hellmann's v just mayo -- preliminary injunction motion 11-07-2014

8/10/2019 Hellmann's v Just Mayo -- Preliminary Injunction Motion 11-07-2014

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Bruce P. Keller ([email protected])David H. Bernstein ([email protected])*Michael Potenza ([email protected])

Jared I. Kagan ([email protected])*DEBEVOISE & PLIMPTON LLP919 Third AvenueNew York, New York 10022(212) 909-6000

Attorneys for Conopco, Inc.*admitted pro hac vice

UNITED STATES DISTRICT COURTDISTRICT OF NEW JERSEY

----------------------------------------------------------------------- xCONOPCO, INC., doing business as UNILEVER,

Plaintiff,

-against-

HAMPTON CREEK, INC.,

Defendant.

:::::::::

14 Civ. 06856 (WHW)(CLW)ECF CASE

NOTICE OF MOTION FOR

PRELIMINARY

INJUNCTION

----------------------------------------------------------------------- x

PLEASE TAKE NOTICE that, on December 1, 2014 at 10:00 oclock in the

forenoon, or as soon thereafter as counsel may be heard, plaintiff Conopco, Inc., doing

business as Unilever, shall move before the Honorable William H. Walls, U.S.D.J. at the

Martin Luther King Building and U.S. Courthouse, 50 Walnut Street, Newark, New

Jersey 07101 for a preliminary injunction pursuant to Fed. R. Civ. P. 65. This motion is

filed in accordance with Local Civil Rule 7.1(b).

Case 2:14-cv-06856-WHW-CLW Document 10 Filed 11/07/14 Page 1 of 2 PageID: 67


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2

PLEASE TAKE FURTHER NOTICE that plaintiff shall rely upon the papers and

pleadings on file in this Court, the complaint, the memorandum of law, and the

supporting declarations and exhibits submitted herewith.

Plaintiff requests oral argument. A proposed form of Order is enclosed.

Dated: New York, New YorkNovember 7, 2014

DEBEVOISE & PLIMPTON LLP

By: /s/ Michael PotenzaBruce P. Keller ([email protected])David H. Bernstein ([email protected])*Michael Potenza ([email protected])Jared I. Kagan ([email protected])*

919 Third AvenueNew York, New York 10022(212) 909-6000

Attorneys for Plaintiff Conopco, Inc. dba Unilever

*admitted pro hac vice

TO: Peter D. VoglOrrick, Herrington & Sutcliffe LLP51 West 52nd StreetNew York, New York 10019

Attorneys for Defendant Hampton Creek, Inc.

Case 2:14-cv-06856-WHW-CLW Document 10 Filed 11/07/14 Page 2 of 2 PageID: 68


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Plaintiff,

-against-


Defendant.

::::::::::

14 Civ. 06856 (WHW)(CLW)

ECF CASE

Motion Day: December 1, 2014

----------------------------------------------------------------------- x

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS

MOTION FOR A PRELIMINARY INJUNCTION

Bruce P. Keller ([email protected])David H. Bernstein ([email protected])*Michael Potenza ([email protected])Jared I. Kagan ([email protected])*

DEBEVOISE & PLIMPTON LLP919 Third AvenueNew York, New York 10022(212) 909-6696 (telephone)(212) 521-7696 (facsimile)

Attorneys for Plaintiff Conopco, Inc., doingbusiness as Unilever* admitted pro hac vice


Case 2:14-cv-06856-WHW-CLW Document 10-23 Filed 11/07/14 Page 1 of 28 PageID: 198


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i

TABLE OF CONTENTS

Page

Table of Authorities ............................................................................................................. i

PRELIMINARY STATEMENT ........................................................................................ 1

STATEMENT OF FACTS ................................................................................................. 3

I. The Hellmanns and Best Foods Brands of Real Mayonnaise. ........................ 3

II. The Mayonnaise Product Category......................................................................... 4

III. False Labeling and Advertising ofJust Mayo........................................................ 5

IV. Harm to Unilever and Unilevers Efforts to Resolve the Dispute ........................ 10

ARGUMENT.................................................................................................................... 12

I. The Standard for Relief......................................................................................... 12

II. Unilever Is Likely to Succeed on the Merits of its False AdvertisingClaim..................................................................................................................... 12

A. TheJust MayoName is Literally False .................................................... 13B. Survey Evidence Demonstrates That The NameJust MayoIs

Misleading................................................................................................. 14

III. Unilever Will Suffer Irreparable Harm in the Absence of a PreliminaryInjunction. ............................................................................................................. 18

IV. The Balance of Equities Favors an Injunction...................................................... 20

V. The Public Interest Favors an Injunction.............................................................. 21

VI. Unilever Also Is Entitled to Preliminary Relief Under the New JerseyConsumer Fraud Act............................................................................................. 22

CONCLUSION................................................................................................................. 23



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i

TABLE OF AUTHORITIES

CASES

Am. Home Prods. Corp. v. Johnson & Johnson,654 F. Supp. 568 (S.D.N.Y. 1987) ..........................................................................................14

AT&T Co. v. Winback and Conserve Program Inc.,42 F.3d 1421 (3d Cir. 1994).....................................................................................................22

Bracco Diagnostics, Inc. v. Amersham Health, Inc.,627 F. Supp. 2d 384 (D.N.J. 2009)....................................................................................14, 18

Channel Cos. v. Britton,

167 N.J. Super. 417, 400 A.2d 1221 (App. Div. 1979) ...........................................................22

Church & Dwight Co. v. S.C. Johnson & Son,Inc.,873 F. Supp. 893 (D.N.J. 1994) .........................................................................................16, 20

Coach, Inc. v. Paulas Store Sportswear LLC,Civil Action No. 133263 (SRC), 2014 WL 347893 (D.N.J. Jan. 31, 2014) ..........................23

Contl Wax Corp. v. Fed. Trade Commn,330 F.2d 475 (2d Cir. 1964).....................................................................................................14

Feiler v. New Jersey Dental Assn,467 A.2d 276 (N.J. Super. Ct. Ch. Div. 1983).........................................................................22

Ferring Pharm., Inc. v. Watson Pharm., Inc.,765 F.3d 205 (3d Cir. 2014).....................................................................................................12

GlaxoSmithKline Consumer Healthcare v. Merix Pharm. Corp.

No. Civ. 05-898(DRD), 2005 WL 2230318 (D.N.J. Sept. 13, 2005) ......................................21

Goya Foods, Inc. v. Condal Distribs., Inc.,732 F. Supp. 453 (S.D.N.Y. 1990) ..........................................................................................16

Johnson & Johnson v. GAC Intl, Inc.,862 F.2d 975 (2d Cir. 1988).....................................................................................................14

Kraft Gen. Foods, Inc. v. Del Monte Corp.,28 U.S.P.Q.2d 1457 (S.D.N.Y. 1993)......................................................................................14



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McNeilab, Inc. v. Am. Home Prods. Corp.,501 F. Supp. 517 (S.D.N.Y. 1980) ..........................................................................................16

Merck Eprova AG v. Gnosis S.P.A.,760 F.3d 247 (2d Cir. 2014).....................................................................................................14

Novartis Consumer Health, Inc. v. Johnson & Johnson-Merck

Consumer Pharm. Co.,290 F.3d 578 (3d Cir. 2002).............................................................................................passim

Opticians Assn of Am. v. Indep. Opticians of Am.,920 F.2d 187 (3d Cir. 1990)...............................................................................................20, 21

Pappan Enters., Inc. v. Hardees Food Sys., Inc.,

143 F.3d 800 (3d Cir. 1998).....................................................................................................21

Reckitt Benckiser Inc. v. Motomco Ltd.,760 F. Supp. 2d 446 (S.D.N.Y. 2011)......................................................................................19

Smithkline Beecham Consumer Healthcare, L.P. v. Johnson & Johnson-Merck

Consumer Pharm. Co.,906 F. Supp. 178 (S.D.N.Y. 1995),affd, 100 F.3d 943 (2d Cir. 1996)..................................14

Value Group, Inc. v. Mendham Lake Est., L.P.,800 F. Supp. 1228 (D.N.J. 1992).............................................................................................21

Warner-Lambert Co. v. Breathasure, Inc.,204 F.3d 87 (3d Cir. 2000).............................................................................................2, 12, 13

WPIX, Inc. v. ivi, Inc.,765 F. Supp. 2d 594 (S.D.N.Y. 2011),affd,691 F.3d 275 (2d Cir. 2012).............................19

STATUTES

15 U.S.C. 1125(a) .......................................................................................................................12

21 U.S.C. 331(a), 343(g).............................................................................................................4

New Jersey Consumer Fraud Act (NJCFA), N.J.S.A. 56:8-1 et seq....................................22, 23

OTHER AUTHORITIES

21 C.F.R. 169.140 (2014) .............................................................................................................4



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5 J. Thomas McCarthy, MCCARTHY ON TRADEMARKS AND UNFAIRCOMPETITION 27:51 (2014)..........................................................................................................................18

JASPERWOMACH, CRS REPORT FORCONGRESS, AGRICULTURE: A GLOSSARY OFTERMS, PROGRAMS,ANDLAWS(2005) ......................................................................................4

MERRIAM WEBSTERONLINE DICTIONARY,available athttp://www.merriam-webster.com/ ........................................................................................................................5, 13

Shari Seidman Diamond,Control Foundations: Rationales and Approaches,inTRADEMARK ANDDECEPTIVE ADVERTISING SURVEYS, 201 (Shari SeidmanDiamond and Jerre B. Swann eds. 2012).................................................................................15



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Plaintiff Conopco, Inc., doing business as Unilever (Unilever), respectfully

submits this memorandum of law in support of its motion to enjoin Hampton Creek, Inc.

