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Bruce P. Keller (bpkeller@debevoise.com)

David H. Bernstein (dhbernstein@debevoise.com)*
Michael Potenza (mpotenza@debevoise.com)
Jared I. Kagan (jikagan@debevoise.com)*
DEBEVOISE & PLIMPTON LLP
919 Third Avenue
New York, New York 10022
(212) 909-6000
Attorneys for Conopco, Inc.
*admitted pro hac vice
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
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CONOPCO, INC., doing business as UNILEVER,
:
:
Plaintiff,
:
:
-against: 14 Civ. 06856 (WHW)(CLW)
:
DECLARATION OF
HAMPTON CREEK, INC.,
:
RYU YOKOI
:
Defendant.
:
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I, Ryu Yokoi, declare as follows:
1.

I am Brand Development Director at Conopco, Inc., which does business

as Unilever (Unilever). I am responsible for overseeing brand strategy, innovation and

development of, among other products, the Best Foods and Hellmanns brands of
mayonnaise.
2.

I submit this declaration in support of Unilevers motion for a preliminary

injunction against Hampton Creek, Inc. (Hampton Creek,) to prohibit it from falsely
advertising and distributing its plant-based, vegan alternative to real mayonnaise under

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the name Just Mayo. This declaration is based on my personal knowledge, my review of
business records over which I have control or to which I have regular access in my
employment, and my review of publicly available documents. If called as a witness, I
could and would testify competently as to all of the facts contained herein.
THE HELLMANS AND BEST FOODS
BRANDS OF REAL MAYONNAISE.
3.

In 1905, Richard Hellmann, an immigrant from Germany, began using his

family recipe for mayonnaise in salads in his delicatessen on the Upper West Side of
Manhattan. His mayonnaise proved so popular that he began selling it packaged in
wooden boats, that otherwise were used to weigh butter. To differentiate varieties, he
put a blue ribbon on one of the wooden boats. The blue ribbon variety became
enormously popular and Hellmann soon devoted his entire business to jarring and selling
Hellmanns mayonnaise.
4.

At about the same time, in California, a company called Best Foods

introduced an equally popular mayonnaise product. In 1932, Best Foods acquired

Hellmanns and decided to keep both brands. For over a century, Best Foods
mayonnaise has been the most popular brand of mayonnaise west of the Rocky
Mountains, and Hellmanns has been the most popular brand east of the Rockies.
THE MAYONNAISE PRODUCT CATEGORY.
5.

The Food and Drug Administration (FDA) has issued regulations that

govern use of the term mayonnaise. Among other requirements, the FDAs standard
of identity specifies the key ingredients that a product must contain to qualify as

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mayonnaise: egg yolks, vegetable oil and an acidifying ingredient (vinegar, lemon
juice or lime juice). This standard of identity for mayonnaise was developed in
response to prior efforts to pass off as mayonnaise products that were diluted or did not
contain the ingredients necessary to qualify as real mayonnaise.
6.

For nearly 80 years, Hellmanns and Best Foods have supported the

mayonnaise category by investing in advertising that elevates quality perception by

communicating its ingredients, specifically eggs. Hellmanns and Best Foods
advertising campaigns have stressed the importance of the key constituent ingredients of
mayonnaise by emphasizing that Hellmanns and Best Foods are made with real,
simple ingredients eggs, oil and vinegar. Examples of these advertisements are
attached as Exhibit A.
7.

Unilevers mayonnaise advertising also emphasizes that real mayonnaise

can be used, not only as a spread on sandwiches, but in cooking as well. Examples of
advertisements showing how mayonnaise can be used in cooking are attached as Exhibit
B and Exhibit C.
8.

