warning letter to Hampton Creek Foods

On 20th August 2015 the U.S. Food and Drug Administration published the following warning letter, after reviewing Hampton Creek Foods’ Just Mayo and Just Mayo Sriracha labels.

The FDA concludes that these products are in violation of section 403 of the Federal Food, Drug, and Cosmetic Act (the Act) [21 U.S.C. § 343] and its implementing regulations found in Title 21, Code of Federal Regulations, Part 101 (21 CFR 101). Basically, for 4 different reasons:

1-2 Health claims: the presence on the labels and on advertising materials of an unauthorised health claim (“cholesterol-free”, “Your Heart Matters. When your heart is healthy, well, we’re happy. You’ll never find cholesterol in our products.” or equivalent wordings);

3. Misbranding: products are misbranded within the meaning of section 403(a)(1) of the Act [21 U.S.C. § 343(a)(1)] 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 as described under 21 CFR 169.140. 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 as described under 21 CFR 169.140(c). 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. However, Just Mayo and Just Mayo Sriracha do not meet the definition of the standard for mayonnaise. According to the labels for these products, neither product contains eggs.

4. Non compliance with the related standard of identity: products are misbranded within the meaning of section 403(g) of the Act [21 U.S.C. § 343(g)] in that they purport to be a food for which a definition and standard of identity has been prescribed by regulation, but they fail to conform to such definition and standard. 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 (see 21 CFR 169.140). According to the standard of identity for mayonnaise, egg is a required ingredient (21 CFR 169.140(c)); however, based on the ingredient information on the labels, these products do not contain eggs. We also note that these products contain additional ingredients that are not permitted by the standard, such as modified food starch, pea protein, and beta-carotene, which may be used to impart color simulating egg yolk.

It will be extremely interesting to see how the company will react, trying to defend a really difficult position.

In October 2014 Unilever filed a lawsuit against Hampton Creek, raising more or less the same arguments. Few months later, anyway, they drop the action without any reason. Probably, they prefer to wait the enforcement action by the FDA, in light of the fact that a petition on Change.org calling on Unilever to “stop bullying sustainable food companies” gathered more than 112.000 signature in few days.

Sustainable or not (that’s completely another matter), the Hampton Creek position in my opinion is quite critical because:

  1. in US there is a standard of identity for mayonnaise and they don’t meet it;
  2. they suggest both by wording and pictorial of eggs that their products are mayonnaise;
  3. “mayo” is commonly understand all over the world as a synonym of mayonnaise and the egg is a characterizing ingredient of such a product.

Therefore, also in case you remove from the equation the standard of identity, the product could still be considered misleading.

It is interesting to stress that in EU, one of the innovation brought by the Food Information to Consumers Regulation (or “FIC”, Reg. (EU) n. 1169/2011, entered in application on 13th December 2014) considered specifically the ingredient’s substitution.

The art. 7 on Fair information practices provides that food information shall not be misleading, particularly:

“(d) by suggesting, by means of the appearance, the description or pictorial representations, the presence of a particular food or an ingredient, while in reality a component naturally present or an ingredient normally used in that food has been substituted with a different component or a different ingredient.”

Moreover, the Annex VI, point 4, establishes a positive obligation to label this kind of ingredients, with specific rules for positioning and font size:

“In the case of foods in which a component or ingredient that consumers expect to be normally used or naturally present has been substituted with a different component or ingredient, the labelling shall bear — in addition to the list of ingredients — a clear indication of the component or the ingredient that has been used for the partial or whole substitution:

(a) in close proximity to the name of the product; and

(b) using a font size which has an x-height of at least 75 % of the x-height of the name of the product and which is not smaller than the minimum font size required in Article 13(2) of this Regulation.”

Food frauds protection and prevention – Inscatech in the news and my next activities

What are we talking about?

Food fraud is the next legislative enigma for food regulators in EU, as well as in other major food systems, like the US one. I am following from the very inside the legislative work on both sides of the Atlantic Ocean (and I will be more than happy to discuss with any of you about this topic) but, despite the differences in the approach, the problems remain the same.

Due to the changing nature and variety of the phenomena, the first and biggest problem is to find a comprehensive definition. The second is to introduce effective and dissuasive sanctions, together with an enforcement system with adequate means and skills to contrast them.

In this context some certification schemes, like the BRC version 7, are introducing specific requirements for food fraud prevention. But how to manage a specific audit for food fraud prevention, how to ask the right question, as well as how to implement a vulnerability assessment plan it is hard to define in a single “standard”.

An effective food fraud prevention system cannot exist without a solid base of intelligence, without a continuous activity of horizon scanning for emerging risks and without a strong control on your supply chain.

Inscatech is the first and only company currently providing intelligence gathering boots on the ground all over the world, food fraud vulnerability assessments and control plans. Inscatech has established a solid reputation in the food industry and in the GFSI (Global Food Safety Initiative) Food Fraud Think Tank as both a pioneer and the sole provider of food fraud intelligence investigations, forensically based vulnerability assessments, supplier qualification examinations, validated supply chain mapping, and food fraud vulnerability control programs. Through its work with many of the largest food producers and retail grocery conglomerates globally, Inscatech is leading the food industry towards a harmonized and systematic approach to protecting the safety and authenticity of the global food supply.

INSCATECH in the news and my next activities

You can read more about Inscatech:

On 27th March 2015 I will be in Milan for a free presentation about the BRC 7 requirements for food frauds prevention.

On 2nd June 2015 I will be guest speaker at the Food&Beverage Law&IP conference, organised in London by IPRConnections in the exclusive location of the London Stock Exchange. Foodlawlatest.com is a media partner of the event. There will be speakers and representative from the most well recognised companies in the world, such as Unilever, Nestle, Mondelez, Scotch Whisky Association, PepsiCo, Coca Cola, Pernod Ricard, Red Bull Asia and many others.

Together with one of the most experienced person in EU regarding the fight against food fraud, John Coady, Chief Audit Manager in the Food Safety Authority of Ireland (FSAI) and member of the FSAI’s multi-agency Food Fraud Task Force, I will speak in a panel full of case study about recent food frauds events and tips about what is going on at EU level. As Vice President EU Business and Regulatory affairs at Inscatech, I will give you some hints about how to protect your business from food frauds and about the pivotal role of the intelligence in preventing those events.