(Hampton Creek) from distributing false and deceptive labeling and advertising for

Just Mayo, a plant-based vegan alternative to real mayonnaise that, despite its deceptive

name, isnot mayonnaise.

PRELIMINARY STATEMENT

Unilever owns the Hellmanns and Best Foods brands the nations leading

brands of real mayonnaise. Hampton Creek competes against Unilever with a vegan

dressing and sandwich spread it calls Just Mayo. Despite its name,Just Mayois not, in

fact, mayonnaise, but rather, is a plant-based alternative to real mayonnaise. Real

mayonnaise, under Food and Drug Administration (FDA) standards, common

dictionary definitions, and common usage, is a product made from eggs (along with oil

and an acidifying ingredient, like vinegar or lemon juice). Just Mayois a vegan product

that contains no eggs. It is just not mayo.

Further,Just Mayodoes not perform like mayonnaise, as consumers would expect

of a product called Just Mayo. Rather, unlike real mayo,Just Mayocannot be used in

some of the many recipes that call for using mayonnaise in cooking. That is, because,

when heated,Just Mayocan separate into its constituent parts rather than maintaining the

binding qualities that make real mayonnaise a useful ingredient in certain recipes.

TheJust Mayoname is thus literally false. Under well-settled Third Circuit case

law, it should be enjoined immediately. Novartis Consumer Health, Inc. v. Johnson &

Johnson-Merck Consumer Pharm. Co., 290 F.3d 578, 599-600 (3d Cir. 2002) (affirming



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injunction against literally falsely named Mylanta NightTime Strength antacid because it

contained no ingredients that made it more effective for night time heartburn); Warner-

Lambert Co. v. BreathAsure, Inc., 204 F.3d 87, 97 (3d Cir. 2000) (affirming injunction

against literally false name BreathAsure for breath tablets because they did not assure

good breath).

Given that theJust Mayoname is literally false, Unilever need not provide any

further evidence of the false messages communicated by the deceptiveJust Mayoname

in order to obtain a preliminary injunction. Nevertheless, Unilever has gone further: It

has commissioned a consumer perception survey that confirms the overwhelmingly

confusing nature of theJust Mayoname. About half of consumers who were shown the

Just Mayolabeling and asked to consider the product as if they were making a purchase

were deceived into believing they were purchasing real mayonnaise. Unilever is thus

highly likely to succeed on the merits of its Lanham Act false advertising claim, as well

as parallel claims under the New Jersey Consumer Fraud Act.

Hampton Creeks advertising and use of the Just Mayoname is not only

deceiving consumers, but it also is causing irreparable harm to Unilever. Unilever has

already lost sales as a result of Hampton Creeks deceptive labeling and advertising;

initial data from one major retailer shows that more than half ofJust Mayopurchasers

who had previously purchased real mayonnaise switched from the Best Foods and

Hellmanns brands. If Hampton Creeks false claims are not stopped, Hampton Creek

will lure more consumers to its brand on these false pretenses. Because advertising,

including false advertising, is just of many factors that impact consumer purchasing



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decisions, the effect will lead to irreparable harm to Unilever that is enormously difficult

to quantify. And, becauseJust Mayodoes not perform like real mayo, Hampton Creeks

false advertising will damage the entire product category, which has strived to maintain a

consistent definition of mayonnaise that fits with consumer expectations.

The final two factors of the preliminary injunction standard similarly favor entry

of an injunction here. Because Hampton CreeksJust Mayois deceiving consumers, the

public interest is furthered by an injunction prohibiting this deceptive conduct. In

addition, given the irreparable harm Unilever will suffer in the absence of relief and the

lack of any legitimate basis for Hampton Creek to pass off its non-mayo product as real

mayo, the balance of hardships tips decidedly in Unilevers favor.

STATEMENT OF FACTS

I. The Hellmanns and Best Foods Brands of Real Mayonnaise.

Unilever sells the popular Hellmanns and Best Foods brands of real

mayonnaise. The Hellmanns brand was born more than a century ago, in 1905, when

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.

Hellmanns mayonnaise came to be so enormously popular that Hellmann soon devoted

his entire business to jarring and selling Hellmanns Real Mayonnaise. Declaration of

Ryu Yokoi (November 7, 2014) (Yokoi Decl.) 3.

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



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most popular brand of mayonnaise west of the Rocky Mountains, and Hellmanns has

been the most popular brand east of the Rockies. Id. 4. As a result of their inherent

quality and tremendous popularity for over one hundred years, Best Foods and

Hellmanns remain the nations leading brands of mayonnaise.

II. The Mayonnaise Product Category

Federal regulations provide a specification for products that are allowed to be

marketed as mayonnaise. The FDAs standard of identity defines mayonnaise as the

emulsified semisolid food prepared from vegetable oil(s), an acidifying ingredient of

either (1) vinegar or (2) lemon juice or lime juice, or both, and an egg yolk-containing

ingredient. 21 C.F.R. 169.140 (2014). The need for regulation in this area arose in

response to prior efforts by unscrupulous manufacturers to pass off diluted products,

which did not meet consumers expectations for mayonnaise, as actual mayonnaise.

Yokoi Decl. 5. As the Congressional Research Service branch of the Library of

Congress explains, the standard of identity was developed to protect the consumer by

ensuring that a label accurately reflects whats inside (for example, that mayonnaise is

not an imitation spread . . . . ). JASPERWOMACH, CRS REPORT FORCONGRESS,

AGRICULTURE: A GLOSSARY OF TERMS, PROGRAMS,ANDLAWS, CRS-243-44 (2005).

Identifying a product that does not meet this definition as mayonnaise is a violation of

FDA regulations. 21 U.S.C. 331(a), 343(g).

Mayo is defined in multiple dictionaries as a shorthand for mayonnaise, and is

regularly used that way by the media and the trade. It also is understood by consumers to

be synonymous with mayonnaise. Yokoi Decl. 14. In addition, consumers have



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come to understand, and expect, that real mayonnaise will contain egg, oil and an

acidifying ingredient. That is reflected in common dictionary definitions of mayonnaise,

which define mayonnaise as a dressing made chiefly of egg yolks, vegetable oils, and

vinegar or lemon juice. MERRIAM WEBSTERONLINE DICTIONARY,available at

http://www.merriam-webster.com/ (emphasis added);see alsoYokoi Decl. 8.

Advertising for Hellmanns and Best Foods has stressed for decades 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. Yokoi Decl. 6 & Ex. A. Similarly, advertising for Hellmanns emphasizes

that real mayonnaise can be used not only as a spread on sandwiches, but in recipes for

cooking as well. Id. 15 & Ex. L.

III. False Labeling and Advertising ofJust Mayo

In or around September 2013, Hampton Creek

began selling a variety of sandwich spreads that it packages

and sells under the nameJust Mayo. As shown at right, the

Just Mayopackaging prominently features the name Just

Mayowith the word Just appearing in small cursive

writing above the significantly larger word Mayo, which

is presented in bold, 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. Id. 9 & Ex. D.



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BecauseJust Mayodoes not containany

egg ingredients, it isnot mayo. As shown at right,

theJust Mayopackaging 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 Food Starch, Beta-Carotene. In some versions of the

product, a preservative is added to render the product shelf-stable. Id. 10 & Ex. E.

Hampton Creek concedes that its product does not contain egg, with a small disclaimer

Egg Free that appears on the left side of the label. Id. 11.