Consumers expect real mayonnaise to contain egg, oil and vinegar (or

lemon juice), as reflected in the common dictionary definition of mayonnaise as a

dressing made chiefly of egg yolks, vegetable oils, and vinegar or lemon juice. Merriam
Webster Online Dictionary, available at http://www.merriam-webster.com/ (emphasis
added). Similarly, the American Heritage College Dictionary (3d ed. 1993) defines
mayonnaise as [a] dressing made of beaten raw egg yolk, oil, lemon juice or vinegar,
and seasonings, (emphasis added), Merriam-Websters Collegiate Dictionary (11th ed.

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2004) defines mayonnaise as a dressing made of egg yolks, vegetable oils, and vinegar
or lemon juice. (emphasis added), and dictionary.com defines mayonnaise as a thick
dressing of egg yolks, vinegar or lemon juice, oil, and seasonings, used for salads,
sandwiches, vegetable dishes, etc. Available at http://dictionary.reference.com
(emphasis added).
FALSE LABELING AND ADVERTISING OF JUST MAYO
9.

Hampton Creek produces a variety of

sandwich spreads that it packages and sells under the name

Just Mayo. The Just Mayo packaging prominently features
the name Just Mayo with the word Just appearing in small
cursive writing above the significantly larger word Mayo
in block letters. The name appears below an image of a
large egg on a brown label that is wrapped around a
transparent container such that the sandwich spread inside is
visible. The labeling is depicted to the right above, and in
Exhibit D.
10.

Just Mayo, however, is not mayonnaise. It

does not contain any egg ingredients. As shown at right and

in Exhibit E, the Just Mayo packaging lists the ingredients
as: Non-GMO Expeller Pressed Canola Oil, Filtered Water, Lemon Juice, White
Vinegar, 2% or less of the following: Organic Sugar, Salt, Pea Protein, Spices, Modified

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Food Starch, Beta-Carotene. In some recent versions of the product, a preservative

called calcium disodium EDTA, is added to render the product shelf-stable.
11.

Although Just Mayo includes a disclaimer on the label that it is egg free,

that disclaimer is small and, in any event, I think it is confusing because it contradicts the
name of the product, which claims to be a mayo, and it is inconsistent with the large
image of the egg.
12.

Hampton Creek also sells flavored sandwich

spreads that include the name Just Mayo with a term describing
added flavors, including Just Mayo Chipotle, Just Mayo Garlic,
and Just Mayo Sriracha. The labeling for these flavored Just
Mayo sandwich spreads (an example of which is shown at right;
all three labels are shown in Exhibit F) is nearly identical to the
labeling for the unflavored Just Mayo sandwich spread, except
the name of the flavor appears below the words Just Mayo.
Another difference is that the egg free disclaimer is included only on the back label,
again in very small letters. As with unflavored Just Mayo, none of the flavored Just
Mayo spreads contain any egg ingredients, despite the prominent image of the egg on the
label.
13.

Compounding the problem, and demonstrating what its intent has been

from the start, Hampton Creek has explicitly referred to Just Mayo as mayo and
mayonnaise in advertisements:

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As shown below and in Exhibit G, on its website, Hampton Creek has

stated: Just Mayo is an outrageously delicious mayonnaise (emphasis
added).

Recently, Hampton Creek deleted the word mayonnaise from this

webpage, in an apparent acknowledgement that its product is not really
mayonnaise (also attached in Exhibit G):

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As shown below and in Exhibit H, on its website, Hampton Creek is

currently stating that Just Mayo is [c]reamy rich mayo for any sandwich,
anytime (emphasis added).

On its Facebook page (see Exhibit I), Hampton Creek states that it is the
#1 selling mayo at Whole Foods Market! (emphasis added).

14.

Mayo of course means the same thing as mayonnaise and is understood

that way by consumers. The Merriam Webster Online dictionary defines mayo simply
as mayonnaise, as does the American Heritage College Dictionary (3d ed. 1993), and
Merriam-Websters Collegiate Dictionary (11th ed. 2004). In common usage, mayo

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often is used as a synonym for mayonnaise. In the New York Times, for example, food
writer Melissa Clark repeatedly uses mayo and mayonnaise interchangeably. See
Exhibit J (Melissa Clark, Mayonnaise: Oil, Egg and a Drop of Magic, New York
Times (May 22, 2012)). Exhibit K contains additional articles and popular references
equating mayo and mayonnaise.
15.

