The global market for anti-aging products and treatments is estimated at $11.02 billion and expected to reach $16.38 billion by 2030. With viral skin care routines and “get ready with me” videos surging on social media, and brands increasingly touting trendy new ingredients, the market for anti-aging products and treatments is only expected to increase. But, as more consumers seek to turn back or prevent the march of time, there are legal risks surrounding what brands can claim. Here’s what the spa industry needs to know about promoting anti-aging products and treatments.
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The global market for anti-aging products and treatments is estimated at $11.02 billion and expected to reach $16.38 billion by 2030. With viral skin care routines and “get ready with me” videos surging on social media, and brands increasingly touting trendy new ingredients, the market for anti-aging products and treatments is only expected to increase. But, as more consumers seek to turn back or prevent the march of time, there are legal risks surrounding what brands can claim. Here’s what the spa industry needs to know about promoting anti-aging products and treatments.
How Are Cosmetic Claims Regulated?
The US Food and Drug Administration (FDA) does not have a list of accepted claims for cosmetics or criteria on how much support brands need to make certain claims, such as scientific studies, customer surveys or third-party certifications. However, there are limits to what manufacturers can claim on product labels.
The Fair Packaging and Labeling Act (FPLA) requires that cosmetic labeling must be truthful and not misleading, and disclose all ingredients. Products that fail to comply with the FPLA are considered misbranded under the FDCA and can result in enforcement action by the FDA.
The Federal Trade Commission (FTC), which regulates cosmetic advertising under the FTC Act, can also take action against brands to enjoin what it perceives as unfair or deceptive practices, or false advertisements that are likely to mislead a reasonable consumer and material to their purchasing decisions.
Finally, depending on where the products are manufactured and/or sold, cosmetic ingredients are subject to a range of state laws.
Related: Holistic Healthy Aging in a Modern World
What Are the Risks Associated with Anti-Aging Claims?
Although anti-aging products and treatments have proved popular with consumers, companies have faced legal scrutiny for allegedly deceptive or misleading claims with respect to products marketed as “anti-aging.”
In recent years, consumers have sued the manufacturers of such products, claiming that they did not act as consumers perceived based on the product’s advertising or inclusion of specific anti-aging ingredients like collagen. Consumers have also alleged that products were misrepresented as capable of “repairing” or “regenerating” human skin, “revers[ing] the effects of aging,” “repairing past visible DNA damage” and “smooth[ing] wrinkles.” Several of these claims settled for undisclosed sums.
In addition to the risks posed by costly litigation, overbroad or unsubstantiated anti-aging claims may incur regulatory scrutiny. Both the FDA and FTC have issued warning letters to beauty manufacturers for “drug” claims, as well as overbroad or unsubstantiated claims like promising to stimulate hair growth, reduce wrinkles, prevent aging and repair skin damage. Misleading or confusing advertising claims could also result in investigations or claims by state attorneys general.
Furthermore, blurring the distinctions between cosmetics and drugs may risk subjecting products to reclassification under the FDCA, and possibly pre-market approval.
In the past several years, the FDA issued warning letters to several companies for making claims regarding anti-aging products that blurred the distinction between cosmetics—which are defined as “articles intended to be rubbed, poured, sprinkled or sprayed on, introduced into or otherwise applied to the human body for cleansing, beautifying, promoting attractiveness or altering the appearance,” and drugs, which are defined as “articles intended to affect the structure or function of the human body.”
The FDA cautioned that claims such as “clinically proven to … significantly reduce deep wrinkles in UV damaged skin” and “boost … the activity of genes and the production of youth proteins,” suggested that the products were not simply intended to beautify or alter the appearance, but intended to affect the structure and function of the body. Unless changed, these claims would subject the products to heightened regulation and pre-market approval by the FDA, as well as deceptive advertising by the FTC.
Finally, consumers under the age of 13 (“Gen Alpha” or “tweens”) increasingly embrace skin care content on social media, and state legislators are reacting to concerns that young children are using skin care products intended for an older demographic, resulting in dermatological safety issues.
This year, California proposed legislation that would require businesses to take reasonable steps to prohibit the sale to customers under the age of 13 of over-the-counter skin care products and cosmetics that advertise that they are intended to address skin aging if those products intentionally contain either (1) vitamin A and its derivatives, including, but not limited to, retinoids and retinol; or (2) an alpha hydroxy acid (AHA), including, but not limited to, glycolic acid, ascorbic acid (vitamin C) or citric acid. Although the bill failed to pass, brands should be concerned about the potential for similar laws.
What Are the Takeaways?
Companies should be aware of the potential for liability when making anti-aging claims that can be misconstrued by consumers as promising, quite literally, to turn back time.
This particularly applies to claims that emphasize the inclusion of trendy ingredients where those ingredients can be used in different ways or are intended for use by certain consumers. How certain words are perceived—or in this case, misperceived—can be almost as costly as what brands intend them to mean.
Wherever possible, companies should:
- Exercise caution when making claims that promise to fundamentally alter or affect skin function or reverse the aging process itself.
- Emphasize a product’s ability to improve the skin’s appearance or minimize the visual effects of aging.
- Think critically about all advertising and labeling claims, and consider what is being communicated to which consumers.
- Provide clear and consistent guidance to influencers about what can and cannot be said about products on social media.
Kelly A. Bonner, trial attorney with Duane Morris LLP, focuses on cross-jurisdictional and complex commercial disputes involving pharmaceutical, health-related retail and consumer branded products. Bonner is a frequent author on litigation risk and regulatory issues affecting businesses in the beauty and wellness industries.