Hampton Creek also sells flavored sandwich spreads that include the name Just

Mayowith a term describing added flavors, including Just Mayo Chipotle,Just Mayo

Garlic, andJust Mayo Sriracha. As shown below, the labeling for these flavoredJust

Mayosandwich spreads is nearly identical to the labeling for the unflavored Just Mayo

spread, except the name of the flavor appears below the words Just Mayo. As with

unflavoredJust Mayo, none of the flavoredJust Mayospreads containany egg



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ingredients, despite the prominent image of the egg on the label. On the flavored

products, the disclaimer Egg Free appears in small letters only on the back label of the

product. Id. 12.

In addition to falsely naming its vegan sandwich spread mayo, Hampton Creek

has explicitly and falsely referred toJust Mayoas mayo and mayonnaise in

advertisements:

As shown immediately below, on its website, Hampton Creek has stated:

Just Mayo is an outrageously delicious mayonnaise. . . (emphasis

added). More recently, in an apparently acknowledgement that the

product is not mayonnaise, Hampton Creek as removed the word

mayonnaise from this page of its website (see second image below).

Id. 13 & Ex.G.



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As shown below, on its website, Hampton Creek is currently stating that

Just Mayois [c]reamy richmayofor any sandwich, anytime. Id.13 &

Ex. H (emphasis added).

On its Facebook page, Hampton Creek states that it is the #1 selling

mayoat Whole Foods Market! Id. 13 & Ex. I (emphasis added).

Hampton Creeks conduct is particularly deceptive because Just Mayodoes 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 binds

together other ingredients. BecauseJust Mayolacks the ingredients of real mayonnaise,

it can separate into its constituent parts when it is heated and fail to bind together

ingredients. Id. 15. By calling itself mayo and failing to perform like mayonnaise,

Just Mayodeceives consumers who may attribute the failed performance to all



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mayonnaise products. Hampton Creeks false advertising thus damages the entire

product category, which, as discussed above, has strived for decades to protect a

consistent definition of mayonnaise that fits with consumer expectations. Id. 6, 16.

Consumers deceived into believingJust Mayois real mayonnaise and who are

subsequently disappointed by its failure to perform adequately will falsely believe those

sub-standard characteristics are common to mayonnaise generally, including Unilevers

Best Foods and Hellmanns brands. Id. 21.

Hampton Creek is well aware of the consumer confusion its false advertising

causes. 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 buyJust Mayo, they are getting a product that is different than real

mayonnaise. Id. 18 & Ex. M.

Deceiving consumers into believing that Just Mayo is real mayonnaise is part and

parcel of Hampton Creeks business strategy. During the same November 2014

interview, Mr. Tetrick explained why Hampton Creek wants its Just Mayoproduct to be

understood as mayonnaise rather than as a mayonnaise substitute:

Focusing on substitute and focusing on alternatives is a recipe forloserdom for us. Its a recipe for being a niche company. Its a recipe forlots of folks who are in the natural world to sort of give us a big round ofapplause and a recipe for someone in Birmingham, Alabama to ignore us

completely. And thats something we dont want. So, were trying tofocus more on not the alternative, but the only thing i.e., notsubstitute mayo, but just mayo.

Id. 19. In another recent interview this time, with Stuart Varney of Fox Business

News Mr. Tetrick was asked directly why Hampton Creek avoids truthfully calling its



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product vegan. Mr. Tetrick explained that calling the product vegan mayo would not

be too effective because Hampton Creek is all about making the thing accessible,

including to shoppers who are not looking for a vegan product. Id. 20 & Ex. N. The

clear implication is that a truthful label accurately describing Just Mayoas a vegan

substitute for mayonnaise would undermine Hampton Creeks business strategy.

Hampton Creek doesnot want its customers to know thatJust Mayois a vegan mayo

substitute; rather, it wants its customers to think that it is just regular mayo.

IV. Harm to Unilever and Unilevers Efforts to Resolve the Dispute

Unilever has given Hampton Creek ample notice of its complaints regarding the

Just Mayoname, packaging and advertising. In March 2014, shortly after it first learned

aboutJust 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 nameJust

Mayo. Id. 23.

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

which were dated October 31, 2014 and November 4, 2014 and Unilever has continued

to explain its concerns regarding the name Just Mayo. In the October 31st letter,

Unilever also put Hampton Creek on express notice that Unilever would seek a

preliminary injunction if Hampton Creek continued its use of the Just Mayoname.

Despite Unilevers efforts to convince Hampton Creek to correct its false and misleading

labeling and advertising, Hampton Creek refused to do so. Id. 24.



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Furthermore, developments since March 2014 have exacerbated the harm to

Unilever. WhenJust Mayoinitially was introduced, 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 club. Because theJust Mayoproduct 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. Id. 25.

In April 2014, mainstream supermarkets that carry the Best Foods and

Hellmanns brands, like Safeway, began carrying Just Mayoin a shelf-stable version.

In at least some of these stores, Just Mayobegan to compete directly with Best Foods

and Hellmanns for shelf space. Several months later, Unilever learnedJust Mayo

would be carried by Walmart nationally in a shelf-stable version, which also would

directly compete for shelf space with Best Foods and Hellmanns mayonnaise.

Id. 26.

Just Mayois already impacting sales of Best Foods and Hellmanns

mayonnaise. Data obtained from a leading supermarket chain, for example, shows that

more than half ofJust Mayopurchasers who had previously purchased real mayonnaise

had switched from the Best Foods or Hellmanns brands. AsJust Mayogains greater

penetration in the market, harms in the form of lost sales are bound to increase. IfJust

Mayois not enjoined, it will win some consumers brand loyalty based on false pretenses,

and will irreparably harm Unilever in a way that is enormously difficult to quantify.

Id. 28.



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ARGUMENT

I. The Standard for Relief

To obtain a preliminary injunction, a plaintiff must establish (1) a likelihood of

success on the merits; (2) irreparable harm; (3) a balance of equities in favor of the

plaintiff; and (4) that the public interest favors an injunction. Ferring Pharm., Inc. v.

Watson Pharm., Inc., 765 F.3d 205, 210 (3d Cir. 2014); Novartis Consumer Health, Inc.

v. Johnson & Johnson-Merck Consumer Pharm. Co., 290 F.3d 578, 586 (3d Cir. 2002).

As explained below, Unilever satisfies these elements and is thus entitled to a preliminary

injunction.

II. Unilever Is Likely to Succeed on the Merits of its False Advertising Claim.

Section 43(a) of the Lanham Act makes actionable:

any . . . false or misleading description of fact, or false or misleadingrepresentation of fact, which . . . in commercial advertising or promotion,misrepresents the nature, characteristics, qualities, or geographic origin of

his or her or another persons goods, services or commercial activities.

15 U.S.C. 1125(a). That language also prohibits false statements embodied in the name

of a product. See Novartis,290 F.3d at 599-600 (Mylanta Night Time Strength name

for antacid enjoined as false because it was not specifically formulated for night time

heartburn and did not remedy heartburn more effectively at night than during the

daytime);Warner-Lambert Co. v. BreathAsure, Inc., 204 F.3d 87, 96-97 (3d Cir. 2000)

(name BreathAsure for product that did not assure against bad breath was literally

false). Where a product name either literally states a false claim, or necessarily implies a

false claim, no evidence of consumer confusion is required to demonstrate that



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Section 43(a) has been violated. Novartis,290 F.3d at 586-87. As discussed in detail

below, theJust Mayoname and labeling are literally false. Further, although consumer

perception evidence is not required in these circumstances, a well-designed consumer

perception study shows that confusion is rampant, thus confirming the need for injunctive

relief to protect consumers against further deception.

A. TheJust MayoName is Literally False

Just Mayois literally false because it literally means that the product is just

exactly, precisely, only, simply1 mayonnaise. Just Mayo,however, is not

exactly, precisely, only, or simply mayonnaise. Most significantly, it has no

eggs, which is a necessary ingredient in real mayonnaise. Instead, it is an entirely vegan

product. It is, therefore, expressly false for Hampton Creek to use the name Just

Mayo. See Novartis, 290 F.3d at 590 (finding Mylanta Night Time Strength name for

antacid literally false where product was not specifically formulated for night time

heartburn and did not remedy heartburn more effectively at night than during the

daytime);BreathAsure, Inc., 204 F.3d at 96-97 (finding BreathAsure name literally

false where product did not promote fresh breath); Merck Eprova AG v. Gnosis S.P.A.,

760 F.3d 247, 256 (2d Cir. 2014) (defendants use of the common name for a pure dietary

ingredient in product specification sheets, brochures, and product data sheets was literally

false where defendant was actually selling a mixed product); Johnson & Johnson v.

1Merriam Webster Online Dictionary, available athttp://www.merriam-webster.com/(definition for just).