Hampton Creeks conduct is particularly deceptive because Just Mayo

does not perform like real mayonnaise. Real mayonnaise is used by home and
professional chefs alike as an essential ingredient in many recipes, including as an
ingredient that adds flavor to and binds together the ingredients in heated recipes.
Indeed, on the Hellmanns website (at http://www.hellmanns.com/recipes), Unilever
promotes such signature recipes as Parmesan Crusted Chicken and Turkey Casserole.
See Exhibit L. Because Just Mayo lacks the ingredients of a real mayonnaise, it can
separate into constituent parts when it is heated, and thus fails to bind the ingredients, in
some of the recipes that call for using mayonnaise. For example, mayonnaise is an
ingredient in one of the signature recipes for Hellmanns mayonnaise parmesan
crusted chicken. The mayonnaise keeps the chicken moist and coats the chicken so that
cheese can melt on top and the bread crumbs can stick to it. I have seen test kitchen
experiments with Just Mayo used instead of mayonnaise, and it broke down with the oil
flowing off of the chicken; so the product did not act as a coating for the chicken.
Similarly, mayonnaise is often used as an ingredient in warm dips. In a similar test
kitchen experiment with Just Mayo used instead of mayonnaise, the dip separated and
resulted in a watery, rather than creamy, consistency.

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16.

By calling itself mayo and failing to perform like mayonnaise, Just

Mayo deceives consumers and damages the entire product category, which, as discussed
above, has strived to protect a consistent definition of mayonnaise that fits with
consumer expectations.
17.

At Unilever, we have seen first hand that Just Mayo is causing consumer

deception. In a recent focus group conducted by Unilever, consumers who were shown a
jar of Just Mayo mistakenly believed that it was real, egg-containing mayonnaise until
they carefully scrutinized the label and discovered that it does not contain eggs. After
making that discovery, one of the consumers stated: Its not Just Mayo, its a lie.
18.

Hampton Creek appears to be aware of this confusion, and that most

consumers do not realize that Just Mayo is not mayonnaise like the other mayonnaise
products on the shelf. In a video interview that was posted to YouTube on November 4,
2014, Hampton Creeks CEO, Josh Tetrick, stated that most consumers do not know
that, when they buy Just Mayo, they are getting a product that is different than real
mayonnaise. The interview is included on the attached DVD as Exhibit M. The passage
at issue is about four and a half minutes into the video; the actual exchange is as follows:
Question: So, um, do I, the consumer, know what Im buying when I buy [Just
Mayo], that its different than the other mayonnaise on the shelf?
Answer: Most dont. So, were also in Whole Foods. So were the number one
selling mayo in Whole Foods.. But to the mom, to the 37-year old single
mom, whose, you know, shopping in her Bentonville Walmart store, and
shes rolling down aisle 7, she might not know. She just buys it because
its affordable and her friends told her that it tasted pretty good. And, as a
side note, shes looking for things that are better for her kids.
(emphasis added)

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19.

Later in the same interview, Mr. Tetrick provided further insight on

Hampton Creeks intention to pass off Just Mayo as real mayonnaise, rather than a vegan
mayonnaise substitute, when he described his companys business strategy. He explained
that Hampton Creek wants to avoid having Just Mayo be seen as a mayonnaise
substitute: Focusing on substitute and focusing on alternatives is a recipe for loserdom
for us. Its a recipe for being a niche company. Its a recipe for lots of folks who are in
the natural world to sort of give us a big round of applause and a recipe for someone in
Birmingham Alabama to ignore us completely. And thats something we dont want. So,
were trying to focus more on not the alternative, but the only thing. The passage at
issue starts at about the ten minute mark into this video.
20.

