Vegan mayonnaise, by definition, does not contain mayonnaise and thus, according to the FDA cannot be marketed as mayonnaise at all.  On August 12, 2015, the FDA issued a Warning Letter indicating that a health food company’s vegan products “Just Mayo” and “Just Mayo Sriracha” cannot be marketed as mayonnaise. An FDA Warning Letter is an informal advisory correspondence that notifies an FDA-regulated company that the FDA considers one or more products, practices, processes, or other activities to be in violation of the Federal Food, Drug, and Cosmetic Act (the Act), its implementing regulations and other federal statutes. They are intended to stimulate voluntary corrective action by the company cited and to establish a precedent of prior warnings should the FDA need to take further regulatory action. Although not binding law, monitoring FDA Warning Letters and the violations they cite is one of the best ways FDA-regulated companies can understand the FDA’s current enforcement priorities and expectations and comply with the law.

While FDA Warning Letters frequently cite companies for misbranding products, failing to follow mandatory FDA requirements (“standards of identity”) which determine what a food product must contain to be marketed under a certain name, the FDA’s recent letter to Hampton Creek Foods, Inc. (Hampton Creek) signals a new twist. According to letter, Hampton Creek is misbranding its products “Just Mayo” and “Just Mayo Sriracha,” purporting them to be the standardized food “mayonnaise,” but failing to meet the standard of identity for mayonnaise established by FDA regulations for standardized food products. According to the letter, the products’ misleading names and the image of an egg prominently featured on the labels suggest that the products are the standardized food mayonnaise. 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, according to the FDA, “Just Mayo” and “Just Mayo Sriracha” do not qualify as the standardized food mayonnaise because, according to their labels, they do not contain eggs. 21 C.F.R. 169.140, the standard of identity for mayonnaise, states in relevant part:

(a) Description. Mayonnaise is the emulsified semisolid food prepared from vegetable oil(s) . . . acidifying ingredients . . . and one or more of the egg yolk-containing ingredients specified in paragraph (c) of this section.

(c) Egg yolk-containing ingredients. Liquid egg yolks, frozen egg yolks, dried egg yolks . . .

In addition, the products contain additional ingredients that are not permitted by the standard of identity for mayonnaise, such as modified food starch, beat-carotene, and pea-protein.

While the FDA has consistently maintained interest in standard of identity issues, its recent Warning Letter to Hampton Creek signals a new interest in standard of identity issues as they relate to vegan and plant-based alternatives. Stay tuned for more information regarding FDA Warning Letters and what they’re signaling about the FDA’s current priorities and expectations, particularly as companies like Hampton Creek test the boundaries.