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GAC Intl, Inc., 862 F.2d 975 (2d Cir. 1988) (naming orthodontic brace polysapphire,

in light of consumer demand for competitors sapphire-containing bracket, was false and

misleading where product was not made of sapphire); Contl Wax Corp. v. Fed. Trade

Commn, 330 F.2d 475, 477 (2d Cir. 1964) (requiring company to remove designation

Six Month from name of floor wax because product name conveyed false impression

that [the] product would last and be effective for six months); Kraft Gen. Foods, Inc. v.

Del Monte Corp., 28 U.S.P.Q.2d 1457, 1460 (S.D.N.Y. 1993) (enjoining use of Gelatin

Snacks as name of product where product contained gelatin-like ingredient derived from

seaweed, rather than real gelatin from animal products).2

B. Survey Evidence Demonstrates That The NameJust MayoIs

Misleading.

Given that theJust Mayoname is literally false, Unilever does not need any

further evidence that the name is deceiving consumers. Novartis,290 F.3d at 586-87.

Nevertheless, to measure scientifically the extent to which consumers are likely to be

2That theJust Mayolabel discloses that it is egg free cannot dispel the literal falsitythatJust Mayois exactly (or simply) mayo. Because consumers have little reasonto question an apparently unambiguous statement, courts routinely reject similarattempts to correct literally false statements in advertising with an inadequate orinconspicuous disclaimer. See,e.g.,Bracco Diagnostics, Inc. v. Amersham Health,

Inc., 627 F. Supp. 2d 384, 464 (D.N.J. 2009) (disclaimer that purports to change theapparent meaning of the claims and render them literally truthful, but which is soinconspicuously located or in such fine print that readers tend to overlook it, will not

remedy the misleading nature of the claims (citation omitted)); Smithkline BeechamConsumer Healthcare, L.P. v. Johnson & Johnson-Merck Consumer Pharm. Co.,906 F. Supp. 178, 182 (S.D.N.Y. 1995) (same), affd, 100 F.3d 943 (2d Cir. 1996);

Am. Home Prods. Corp. v. Johnson & Johnson, 654 F. Supp. 568, 590 (S.D.N.Y.1987) (same).



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confused into believing theJust Mayois real mayonnaise, Unilever engaged Dr. Michael

Mazis, a leading consumer perception survey expert who has done similar survey work

for the Federal Trade Commission. Dr. Mazis conducted a survey in which he showed

consumers images of theJust Mayolabel and product and asked them how they would

describe the product. 53.7% of those consumers gave a response indicating that they

mistakenly believedJust Mayois mayonnaise. Declaration of Michael Mazis (November

7, 2014) (Mazis Decl.) 4.

In order to determine how much of that confusion was attributable to the use of

the word mayo and/or the failure to clearly communicate that the product is not really

mayonnaise, Dr. Mazis showed two alternative labels to other groups of consumers. One

label used the name Just Delicious Dressinginstead ofJust Mayo, but was otherwise

identical to theJust Mayolabel; the other changed the name from Just Mayoto Not Quite

Mayo. Only 10.2% of the consumers who saw theJust Delicious Dressinglabel

mistakenly believed that it was mayonnaise, and only 5.8% of the consumers who saw

theNot Quite Mayolabel mistakenly believed that it was real mayonnaise. Id. 4, 5, 6.

Even if these percentages are subtracted from the results as a measure of survey noise,

it remains the case that more than 40 percent of all respondents in the surveys, net of

noise, are deceived into believing thatJust Mayois mayonnaise. Id. 25.; see, e.g.,

Novartis, 209 F.3d at 591 n.7 (netting out . . . noise to calculate level of confusion);

see generallyShari Seidman Diamond, Control Foundations: Rationales and

Approaches,inTRADEMARK AND DECEPTIVE ADVERTISING SURVEYS, 201, 201-16 (Shari

Seidman Diamond and Jerre B. Swann eds. 2012). This level of confusion is well above



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the minimum confusion levels required to support findings of implied falsity in violation

of the Lanham Act. See, e.g.,Novartis, 290 F.3d at 594 (15% confusion is sufficient to

establish the actual deception or at least a tendency to deceive a substantial portion of the

intended audience (citation and internal quotation marks omitted)); Church & Dwight

Co. v. S.C. Johnson & Son,Inc., 873 F. Supp. 893, 911 (D.N.J. 1994) ([c]ourts have

found survey figures to be sufficient when they revealed that 21 percent to 34 percent,

over 25 percent, and 33 percent of respondents received a misleading message from the

ad (citation omitted) (alteration in original)); McNeilab, Inc. v. Am. Home Prods. Corp.,

501 F. Supp. 517, 525, 527 (S.D.N.Y. 1980) (23% confusion provides ample support

for Lanham Act claim);see also Goya Foods, Inc. v. Condal Distribs., Inc., 732 F. Supp.

453, 457 n.7 (S.D.N.Y. 1990) (expert witness opinion that any figure greater than 7

percent is meaningful is supported by the relevant case law; 8-9% confusion sufficient

in Lanham Act case).3

The numbers alone do not tell the entire story. When consumers verbatim

responses in the survey are reviewed, it is apparent that the deception is being caused by

theJust Mayoname and packaging, and not other aspects such as the look of the product

3Dr. Mazis tested a third modified label, in which he added the word dressing to the

Just Mayoname, to test whether the addition of that word to the nameJust Mayowould correct the misimpression communicated by the name. He found that, evenwith the addition of the word dressing, more than 40 percent of consumers were

deceived into believing that theJust Mayoproduct was real mayonnaise. MazisDecl. 4, 26. Dr. Mazis is in the process of testing a fourth alternative JustDressing as a formal control cell; he will report the results of that cell in asupplemental declaration that Unilever intends to submit with its reply papers.Mazis Decl. at 27.



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or the shape of the jar. For example, in response to questions asking consumers to

describe the product that they just saw, respondents gave answers like the following:

all natural mayo (Panel ID 12780242)

Mayonayse [sic] (Panel ID 14169732)

Just plain mayonnaise nothing fancy in the label. (Panel ID 15537385)

A jar of mayonnaise with a brown wrapper from Hampton Farms.(Panel ID 4188061)

Mazis Decl. Ex. E. These and many similar responses show that many consumers

understand the product to be actual mayonnaise rather than an imitation, non-mayonnaise

sandwich spread. Further, when respondents were asked why they thoughtJust Mayo

was mayonnaise, they provided reasons that explicitly indicated that their confusion

stemmed from the nameJust Mayothat appeared on the label:

The jar said mayo. (Panel ID 14410408)

The label said so. (Panel ID 13182998)

Thats what the label said. (Panel ID 10136314)

The name Just Mayo makes me think that it is real mayo. (Panel ID149708224)

Id.

Focus group research conducted by Unilever confirms this confusion. Consumers

who participated in a recent focus group were shown a jar ofJust Mayoand were asked

their reactions to the product. The consumers 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



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not Just Mayo, its a lie. Yokoi Decl. 17. The results of Dr. Mazis survey and

Unilevers focus group research show that a significant number of consumers understand

theJust Mayoname and labeling to convey the false message that Hampton Creeks

vegan sandwich spread is real mayonnaise.

The high level of consumer confusion demonstrated by Unilevers consumer

perception study and focus group further underscore the necessity of preliminary

injunctive relief in order to prevent continued widespread consumer deception. That

confusion should hardly come as a surprise to Hampton Creek, whose CEO has publicly

admitted that most consumers are confused, and do not realize that Just Mayo is

different from regular mayo. See id. 18 & Ex. M. Where, as here, an advertiser

engages in a deliberate strategy to deceive consumers, the conclusion that consumers

actually are deceived follows as a matter of course. See5 J. Thomas McCarthy,

MCCARTHY ON TRADEMARKS AND UNFAIRCOMPETITION 27:51 at 27-122 (2014);see

also Bracco, 627 F. Supp. 2d at 477.

III. Unilever Will Suffer Irreparable Harm in the Absence of a Preliminary

Injunction.

To demonstrate irreparable harm in a Lanham Act case, a party must show two

things: (i) that the parties are competitors in the relevant market, and (ii) that there is a

logical causal connection between the alleged false advertising and its own sales

position. Reckitt Benckiser Inc. v. Motomco Ltd., 760 F. Supp. 2d 446, 454 (S.D.N.Y.

2011) (citation and internal quotation marks omitted).



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Hampton Creek and Unilever are direct competitors in the market for sandwich

spreads, and Hampton Creeks false advertising has already had a negative effect on the

market share enjoyed by Unilever. For example, data obtained from a leading

supermarket chain shows that more than half ofJust Mayopurchasers who had

previously purchased real mayonnaise had switched from the Best Foods and

Hellmanns brands.4

See Novartis, 290 F.3d at 595-96 (decrease in sales and loss of

market share constitute irreparable harm).

