Rotten eggs and spoiled regulations

Many regulations have a natural shelf life, and when left out past their expiration dates, they tend to spoil. It simply becomes a matter of cleaning out the proverbial fridge. Identifying what is ready for the trash, however, can be tricky. Sometimes it isn’t the law itself that went sour, but its effects. Laws that look harmless on their face sometimes aren’t, and this can be a recipe for rather nefarious outcomes. Hampton Creek, manufacturer of the popular condiment “Just Mayo,” is the latest to encounter this sometimes hard-to-swallow truth.

{mosads}At issue is what can and cannot be called “mayo.” Currently, federal law defines mayonnaise, and the code of federal regulations mandates a single recipe: It must include vegetable oil, an acidifying ingredient (either vinegar, lemon juice or lime juice), and egg. In its warning letter sent to Hampton Creek in August, the Food and Drug Administration (FDA) explained that the company was in violation of federal law because its products “do not conform to the standard for mayonnaise.” The government takes specific issue with the fact that Just Mayo is made without eggs.

This entire story, as it continues to play out, raises several serious questions:

First, who is in the best position to define the recipe for mayonnaise? A simple Google search for “egg-free mayonnaise recipe” returns 1.37 million results. People make mayonnaise without eggs every day, and mayonnaise recipes clearly vary. Simply searching Google for “mayonnaise recipe” returns 33.7 million results. If any one of those people sharing their recipes wanted to sell their product, they would have one option: conform to the FDA’s mayo-with-eggs recipe or risk violating federal law.

Moreover, it’s worth noting that when mayonnaise was first popularized, its recipes did not require eggs. The FDA’s expectation that eggs be used in mayonnaise originates from federal laws written in the 1950s. However, 125 years earlier, French cookbooks offered a recipe that looks quite different from the one offered in the code of federal regulations. According to one of the original mayonnaise recipes, from the 1820 edition of Le Cuisinier Impérial, eggs were optional. It could be made with gelatin, veal demi-glaze or veal brains instead of eggs. Not exactly the standard recipe currently bolstered by the FDA.

Second, given of all the other issues the agency covers, why are the ingredients of mayonnaise catching the attention of the FDA? The answer isn’t merely a product of outmoded regulations creating barriers to food innovation. Instead, it highlights a small, yet seemingly powerful, lobby within the federal government: the American Egg Board.

Created by the Egg Research and Consumer Information Act of 1974 and overseen by the U.S. Department of Agriculture (USDA), the American Egg Board operates with the stated mission of creating “proactive programs to increase demand for eggs and egg products through research, education and promotion.”

More recently, through a 10-cent tax on each 30-dozen case of eggs sold, the board has raised tens of millions in funds to support the consumption of eggs. And it seems they’ve been putting it to use. Documents that were disclosed in response to a recent Freedom of Information Act (FOIA) request detail a nearly two-year-long effort by the board to destroy Just Mayo.

Emails as far back as 2013 detail how the board attempted to respond to what it considered a “threat” from Hampton Creek and its “competing product,” Just Mayo. During that time, the board tried a number of aggressive tactics to bring the company down. It lobbied retailers like Whole Foods and paid tens of thousands to a public-relations firm to craft messaging that food bloggers could use to convince people to avoid Just Mayo and discredit Hampton Creek.

The American Egg Board even tried to join the American Association for Sauces and Dressings. It was turned down because it doesn’t make sauces or dressing. It also tried to coordinate with Unilever — which owns Hellman’s mayonnaise — in its lawsuit against Hampton Creek. The suit was dropped when Unilever began receiving national attention as a “bully.” Ultimately, in apparent exacerbation, members of the egg industry even joked about placing a hit on Hampton Creek’s founder.

However, the board’s most effective tactic seems to have been lobbying the FDA. As one recent report described it, there is “literally a U.S. government conspiracy against vegan mayo.”

But the American Egg Board shouldn’t be blamed for this behavior. Indeed, it was set up for the explicit purpose of supporting the consumption of eggs. It is simply doing what it was created to do. A more fundamental question is why the federal government created the American Egg Board in the first place.

The American Egg Board, however, is not alone. Nearly two dozen boards are organized within the federal government for the sole purpose of convincing Americans to use particular items. From pork to popcorn to watermelon to Christmas trees, these boards use the federal government to support the success of their chosen industry.

Ultimately the FDA is freezing mayonnaise in the 1950s, allowing a nearly half-century-old law dictate the future of food. It’s difficult to justify. It becomes even harder to do so when you realize there is no health or safety issue with a product like Just Mayo. This highlights a serious — yet frequently overlooked — point that regulations often serve to protect the narrow interests of a few at the expense of consumers, other producers and innovation itself. But what should really turn stomachs is how the American Egg Board — an entity overseen by the USDA — acted in response to new competition and sought to quash innovation. Blending these two—spoiled regulations and a rotten Egg Board creates a dish certainly worth passing on.

Koopman is a research fellow on the Project for the Study of American Capitalism with the Mercatus Center at George Mason University.