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Cosmetics, Drugs and Labels

By: Rick Van Arnam, Esq.
Posted: January 10, 2008, from the January 2008 issue of GCI Magazine.
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On Nov. 16, 2007, the U.S. Food and Drug Administration (FDA) announced that it had seized 12,682 applicator tubes of a product called Age Intervention Eyelash, worth approximately $2 million. The FDA, in its press release, alleges that the distributor was promoting the product’s use to increase eyelash growth, i.e. a drug use, and the FDA had not approved that use for this cosmetic product. This seizure is one of several enforcement actions or warnings issued by the agency in 2007 to companies for making unapproved drug claims on cosmetic-type products. Typically, these claims arise from representations of a product’s ability to provide a therapeutic or prophylactic benefit—claims usually found on the product labeling or on other promotional materials, including distributor Web sites. Once the line is crossed and a cosmetic is promoted as providing therapeutic or prophylactic uses or benefits, that product triggers FDA regulations governing drugs or products containing drugs. If those promoted uses or benefits were not pre-authorized by the FDA, then they are considered false and misleading, and the product is deemed misbranded. As the FDA’s recent actions suggest, the cost of noncompliance is high.

What’s a Cosmetic? What’s a Drug?
Discussions related to labeling issues begin with an understanding of the legal definitions of “cosmetic” and of “drug.” A “cosmetic” is an article intended to be applied to the human body for “cleansing, beautifying, promoting attractiveness, or altering the appearance without affecting the body’s structure or functions.” Products such as shampoos, perfumes and makeup fit this definition; however, not all products meeting this definition are cosmetics. Consider soap. Certain soap products, consisting primarily of an alkali salt of fatty acid and that do not make use claims other than for cleansing the human body, are not regulated as cosmetics.

A “drug” is defined in the Food, Drug and Cosmetic (FD&C) Act as an article “(A) intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease ... and (B) articles (other than food) intended to affect the structure or any function of the body of man or other animals.” Before a new drug can be marketed legally, it must be approved by the FDA as safe and effective.
But certain cosmetics satisfy both definitions. A product that is intended for use as a cosmetic but that is also intended for use to prevent or treat a disease or to affect the structure or function of the human body is regulated as a drug and as a cosmetic. The question to ask is whether the cosmetic product can exert a physical as well as a physiological effect on the user. If it can, then likely the cosmetic product is subject to both drug and cosmetic regulations. Toothpaste containing fluoride and shampoos containing an antidandruff treatment are two such examples.

A cosmetic’s intended use plays a key role in determining whether that product triggers the drug regulations. Intended use can be ascertained by reviewing claims on labels, promotional materials and Web sites. Consumer expectation and perception of a product’s intended use goes toward establishing that concept.