BecauseJust Mayois 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. Every day thatJust Mayoremains on the shelves, and each

additional dissemination of the falsehoods in Hampton Creeks advertisements, exposes

millions of consumers to Hampton Creeks deceptions and necessarily harms Unilever in

a manner that is enormously difficult to quantify. Yokoi Decl. 27. The inability to

quantify harm is itself a form of irreparable harm. See WPIX, Inc. v. ivi, Inc., 765 F.

Supp. 2d 594, 618 (S.D.N.Y. 2011) (These losses are notoriously difficult to prove and

4 The actual data is highly confidential and, under Unilevers agreement with thesupermarket 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 theCourt, and as soon as the protective order is in place, upon receipt of a documentrequest from Hampton Creek, Unilever will make the underlying informationavailable to Hampton Creek and will file a declaration under seal to provide thisinformation to the Court. Yokoi Decl. 28.



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nearly impossible to quantify, and accordingly are considered irreparable. (citation

omitted)),affd,691 F.3d 275 (2d Cir. 2012).

In addition, Unilever has invested significant resources to educate consumers that

real mayonnaise can be used not only as a spread on sandwiches, but also in recipes

where it is heated. For example, one of the signature recipes associated with the

Hellmanns brand is Parmesan Crusted Chicken, but when that recipe is made with Just

Mayo,the Hampton Creek product separates and fails to provide the coating that real

mayonnaise would provide. Yokoi Decl. 15 & Ex. L. Consumers who are deceived into

believingJust Mayois real mayonnaise and who are subsequently disappointed by its

failure to perform adequately when heated will falsely believe those sub-standard

characteristics are common to mayonnaise generally, including Unilevers Best Foods

and Hellmanns brands. Id. 21.

IV. The Balance of Equities Favors an Injunction.

Because Unilever will suffer irreparable injury absent an injunction, the Court

need only consider whether an injunction would unduly harm Hampton Creek. See

Opticians Assn of Am. v. Indep. Opticians of Am., 920 F.2d 187, 197 (3d Cir. 1990);

Church & Dwight Co., 873 F. Supp. at 912. The self-inflicted nature of any harm to

Hampton Creek weighs in favor of injunctive relief. Hampton Creek cannot complain

about the harm to it that will ensue if it is ordered to stop its false and misleading conduct

because the benefits it is receiving from deceiving customers through the Just Mayo

name and advertising are illegitimate and not legally cognizable. See Novartis, 290 F.3d

at 596 (the injury a defendant might suffer if an injunction were imposed may be



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discounted by the fact that the defendant brought that injury upon itself); Opticians

Assn, 920 F.2d at 197;see also Pappan Enters., Inc. v. Hardees Food Sys., Inc., 143

F.3d 800, 806 (3d Cir. 1998) (applying self-inflicted injury rule in trademark case);

Value Group, Inc. v. Mendham Lake Est., L.P., 800 F. Supp. 1228, 1234 (D.N.J. 1992)

(applying rule in copyright case).

V. The Public Interest Favors an Injunction

[T]here is a strong public interest in the prevention of misleading

advertisements. Novartis, 290 F.3d at 597 (citation and quotation marks omitted);

GlaxoSmithKline Consumer Healthcare v. Merix Pharm. Corp., No. Civ. 05-898(DRD),

2005 WL 2230318, at *12 (D.N.J. Sept. 13, 2005) (There is an obvious public interest in

preventing misleading advertisements. . . .). As discussed above, Hampton Creeks

misleading name falsely states that its vegan sandwich spread is mayonnaise, when, in

fact, it is not. This false advertising deceives consumers, and damages the entire product

category, which has strived for decades to protect a consistent definition of mayonnaise

that fits with consumer expectations. Yokoi Decl. 16. BecauseJust Mayois justnot

mayonnaise and doesnot fit with the expectations of mayonnaise, it is in the public

interest to eliminate Hampton Creeks false and deceptive claims. Moreover, the strength

of Unilevers showing above that there is a likelihood that Unilever will succeed on the

merits means that Unilevers burden on this factor is lessened. See AT&T Co. v.

Winback and Conserve Program Inc., 42 F.3d 1421, 1427 n.8 (3d Cir. 1994) (As a

practical matter, if a plaintiff demonstrates both a likelihood of success on the merits and



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irreparable injury, it almost always will be the case that the public interest will favor the

plaintiff.).

VI. Unilever Also Is Entitled to Preliminary Relief Under the New Jersey

Consumer Fraud Act.

Unilever also is entitled to a preliminary injunction because of Hampton Creeks

violation of the New Jersey Consumer Fraud Act (NJCFA), N.J.S.A. 56:8-1 et seq.

The NJCFA is a broad consumer protection measure enacted to eliminat[e] sharp

practices and dealings in the marketing of merchandise. Channel Cos. v. Britton, 167

N.J. Super. 417, 418, 400 A.2d 1221 (App. Div. 1979). As such, it prohibits

[t]he act, use or employment by any person of any unconscionablecommercial practice, deception, fraud, false pretense, false promise,misrepresentation, or the knowing, concealment, suppression, or omissionof any material fact with intent that others rely upon such concealment,suppression or omission, in connection with the sale or advertisement ofany merchandise, . . or with the subsequent performance of such person asaforesaid, whether or not any person has in fact been mislead, deceived ordamaged thereby . . . .

N.J.S.A. 56:8-2. Competitors have standing to bring claims for false advertising under

the statute. See Feiler v. New Jersey Dental Assn, 467 A.2d 276, 279 (N.J. Super. Ct.

Ch. Div. 1983).

The same operative facts that establish a violation of Section 43(a) of the Lanham

Act also establish a violation of the NJCFA. See Coach, Inc. v. Paulas Store Sportswear

LLC, Civil Action No. 133263 (SRC), 2014 WL 347893, at *3 (D.N.J. Jan. 31, 2014).

Because Unilever has demonstrated that the labeling and advertising for Just Mayois

false, it has made the required showing under the NJCFA as well.



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CONCLUSION

For the reasons set forth above, Unilever respectfully requests that this Court

immediately enjoin Hampton Creek from using the name Just Mayoand from further

disseminating the false claims in its advertising forJust Mayo.


DEBEVOISE & PLIMPTON LLP

By: /s/ Michael PotenzaBruce P. Keller ([email protected])David H. Bernstein ([email protected])*Michael Potenza ([email protected])Jared I. Kagan ([email protected])*

919 Third AvenueNew York, New York 10022(212) 909-6696

Attorneys for Plaintiff Conopco, Inc. dba Unilever*admitted pro hac vice



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Bruce P. Keller ([email protected])David H. Bernstein ([email protected])*Michael Potenza ([email protected])

Jared I. Kagan ([email protected])*DEBEVOISE & PLIMPTON LLP919 Third AvenueNew York, New York 10022(212) 909-6000

Attorneys for Conopco, Inc.*admitted pro hac vice



Plaintiff,

-against-


Defendant.

:::::::::

14 Civ. 06856 (WHW)(CLW)

DECLARATION OF

MICHAEL MAZIS

----------------------------------------------------------------------- x

I, Michael Mazis, declare as follows:

1. I submit this declaration on personal knowledge in support of Unilevers

application for a preliminary injunction against Hampton Creek, Inc. (Hampton Creek).

2. I am Professor Emeritus of Marketing at American Universitys Kogod

School of Business and have conducted marketing research surveys for over 30 years. I

was a faculty member at American University for 28 years, and I served over 10 years as

chair of the marketing department. I have taught courses in consumer behavior,



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2

marketing research, marketing principles, marketing management, and marketing and

public policy. I have testified in Federal Court many times as an expert on consumer

perception of advertising and product labels, including on behalf of the Federal Trade

Commission. Additional information about my professional background is provided

below at 29-30, and in my resume, which is attached as Exhibit A hereto. A list of the

cases in which I have testified in the last four years is attached as Exhibit B hereto.

NATURE OF RETENTION AND SUMMARY OF CONCLUSIONS

3. I was engaged by counsel for Unilever, the manufacturer of Hellmanns

and Best Foods mayonnaise, to conduct a survey among purchasers of mayonnaise,

mayonnaise dressing, or imitation mayonnaise. The purpose of the research was to

determine consumers perceptions ofJust Mayo, a product distributed by Hampton Creek

Foods, Inc. As I understand it, becauseJust Mayois egg-free, it cannot be called

mayonnaise under the Food and Drug Administrations standard of identity for

mayonnaise, which specifies that egg yolks are a necessary ingredient of mayonnaise.

Accordingly, I was asked to investigate whether consumers perceive Just Mayoas real

mayonnaise, as a spread or dressing that resembles mayonnaise but is not real

mayonnaise, or as something else.

