Considering the Roadblocks Before Marketing Your Beauty or Health Product
1 Apr, 2005 By: Gregory J. Sater ResponseAs Response reported in December 2004 ("Top 50 Infomercials and Short-Form Spots"), the national infomercial and short-form spot rankings continue to be dominated by beauty, health and fitness products, from skin creams and hair trimmers to ab devices and diet supplements.
 Gregory J. Sater |
Different products and advertising claims implicate different legal issues, making it hard to generalize. However, some key legal issues must be considered before launching an advertising campaign for a beauty or health product.
Food and Drug Administration (FDA)
The FDA decides the fine line between a cosmetic, a dietary supplement and a "drug." These products are all subject to FDA scrutiny.
A cosmetic is as an article used for cleansing, beautifying, promoting attractiveness or altering the appearance without affecting the human body's "structure or function." Examples include deodorants, skin creams, perfumes and lipsticks.
A drug is defined as a product, or an ingredient thereof, which is intended to affect the body's "structure or function." Common examples include deodorants with anti-perspirant, toothpastes with fluoride and skin creams with sunscreen.
The line between the two makes a big difference in regulatory requirements. For example, prior to being marketed, a product that constitutes or contains a "drug" must obtain approval from the FDA or fall into an exception, and must be shown to be safe and effective. Its ingredients must be labeled in a specific manner, and its manufacturing must adhere to practices defined in the law.
A cosmetic does not need pre-market approval from the FDA, but is subject to recall and other remedies if it is injurious to users or if its ingredients are not labeled in compliance with the law.
Dietary supplements are also subject to the threshold question of whether they are or contain a drug, as well laws specifically aimed at their advertisements. If you sell a dietary supplement, you must have data sufficient to prove it is safe before you sell it, and you must have adequate substantiation for your advertising claims, express and implied.
Federal Trade Commission (FTC)
The FTC has authority over the advertising claims made for every kind of product, including beauty and health products, and it will take action if an advertisement is "deceptive."
The FTC examines not only the claims you expressly make, but also any "implied" claims based upon the "net impression" your ad makes upon a reasonable consumer. You must have "competent and reliable scientific evidence" to support all objective claims.
Testimonials from users of a product cannot contain representations that are false or that could not be substantiated by the advertiser if it were making the representation directly. If the experience described is atypical of the experience users will have, the testimonial must be accompanied by a disclosure that the result represented is not typical.
Competitors
You also should consider the reaction that you will get from competitors.
If your product is successful, it will engender knockoffs. The name or trademark under which you will market the product must be researched for availability and registered with U.S. Patent and Trademark offices and in other countries.
The same is true for the "look and feel" or "trade dress" of your product. Functional elements receive no trade dress protection and are free to be copied by knockoff artists (unless patented). Common, generic and non-distinctive trade dress elements also make it very difficult to prevail in a knockoff case.
Copyright filings should be made, on the earliest possible date, for all content contained in an infomercial, spot or other advertisement. Domain names that include the name of your product or a variation thereof should be registered.
You also need to look out for the established competitor. Such a competitor can scrutinize the content of your advertisement and sue you. The claim will be under the Lanham Act. In the absence of proof of significant actual consumer deception, Lanham Act violations are most often proven via expensive professional consumer surveys.
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