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The cosmetic half

When a cosmetic becomes a drug

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The same jar of gel is a cosmetic or a drug depending on what you claim for it, and nothing about the contents settles it.

Intended use is the test

A product intended to affect the structure or function of the body, or to treat or prevent a condition, is a drug. A product intended to cleanse or beautify is a cosmetic. The intention is read from what you say, so your own copy determines your category.

The sentences that move it

  • Heals, repairs, treats, cures, or prevents anything.
  • Names a condition: sunburn, eczema, bites, rashes.
  • Claims an SPF, which is a sunscreen claim and therefore a drug claim.
  • Claims to repel insects, which moves it to the EPA rather than to drug status.

SPF on a moisturizer is the common one

Adding a sun protection claim to a cosmetic makes it a sunscreen drug product with everything that entails, including the testing. A great many products carry both propositions and they are drugs, which is the correct and expensive answer.

Testimonials do it too

Republishing a customer saying a gel healed their burn adopts the claim. That is the same mechanism the supplements property describes, operating under a different statute, and it catches the same people.

Before and after imagery carries meaning

A photograph showing a condition improving makes a claim no sentence had to make. If the image implies treatment, the implication is the claim.

Write the claims first

Decide what you intend to say, check which category that puts you in, and then formulate and package for that category. Doing it in the other order is how a cosmetic business discovers it has built a drug.

A product name can carry the claim

Calling something a burn gel or a bite treatment puts the claim in the one place you can never edit later without rebranding. Names are chosen early and reviewed last, which is the wrong way round for exactly this reason.

Check the whole impression, not the sentences

The test reads the overall impression a buyer takes away, so a clean sentence next to a suggestive image can still make the claim. Reviewing copy line by line misses it; looking at the finished page catches it.

References

21 CFR 201.327, Over-the-counter sunscreen drug products; required labeling based on effectiveness testing. Paragraph (g) makes “sunblock”, “sweatproof” and “waterproof” false or misleading; paragraph (a)(2) permits only “Water Resistant (40 minutes)” or “(80 minutes)”; paragraph (d)(2) carries the Skin Cancer/Skin Aging Alert. law.cornell.edu
21 CFR 701, Cosmetic Labeling, for the products on this shelf that are cosmetics rather than drugs or pesticides. law.cornell.edu
40 CFR 152.25, Exemptions for pesticides of a character not requiring FIFRA regulation, including the minimum risk exemption: active ingredients named with their percentage by weight, inert ingredients by their designated names, company name and contact information, and no claim to control disease-transmitting organisms. law.cornell.edu
Written from federal regulation, not from a formulation lab. A sunscreen is an OTC drug and an insect repellent is a pesticide, and both carry requirements that a cosmetic does not. Nothing here clears a specific label, and the difference between a cosmetic claim and a drug claim is narrower than it looks.