By Ricardo Carvajal –
FDA issued a warning letter to Hampton Creek alleging that its Just Mayo products are misbranded, in part because they purport to be a food governed by a standard of identity – namely, mayonnaise – that the products fail to meet. This alleged violation was at the heart of a lawsuit filed against Hampton Creek last year by Unilever, which Unilever subsequently dropped so that Hampton Creek could “address its label directly with industry groups and appropriate regulatory authorities” (see Unilever’s press release here). To the extent any such efforts were undertaken by Hampton Creek, they appear to have been unsuccessful in warding off FDA’s warning letter. The focus now shifts to whether the company can devise a way to resolve FDA’s concerns without having to make changes so extensive as to adversely affect the brand’s early success.
In addition to expressing concerns with the product names and logo, FDA found that the labels include unauthorized use of nutrient content and health claims. These alleged violations, coupled with the alleged violation of the standard of identity, can be expected to serve as grist for the plaintiffs’ bar. The take-away for start-ups is fairly straightforward: in a highly regulated sector such as food, success will quickly draw attention to regulatory non-compliance, and good intentions can’t be counted on to keep the hounds at bay.