4. To determine whether consumers mistakenly believe thatJust Mayois

mayonnaise, I designed and conducted a survey. The findings of the survey, described

herein, demonstrate that an overwhelming majority (53.7%) of the respondents who saw

theJust Mayolabel and product mistakenly perceive the product to be real mayonnaise.



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3

Adding the word Dressing to the Just Mayolabel (Just Mayo Dressing) only

marginally diminishes, but does not eliminate, the propensity of consumers to identify

Just Mayoas real mayonnaise (41.5%). Therefore, to determine how much of the

confusion was attributable to the use of the word mayo and/or by the use of the word

just which fails to explain that the product is not real mayonnaise, I tested two

additional labels. One label used the name Just Delicious Dressing instead ofJust

Mayo(replacing the alleged false use of the term Mayo), but was otherwise identical to

theJust Mayolabel. The other label prominently changed the name fromJust Mayoto

NOT QUITE MAYO (replacing the alleged false use of the term Just).

5. Only 5.8% of the consumers who saw the NOT QUITE MAYO label

mistakenly believed that it was real mayonnaise. Subtracting the 5.8% from this group

who said the product was real mayonnaise from the 53.7% in the group who viewed the

Just Mayolabel and selected this answer, yields 47.9% who identified Just Mayoas real

mayonnaise.1

6. Only 10.2% of the consumers who saw the Just Delicious Dressing label

mistakenly believed that it was real mayonnaise. Subtracting the 10.2% from this

group who said the product was real mayonnaise from the 53.7% in the group who

viewed theJust Mayolabel and selected this answer, yields 43.5% who identified Just

Mayoas real mayonnaise.

1 It is well accepted in the survey field that the gross level of confusion in a test cellshould be adjusted to reflect mis-measurement error, or noise, much like apharmaceutical trial accounts for noise through a placebo test.



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4

7. The difference of 43.5% to 47.9% between confusion in the group that

was shown theJust Mayolabel and the groups that were shown the Just Delicious

Dressing label (i.e., no mayo) and the Not Quite Mayo label (i.e., no just)

demonstrates that a very substantial percentage of consumers (more than 40 percent) are

confused by the nameJust Mayo.

CONSUMER SURVEY

Data Collection and Universe

8. I designed an online survey to determine whether consumers who

purchase mayonnaise, mayonnaise dressing, or imitation mayonnaise believe that Just

Mayois real mayonnaise or some other type of spread or dressing. Decision Analyst, a

national marketing research firm based in Arlington, Texas was responsible for providing

the sample, hosting the survey, and collecting data for the research. In addition, under

my direction, Decision Analyst tabulated the data.

9. Data for the survey were collected from August 13, 2014 to August 20,

2014. Decision Analyst used its American Consumer Opinion (ACO) panel to

complete the study. The ACO panel is a worldwide, online panel managed by

Decision Analyst; it reaches more than eight million consumers in the United States and

overseas.

10. A total of 822 consumers participated in the research; all were adults 18

years of age or older and residents of the United States. In addition, all respondents had



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5

purchased mayonnaise, mayonnaise dressing, or imitation mayonnaise in the past six

months and also planned to purchase these products in the next six months.

Study Design

11. The survey was comprised of two sections: a Screener designed to identify

consumers who qualified for the research based on purchase behavior and other criteria;

and a Main Questionnaire designed to assess perceptions of the product based on viewing

an image of the bottle and the product label.

12. Respondents were assigned randomly to one of four groups: a group in

which respondents viewed theJust Mayolabel and product and three additional groups

that saw images of the product with a modified label. Modifications involved:

Adding the word Dressing to theJust Mayoproduct label to assess whetherincluding this term materially altered consumers perceptions.

Changing the product name to Not Quite Mayo to assess the impact of a moreaccurate product name on consumers perceptions that does not include the

allegedly false word Just (which means exactly or simply). Changing the product name to Just Delicious Dressing to gauge how removing

the word Mayo and substituting another phrase (Delicious Dressing) in theproduct name affected consumer perceptions.

Each respondent viewed only one image of the bottle and product label.

Screener Questions

13. The survey was distributed to members of an online panel that had agreed

to be available to take internet-based surveys. The first three screener questions were

designed to ensure that the individual taking the survey was, indeed, the panel member.

If the participants responses were not consistent with the panel database, the participant

was not permitted to continue with the survey. These initial questions asked for the



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6

respondents gender, state of residence and year of birth. A PDF version of the

programmed Screen and Main Questionnaire is attached as Exhibit C.

14. The next screener question was designed to eliminate respondents who

either worked in, or had a household member working in, an industry that might have

some specialized knowledge about the issues tested in the survey, such as marketing

research, advertising, or a company that manufactured, distributed, or sold food products.

This is done to allow the survey to focus on actual consumers.

15. Next, respondents were asked:

Please review the list below and indicate if you have purchased any of thefollowing products in the past 6 months or expect to make such a purchase in thenext 6 months?

Ketchup or catsup

Mayonnaise, mayonnaise dressing, or imitation mayonnaise

Yellow mustard or brown mustard

Peanut butter or hazelnut spread

Horseradish or hollandaise sauce

None of these

This step was taken to disguise the purpose of the research and ensure respondents were

purchasers of the product category of interest. To qualify, respondents had to have

purchased mayonnaise, mayonnaise dressing, or imitation mayonnaise in the past six

months and had to have expected to make another purchase of one of these products in

the next six months.

16. Respondents were then asked whether they needed corrective eyewear; if

so, they were instructed to wear their corrective eyewear for the duration of the survey.

Those who refused were not permitted to continue taking the survey. Finally,



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7

respondents were instructed to take the survey in one sitting and not to confer with

anyone else or view any other materials while completing the survey. Again, refusal to

agree to this condition was grounds for elimination from the survey.

Main Questionnaire

17. Before answering questions about the various product labels, all survey

respondents were presented with:

A 360 degree image of the product that they could turn to view the entire bottle.In addition, they could use a magnifier to hone in on any section of the 3D image

and enlarge that section of the image.

A 2-dimensional, enlarged version of the product label to facilitate reading theprinted label.

18. Throughout the survey, respondents were allowed to refer back to the

2-dimensional product label, to answer the remaining survey questions. Copies of the

four labels that were used are provided on the following page and are included in Exhibit

D.



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8

Just MayoLabel

Not Quite Mayo Label



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9

Just Delicious Dressing Label

Just Mayo Dressing Label

19. The first open-ended question asked How would you describe the product

you just saw? Please be as detailed as possible. A follow-up, open-ended question asked

if respondents had anything to add to their initial description of the product.

20. The next question was closed-ended and central to the research issue. It

was:



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10

Which of the following phrases best describes the product you just viewed?

Real mayonnaise

A spread or dressing that resembles mayonnaise but is not realmayonnaise

Tartar sauce

White horseradish sauce

Hollandaise sauce

Something else

I dont know

To avoid order bias, the first five response options were presented in random order.

21. The final question asked why the respondent selected a specific response

to the previous closed-ended question.

FINDINGS

Product Perception (Closed-Ended Question)

22. The operative question was closed-ended and, as noted above, pointedly

asked respondents to select the phrase that best described the product they had seen.

Which of the following phrases best describes the product you just viewed?

Real mayonnaise

A spread or dressing that resembles mayonnaise but is not realmayonnaise

Tartar sauce

White horseradish sauce

Hollandaise sauce

Something else

I dont know

23. Respondents who viewed Hampton CreeksJust Mayoproduct were

significantly more likely than those who saw the Just Delicious Dressing and Not

Quite Mayo labels to say it was real mayonnaise. As shown in the table below, over



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11

half (53.7%) the respondents who viewed the Just Mayoproduct, offered this response.

The full data set that includes the results from the survey is provided as Exhibit E.

Q4. Phrase That Best Describes Product Viewed

Just

Mayo

Just

Delicious

Dressing

Not

Quite

Mayo

Just

Mayo

Dressing

Real mayonnaise 53.7% 10.2% 5.8% 41.5%

A spread or dressing that resemblesmayonnaise but is not realmayonnaise

45.9% 81.6% 90.3% 57.6%

Tartar sauce 0.0% 1.0% 0.0% 0.0%

Horseradish sauce 0.0% 0.5% 0.0% 0.0%Hollandaise sauce 0.0% 0.0% 0.0% 0.0%

Something else 0.0% 5.3% 3.4% 0.5%

I don't know 0.5% 1.5% 0.5% 0.5%

n= (total 822) 205 206 206 205

24. Respondents who saw the product name, Not Quite Mayo, were least

likely to say the item was real mayonnaise only 5.8% selected this response. Nine in

ten respondents who viewed this label (90.3%) indicated the best description was a

spread or dressing that resembles mayonnaise but is not real mayonnaise, showing that a

prominent disclaimer that the product is not quite, rather than just, can be effective at

communicating to consumers the truthful nature of the product.

