Can Beauty Brands Say Whatever They Want?

The skincare industry is often referred to as “The Wild West,” a world where there are no rules, where brands can run amok, doing whatever they want with little accountability. However, this extremely pervasive myth isn’t true. The reality is that there are regulations in skincare. In fact, there are more regulations today than there were even five years ago, thanks to the Modernization of Cosmetics Regulation Act (MoCRA). Because of this law, which was passed in 2022, beauty products now face stricter federal oversight to help ensure their safety. So, while cosmetic skincare is less regulated than, say, pharmaceuticals, it still does have rules.

The better question to ask is, are brands following these rules? What’s the harm to consumers? And what are the consequences if they don’t? To answer these questions, we’re going to look at two different areas in particular: marketing claims and safety. In this post, we’re diving into the first topic—we’ll save the safety discussion for a follow-up piece—and when it comes to claims, who better to talk to than the people who deal with them everyday? We reached out to three of Dieux regulatory consultants, two based in the United States and one based in London, to get a read on the current landscape.

What’s the Difference Between a Cosmetic and a Drug in Skincare?

“A cosmetic product is intended to cleanse, beautify, promote attractiveness, or change the appearance of the body, skin, hair, nails, or teeth,” explains Rebecca Flemming, an independent consultant with experience in regulation at large multinationals. Drugs are “intended to diagnose, cure, mitigate, treat, or prevent disease, or to affect the structure or function of the body.” So, basically, drugs cure and cosmetics change the look of something. For example, foundation works to help improve the appearance of skin evenness.

To be considered a drug, a beauty product needs to be formulated with an active ingredient at a strict, FDA-approved percentage. You’re familiar with more over-the-counter (OTC) products than you realize: sunscreen, adapalene (a retinoid), and toothpaste, just to name a few. Some products are both a cosmetic product and a drug, like anti-dandruff shampoo—it works to cleanse the hair and treat dandruff.

What Marketing Claims Can Cosmetic Products Make? 

There are two types of marketing claims you can make in the skincare world, a cosmetic claim—one that describes actions or improvements that can be visibly seen or felt with the use of the product; and a drug claim—any claim that directly or indirectly implies a product can make a structural or functional change to the skin. 

While this isn’t a comprehensive list, there are common words that brands should avoid when talking about their cosmetic product, explains Fleming. They suggest that the product is working on a deeper level instead of on the surface of the skin.

• Heal
• Repair
• Produce
• Synthesize
• Deeply penetrate
• Repair damage
• Increase collage production

Wait, So What About Barrier Repair?

We got mixed results here. Some regulators noted the risk of FDA interference was low; others thought the word “repair” triggered a red flag. While this terminology has become Internet slang language, a more “FDA-safe” claim would be barrier support, barrier strengthening, or barrier replenishing.

Before you get the pitchforks out for the brands that claim barrier repair, a reminder that “breaking the law” is a broad spectrum. A brand making a barrier repair claim is very different to a brand claiming their coconut-oil-beef-tallow-watermelon smoothie is “less toxic” than sunscreen and will protect your skin from cancer. It’s also different from brands adding mercury to their creams to lighten skin and selling it in the United States despite it being illegal. That being said, brands should follow the law—we don’t want to create an arms race of increasingly deranged claims.

Can a Brand Make Different Marketing Claims in Different Countries?

This is where things can get slightly confusing—not everything is a drug claim in every country. Kamal Kaur, a regulator from The Cosmetic Regulator, notes that hyperpigmentation is one skin concern where claims can change depending on where you are in the world. In the US, Kaur says it’s best if you avoid the term altogether. The better terminology to use is dark spots. While brands can’t claim to “treat” or “repair” them, they can say that their product “improves the appearance” of dark stops. In the UK, however, brands can claim to address the “appearance” of hyperpigmentation.

Can a Brand Claim That Retinol Works Similarly to Retinoic Acid?

This is another tricky one. Fleming notes that if a brand is educating on retinoids, describing how the ingredient works (retinol converts to retinal then retinoic acid before it starts working on the skin) is okay. That being said, Fleming also adds that brands should stay away from any claim that it functions the same as retinoic acid or that it stimulates collagen like retinoic acid does.

What About the Claim “Visibly Improve the Appearance of Wrinkles?”

Cosmetic brands are good to make this claim…but they need proof. Especially in the UK and EU, Kaur explains, you need claims substantiation a.k.a clinical studies that back up what you say to avoid a warning letter from the government or a lawsuit.

In fact, Kaur, Fleming, and Simone Swafford, a regulator from Vogue Regulatory, all say that if a brand wants to make stronger claims, the best way to do so is through a study that supports it.

What Happens When a Brand Makes a Claim They Can’t Support?

If that’s the case, then the brand could get a warning letter from the FDA. This is where having a regulator and legal team is super helpful. Warning letters, Kaur explains, are a serious matter, and failure to correct the violation could lead to enforcement actions. Brands have 15 days to respond with a plan. You’ll know if a brand has successfully implemented their plan if a closeout letter is posted on the FDA website.

What Brands Say Actually Does Matter

Claims can be confusing to parse through, especially with all the noise on social media. It can be hard to separate fact from fiction when you have brands claiming that they’re “Botox in a bottle” or “a facelift in a jar.” The thing to remember, though, is that there are regulations when it comes to skincare, and knowing what claims brands can or can’t make can help you find products that actually meet your needs.

At Dieux, we believe transparency builds trust, which is why we share the results from our clinical studies and focus on measurable outcomes, so you know exactly what our products can (and can’t) do for your skin.

As always, you’re Dieux-ing great.