August 26, 2015
“Your Heart Matters. When your heart is healthy, well, we’re happy. You’ll never find cholesterol in our products."
The above statement, and an adjacent heart-shaped symbol on the website of Hampton Creek Foods, Inc., recently attracted the interest of federal regulators and are a reminder of the limitations of implied health claims.
In a warning letter sent last month to Hampton Creek CEO Joshua Tetrick and posted online Tuesday, the U.S. Food and Drug Administration (FDA) cautioned, “Together these statements and heart symbol are an implied health claim that these products can reduce the risk of heart disease due to the absence of cholesterol."
The problem is that Hampton Creek’s Just Mayo and Just Mayo Sriracha products don’t qualify for the health claim because the products contain more fat than is permitted, according to William Correll, Jr., director of the Office of Compliance’s Center for Food Safety and Applied Nutrition.
And although the products purport to be mayonnaise, they are misbranded because they don’t contain eggs and include other ingredients that are not allowed for the standard of identity governing mayonnaise, Correll noted in the Aug. 12 letter.
San Francisco-based Hampton Creek may have seen this letter coming. Last year, Unilever—the parent company of Hellmann's mayonnaise—accused Hampton Creek of false advertising because Just Mayo doesn’t contain eggs.
Tetrick, the founder of Hampton Creek, told The Wall Street Journal at the time that he wasn’t surprised that his company had been sued. Unilever later dropped the lawsuit.
“This is big business," Tetrick said in an interview with the newspaper. “We’re competing directly with a company that hasn’t had real competition in decades. These things happen."
For food companies that are relatively new on the scene, the recent warning letter is a stern reminder that FDA regulations govern the types of claims that can be made and under what circumstances. Food and beverage companies that advertise the benefits of their products also must avoid the wrath of the Federal Trade Commission, as POM Wonderful was reminded by the agency a few years ago.
In the letter to Hampton Creek, Correll also noted the company includes a “cholesterol free" claim on the regular Just Mayo product label and a statement on its website, “You’ll never find cholesterol in our products." The products are misbranded because they don’t meet the regulatory requirements to make the so-called nutrient content claims, according to the letter.
In order to make the claims, the company needed to “include a statement that discloses the level of total fat in a serving of the product in immediate proximity to the cholesterol claims," Correll explained. He said Hampton Creek failed to make the disclosure.
In an interview with The New York Times, Tetrick said he spoke Tuesday with an FDA official about the letter.
“It was a good conversation, and we’re going to write an honest, thoughtful letter back to them, as they suggested," he said. “Apparently, there are often gray areas when it comes to these things, and they sounded very open to digging into this with us."
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