25. The 5.8% who viewed the Not Quite Mayo label and who said the product

was real mayonnaise may be considered noise or guessing. Even when people were

told the product was not quitemayonnaise, a certain percentage (5.8%) still responded

that itwas real mayonnaise, indicating that they were not as attentive as other

respondents to the name on the product label. Subtracting the 5.8% from this group who



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12

said the product was real mayonnaise from the 53.7% in the group who viewed the Just

Mayolabel and selected this answer, yields 47.9% who identified Just Mayoas real

mayonnaise, after adjusting for noise or guessing attributable to the use of the word

just instead of not quite.

26. The Just Mayo Dressing label tested whether adding the word Dressing

toJust Mayowould affect consumers perceptions of the product. That addition

marginally diminishes, but does not eliminate, the propensity of consumers to identify

Just Mayoas real mayonnaise (41.5%). I, therefore, tested the Just Delicious Dressing

label to determine the effect of completely eliminating the word mayo. In this group,

where Delicious Dressing was substituted for Mayo on the product label (Just

Delicious Dressing), 81.6% of respondents said the product was a spread or dressing

that resembles mayonnaise but is not real mayonnaise and only 10.2% said the product

was real mayonnaise. Subtracting the 10.2% from this group who said the product was

real mayonnaise from the 53.7% in the group who viewed theJust Mayolabel and

selected this answer, yields 43.5% who identified Just Mayoas real mayonnaise. Thus,

I conclude removing the word mayo from the product name and replacing it with

Delicious Dressing substantially improves respondents understanding that the product

is a spread or dressing resembling mayo.

27. To further assess the level of noise or guessing, I am currently testing an

additional label that replacesJust Mayowith Just Dressing, and will include the results

from that testing in a supplemental declaration to be submitted with Unilevers reply

brief.



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13

CONCLUSION

28. Based on responses to the closed-ended question about the nature of the

product, it is apparent that a majority of consumers (53.7%) who saw the label Just Mayo

mistakenly believed the product was real mayonnaise. Product perception was

substantially altered only when a name was used that more accurately described the

product (Not Quite Mayo) or when the word mayo was changed entirely (Just

Delicious Dressing). In the group that viewed the Not Quite Mayo label, only 5.8% of

respondents said the product was real mayonnaise; among respondents who viewed the

Just Delicious Dressing label, 10.2% offered this response. Subtracting these levels of

confusion from the 53.7% level of confusion in the group that viewed the Just Mayolabel

yields a difference of about 43.5% to 47.9%. These differences demonstrate that

consumers are confused by the nameJust Mayo.

ADDITIONAL BACKGROUND INFORMATION

29. I received my B.S. degree in Economics from the University of

Pennsylvania, my M.B.A. degree from New York University, and my Ph.D. degree in

Business Administration from Pennsylvania State University. I was editor of theJournal

of Public Policy & Marketingfrom 1992 to 1995, and I was Associate Editor ofThe

Journal of Consumer Affairsfrom 1998 to 2001.

30. From 1976-79, I served as an in-house marketing expert at the Food and

Drug Administration (FDA) and at the Federal Trade Commission (FTC), where I

evaluated consumer perception of advertising and product labels and designed and



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EXHIBIT A



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June 2014

MICHAEL B. MAZIS

ADDRESS

1111 Locust Street #8HPhiladelphia, PA 19107(215) 925-1747 (Tel)(301) 520-6414 (Mobile)e-mail address: [email protected]

EDUCATION

B.S. in Economics, June, 1964University of Pennsylvania, Wharton School

Master of Business Administration (M.B.A.) June 1966New York University, Graduate School of Business Administration

Ph.D. in Business Administration, December 1971The Pennsylvania State UniversityMajor Field: MarketingMinor Fields: Social Psychology/Quantitative Business Analysis

PROFESSIONAL POSITIONS

Professor Emeritus of Marketing, June 2008 to presentProfessor of Marketing, August 1981 May 2008Chair, Department of Marketing, June 1980 - August 1989; May 1998 - May 1999;

September 2004 - August 2006Associate Professor of Marketing, September 1979 - August 1981The American UniversityKogod School of BusinessWashington, D.C.

Chief, Marketing and Consumer Research, July 1977 - August 1979Office of Policy Planning and EvaluationFederal Trade CommissionWashington, D.C.



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2

Resident Consultant, February 1977 - July 1977Division of National AdvertisingBureau of Consumer ProtectionFederal Trade CommissionWashington, D.C.

Economist, June 1976 - February 1977Division of Drug AdvertisingBureau of DrugsFood and Drug AdministrationRockville, Maryland

Associate Professor of Marketing, September 1974 - June 1976Assistant Professor of Marketing, September 1971 - August 1974University of FloridaGainesville, Florida

Marketing Research Analyst, September 1965 - August 1968Warner-Lambert Pharmaceutical CompanyMorris Plains, New Jersey

EDITORSHIPS

Editor,Journal of Public Policy & Marketing, 1992-1995.

Michael B. Mazis., ed.,Journal of Public Policy & Marketing, Vol. 10 (Number 1, 1991),special conference issue.

Associate Editor,The Journal of Consumer Affairs, 1998-2001.

Michael B. Mazis, ed., Proceedings of 1982 American Psychological Association Conference,Division 23 (Consumer Psychology).

Louis Morris, Michael Mazis and Ivan Barofsky, eds., Product Labeling and Health Risks,Banbury Center, Cold Spring Harbor Laboratory, New York, 1980, 328 pages.



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GRANTS

Michael B. Mazis, Evaluating Health Warning Labels for Alcoholic Beverages, NationalInstitute on Alcohol Abuse and Alcoholism, September 1989-September 1992 ($700,000) andgrant supplement, 1990-1992 ($65,000).

Michael B. Mazis, Marketing and Public Policy: Issues for the 1990's, American MarketingAssociation, to fund workshop in Washington, D.C., August 1990 ($500).

PROFESSIONAL PUBLICATIONS

1. Stephen Miller, Michael B. Mazis and Peter L. Wright, Perceptual Distortion in theDevelopment of Brand Attitudes: A Cognitive Model, in David L. Sparks (ed.), Broadening

the Concept of Marketing, American Marketing Association, 1970, p. 119 (abstract).

2. Michael B. Mazis and Robert Green, Implementing Social Responsibility,MSU BusinessTopics, Vol. 13 (Winter 1971), pp. 68-76 (Reprinted in W. P. Anthony, J.B. Haynes and P. L.Wilkens (eds.)Social Responsibility of Business, General Learning Press, 1972 and A.B.Carroll (ed.),Managing Corporate Social ResponsibilityLittle, Brown and Company,1977).

3. Stephen Miller, Michael B. Mazis, and Peter L. Wright, The Influence of Brand Ambiguityon Brand Attitude Development,Journal of Marketing Research, Vol. 8 (November 1971),pp. 447-9.

4. Michael B. Mazis, Decision-Making Role and Information Processing,Journal ofMarketing Research, Vol. 9 (November 1972), pp. 447-9.

5. Michael B. Mazis, and Timothy W. Sweeney, Novelty and Personality with Risk as aModerating Variable, in Boris W. Becker and Helmut Becker (eds.) Marketing Education

and the Real World, American Marketing Association, 1972, pp. 406-11.

6. Michael B. Mazis and R. Eugene Klippel, Variable Modular Testing: A New Method forIncreasing Student Motivation and Learning in Large Classes, in Boris W. Becker andHelmut Becker (eds.),Marketing Education and the Real World, American MarketingAssociation, 1972.

7. Michael B. Mazis and Robert B. Settle, Consumer Reaction to Restriction of ChoiceAlternatives, in M. Venkatesan (ed.),Proceedings, Third Annual Association for ConsumerResearch Conference, 1972, pp. 417-27.



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8. Michael B. Mazis and Marilyn Beutenmuller, Attitudes Toward Women's Liberationand Perception of Advertisements, in M. Venkatesan (ed.), Proceedings, ThirdAnnual Association for Consumer Research Conference, 1972, pp. 428-35.

9. Michael B. Mazis, Cognitive Tuning and Receptivity to Novel Information,

Journal of Experimental Social Psychology, Vol. 9 (July 1973), pp. 307-19.

10. Michael B. Mazis, Robert B. Settle and Dennis C. Leslie, Elimination of PhosphateDetergents and Psychological Reactance,Journal of Marketing Research, Vol. 10(November 1973), pp. 390-5.

