False Advertising: The Lanham Act


It’s Just Mayo…Or is it?

Mayonnaise behemoth Conopco, Inc. d/b/a as Unilever, better known as Hellman’s, recently sued Hampton Creek, a small San Francisco based start-up and self-proclaimed provider of “healthier and affordable food.” Hellman’s is claiming, among other things, that Hampton Creek’s product “Just Mayo” is being falsely advertised because the product does not contain eggs and, according to Hellman’s, “consumers understand… ‘mayo’ or ‘mayonnaise’ is a product that contains eggs.” Hampton Creek does not deny that “Just Mayo” contains no eggs because it is advertised as a vegan product.

Hellman’s brought this suit under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). Section 43(a) of the Lanham Act prohibits use of a “false or misleading description of fact, or false or misleading representation of fact” when used in commercial advertising or promotion that “misrepresents the nature, characteristics, qualities, or geographic origin of…goods, services, or commercial activities.” You can find a full text of the statute here. In order to succeed on a claim under the Lanham Act, a plaintiff must prove the following elements:

  1. Defendant made false statements or fact about its own products or plaintiff’s products in its advertisement;
  2. Those advertisements actually deceived or have the tendency to deceive a substantial segment of their audience;
  3. The deception is material because it is likely to influence buying decisions
  4. Defendant caused its falsely advertised goods to enter interstate commerce; and
  5. Plaintiff has been or is likely to be injured as a result of these activities either through direct diversion or sales from plaintiff to defendant, or by injuring the goodwill its products enjoy with the buying public.

Hellman’s believes that Hampton Creek’s “false advertising” is taking from Hellman’s market share and causing “irreparable harm to [Hellman’s] and to the product category the industry has taken great care to define in a way consistent with consumer expectations.” Hellman’s is seeking not only damages, but an injunction against Hampton Creek to prohibit the company from calling its “Just Mayo” product mayonnaise or mayo.

In an interesting twist, after the suit was filed, Hellman’s began to change its own website when referring to its eggless mayonnaise products. The word “dressing” was added to a number of Hellman’s mayonnaise products that do not contain eggs. These changes came after Hampton Creel wrote to Hellman’s pointing out that it used the word “mayo” on products that do not meet the Food and Drug Administration’s definition of mayonnaise.