In a another recent interview, this time with Stuart Varney of Fox

Business News, Mr. Tetrick was asked directly why Hampton Creek avoids truthfully
calling its product vegan. Mr. Tetrick explained that calling the product vegan
would not be too effective because Hampton Creek is all about making the thing
accessible. The interview is included on the attached DVD as Exhibit N; the passages at
issue start at about 2 minutes into the video.
21.

Consumers deceived into believing Just Mayo is real mayonnaise and who

are subsequently disappointed by its taste or failure to perform adequately could falsely
believe those sub-standard characteristics are common to mayonnaise generally,
including Unilevers Best Foods and Hellmanns brands. That is precisely the type of
unquantifiable harm to Unilevers brand that both the federal standards of identity, as

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well as the multiple millions of dollars in advertising Unilever invests educating

consumers about real mayonnaise, is intended to avoid.
UNILEVERS EFFORTS TO RESOLVE THE DISPUTE.
22.

Unilever has given Hampton Creek ample notice of its complaints

regarding the Just Mayo name, packaging and advertising.

23.

In March 2014, shortly after it first learned about Just Mayo, Unilever

contacted Hampton Creek to demand that Hampton Creek correct its false and misleading
labeling and advertising for Just Mayo. The primary concern that Unilever expressed
was Hampton Creeks deceptive use of the name Just Mayo.
24.

Since then, the parties have exchanged a number of letters the most

recent of which were dated October 31, 2014 from Unilever and November 4, 2014 from
Hampton Creek. Through these letters and the parties discussions, Unilever has
continued to explain its concerns regarding the name Just Mayo (and, in its October 31
letter, it expressly warned Hampton Creek that Unilever would seek a preliminary
injunction if Hampton Creek persisted in its use of the deceptive Just Mayo name).
Despite Unilevers efforts to convince Hampton Creek to correct its false and misleading
labeling and advertising, and to discontinue use of the literally false name Just Mayo,
Hampton Creek refused to do so.
25.

Developments since March 2014 have exacerbated the harm to Unilever in

ways that make a swift resolution of this dispute more urgent. When Just Mayo initially
was introduced in September 2013, it was sold in specialty markets, like Whole Foods,
that do not carry any of Unilevers brands. It also had a limited test in Costco wholesale

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clubs, but we had limited access to information about the test sales because we do not
have access to tracking data on Costco sales. Moreover, because the Just Mayo product
sold at Whole Foods lacked a preservative and therefore was not shelf stable, it was
stocked in those stores in the refrigerated foods section, often next to other imitation
mayonnaise products such as Vegenaise, rather than in the aisle with real mayonnaise.
26.

In April 2014, stores like Safeway began carrying Just Mayo in a

shelf-stable version that competes, at least in some of those stores, with Best Foods and
Hellmanns for shelf space. Several months later, Unilever learned that Just Mayo
would be carried by Walmart nationally in a shelf-stable version, directly competing with
Best Foods and Hellmanns mayonnaise for shelf space.
27.

Because Just Mayo is the name of Hampton Creeks product, there is no

doubt that consumers are exposed to this falsehood at the point of purchase. Although
advertising, including false advertising, impacts consumer decision-making, the effect of
the advertising itself is enormously difficult to quantify because so many other factors
impact consumer purchases.
28.

Just Mayo is already having an impact on sales of Best Foods and

Hellmanns mayonnaise. Data obtained from a leading supermarket chain, for

example, shows that more than half of Just Mayo purchasers who had previously
purchased real mayonnaise had switched from Best Foods and Hellmanns brands.
(The actual data is highly confidential and, under Unilevers agreement with the
supermarket chain at issue, can only be shared on a confidential basis, under seal.
Unilever will work with Hampton Creek to submit a proposed protective order to the

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