11. Michael B. Mazis, Dan M. Smith and Kenneth C. Cosgrove, The Influence ofPersonality, Interviewer Race and Respondent Race on Responses to a Racially-Oriented Questionnaire, in Thomas V. Greer (ed.), Combined Proceedings,American Marketing Association, 1973, pp. 309-13.

12. Michael B. Mazis and Dan M. Smith, A Comparison of General and ProductSpecific Risk Measures in the Prediction of Gasoline Purchases, in Robert L. King(ed.),Advances in Consumer Proceedings, American Marketing Assoc., 1973, pp.309-13.

13. Michael B. Mazis and R. Eugene Klippel, Instrumentality Theories and ConsumerAttitudes: Comparing Alternative Models, in Peter L. Wright (ed.),Advances inConsumer Research, Vol. 1, Association for Consumer Research, 1973, pp. 346-7(abstract).

14. Michael B. Mazis and John Faricy, Consumer Response to the Meat Boycott, inRonald C. Curhan (ed.),Combined Proceedings, American Marketing Association,1974, pp. 329-33.

15. Michael B. Mazis, Anti-Pollution Measures and Psychological Reactance: A FieldExperiment,Journal of Personality and Social Psychology, Vol. 31 (April 1975),pp. 654-60. (Abstract published inPsychology Todayand Human Behavior;conducted radio interview on Canadian Broadcasting Corporation's "As It Is"concerning the article. Reprinted inExploring Social Psychology: The Readings,Steve L. Ellyson and Amy Halberstadt, editors, McGraw-Hill, 1994.)

16. Michael B. Mazis, Review of David A. Aaker and George S. Day eds.,Consumerism: Search for the Consumer Interest, Journal of Marketing, Vol. 39(April 1975), p. 113.

17. Michael B. Mazis, Olli T. Ahtola and R. Eugene Klippel, A Comparison of FourMulti-Attribute Models in the Prediction of Consumer Attitudes,Journal ofConsumer Research, Vol. 2 (June 1975), pp. 38-52.



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18. John Faricy and Michael B. Mazis, Personality and Consumer Dissatisfaction: AMultivariate Approach, in Edward M. Mazze (ed.),Combined Proceedings,American Marketing Association, 1975, pp. 202-5.

19. Dan M. Smith and Michael B. Mazis, Racial Self-Identification and Self-Concept by

Means of Unobtrusive Measures,The Journal of Social Psychology, Vol. 98(1976), pp. 221-8.

20. Michael B. Mazis and Janis Adkinson, An Experimental Evaluation of a ProposedCorrective Advertising Remedy,Journal of Marketing Research, Vol. 13 (May1976), pp. 178-83 (Reprinted in Richard J. Lutz, editor,Contemporary Perspectivesin Consumer Research, Kent Publishing Company, 1981).

21. Michael B. Mazis and John H. Faricy, Teaching the Consumer Behavior Course: AProper Blend of Theory, Applications and Presentation, for Special Education IssueofMarketing News(July 30, 1976).

22. Joel B. Cohen, Olli T. Ahtola, Michael B. Mazis and Lawrence J. Severy, ExtendedExpectancy-Value Approach to Contraceptive Alternatives in Proceedings of the84th Annual American Psychological Association Convention, AmericanPsychological Association, 1976 (abstract).

23. Peter H. Rheinstein and Michael B. Mazis, Regulation of OTC Advertising: TheFDA 'Prescription',Journal of the American Pharmaceutical Association, Vol. 16(September 1976), pp. 505-6, 524-5.

24. Louis A. Morris, Michael B. Mazis and Evelyn Gordon, A Survey of the Effects ofOral Contraceptive Patient Information,Journal of the American Medical

Association, Vol. 238 (December 5, 1977), pp. 2504-8.

25. Michael B. Mazis, Louis A. Morris and Evelyn Gordon, Patient Recall andAttitudes about Two Forms of Oral Contraceptive Patient Information, MedicalCare, Vol. 16 (December 1978), pp. 1045-54.

26. Albert Wildt and Michael B. Mazis, Determinants of Scale Response: Label vs.Position,Journal of Marketing Research, Vol. 15 (May 1978), pp. 261-7.

27. Michael B. Mazis and Dennis McNeill, The Use of Marketing Research in FTCDecision making, Subhash C. Jain (ed.),Research Frontiers in Marketing:

Dialogues and Directions, American Marketing Association, 1978, pp. 308-11.

28. Michael B. Mazis, Overview of `Can and Should the FTC Restrict Advertising toChildren's Workshop, in William L. Wilkie (ed.),Advances in Consumer

Research, Vol. 6, Association for Consumer Research, 1978, pp. 3-6.

29. Kenneth L. Bernhardt and Michael B. Mazis, Evaluating Consumer ProtectionPrograms, in Thomas C. Kinnear, et. al. (eds.), Public Policy Issues in Marketing,



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Division of Research, Graduate School of Business Administration, University ofMichigan, 1979, pp. 48-62.

30. Michael B. Mazis, Effects of Information on Product-Related Perceptions, in JerryC. Olson, ed.,Advances in Consumer Research, Vol. 8, Ann Arbor, Michigan:

Association for Consumer Research, 1980, pp. 538-40.

31. Michael B. Mazis and Louis A. Morris, Evaluation of the Food and DrugAdministration's Patient Package Insert Program,Proceedings, 1980 AmericanPsychological Association, Division 23.

32. Michael B. Mazis, The Future of Consumer Protection Regulation in Kent B.Monroe, ed.,Advances in Consumer Research, Vol. 9, Ann Arbor, Michigan:Association for Consumer Research, 1981, pp. 455-7.

33. Kenneth Bernhardt, Thomas Kinnear, Michael Mazis and Bonnie B. Reece, Impact

of Publicity on Corrective Advertising Effects, in Kent B. Monroe, ed., Advances inConsumer Research, Vol. 9, Ann Arbor, Michigan: Association of ConsumerResearch, 1981, pp. 414-15.

34. Michael B. Mazis, An Overview of Product Labeling and Health Risks, in LouisMorris, Michael Mazis and Ivan Barofsky, eds., Labeling and Health Risks, BanburyCenter, Cold Spring Harbor Laboratory, Cold Spring Harbor, New York, 1980, pp. 1-9.

35. Michael B. Mazis, Richard Staelin, Howard Beales and Steven Salop, A Frameworkfor Evaluating Consumer Information Regulation, Journal of Marketing, Vol. 45(Winter 1981), pp. 11-21.

36. Howard Beales, Michael B Mazis, Steven C. Salop and Richard Staelin, ConsumerSearch and Public Policy, Journal of Consumer Research, Vol. 8, (June 1981), pp.11-22.

37. Michael B. Mazis and Richard Staelin, Information Processing Principles for PublicPolicy Making,Journal of Public Policy & Marketing, Vol. 1 (1982), pp. 3-14.

38. Michael B. Mazis, Effectiveness of Required Information Disclosures toConsumers, in Paul N. Bloom, ed.,Consumerism and Beyond: Research

Perspectives on the Future Social Environment, Cambridge, Mass.: MarketingScience Institute, 1982, pp. 75-8.

39. Michael B. Mazis, Dennis McNeill and Kenneth Bernhardt, Day-After Recall ofListerine Corrective Commercials,Journal of Public Policy & Marketing, Volume2 (1983), pp. 29-37.



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40. William L. Wilkie, Dennis McNeill and Michael Mazis, Marketing's 'Scarlet Letter':The Theory and Practice of Corrective Advertising,Journal of Marketing, Vol. 48(Spring 1984), pp. 11-31.

41. Michael B. Mazis, Analysis of Medical Consumer Behavior, in Thomas Kinnear,

ed.,Advances in Consumer Research, Vol. 11, Ann Arbor, Michigan: Associationfor Consumer Research, 1984, pp. 235-7.

42. Ronald Hill and Michael B. Mazis, Measuring Emotional Responses toAdvertising, in Richard Lutz, ed.,Advances in Consumer Research, Vol. 13,Association for Consumer Research, 1986, pp. 164-69.

43. Kenneth Bernhardt, Thomas Kinnear, and Michael Mazis, A Field Study ofCorrective Advertising Effectiveness,Journal of Public Policy & Marketing, Vol.5, (1986), pp. 146-62.

44. Michael Mazis, Overlooked Mechanisms for Conveying Information to Consumersin E. Scott Maynes, ed.The Frontier of Research in the Consumer Interest,Columbia, Missouri: American Council on Consumer Interests, 1988, pp. 225-230.

45. Louis A. Morris, Michael B. Mazis and David Brinberg, Risk Disclosures inTelevised Prescription Drug Advertising to Consumers,Journal of Public Policy &

Marketing, Vol. 8 (1989), 64-80.

46. Michael B. Mazis, The

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