Canada: Cosmetic Claims vs. Drug Claims: Common Pitfalls

Bottom Line: Advertising within the cosmetic and drug industries can be confusing as there are strict rules as to what may and may not be said for each category of products. Drugs must be advertised primarily for their therapeutic effects and cosmetics only for their superficial effects. However, as drugs increasingly compete on as many plains as possible and cosmetics strive to fulfill women's most fervent skin and hair dreams, marketers strain against the bounds and the regulators strain back. This discussion may serve as a helpful road maker if you're navigating the maze of rules.

COSMETIC CLAIM FAUX PAS

Cosmetics are defined in the Food and Drugs Act, essentially, to include any substance used to cleanse, improve or alter the complexion, skin, hair or teeth, including deodorants and perfumes. One of the common pitfalls associated with cosmetic advertising is making claims that tiptoe beyond cosmetic territory and land in drug terrain – most often by implying a physiological effect.

According to Health Canada, claims are cosmetic in nature if they describe the effects of the product in the context of appearance or their sensory benefits and do not attribute any therapeutic or organic effect to the product. (See Guidelines for Cosmetic Advertising and Labelling Claims.)

For example, a skin scrub can claim to make skin look younger and fresher, but cannot claim to actually make skin younger.

Similarly, for vitamins, minerals or antioxidants found in cosmetics, claims can be made regarding how the ingredient produces a cosmetic benefit; however, references to any therapeutic or medicinal effect of the ingredient are prohibited.

Drugs, by contrast, are defined to include, among other things, any substance used (or represented for use) in the diagnosis, treatment or prevention of disease OR restoring, correcting or modifying organic functions. It's the latter branch that serves as a big, enticing pool of quick sand for cosmetics, as talk of fiddling with what is going on beneath the surface of the skin or in the functions of the body or skin are considered to be "modifying organic functions" and therefore off limits for cosmetics – unless they want to go through the drug approval process.

DRUG CLAIM FAUX PAS

Common pitfalls of drug advertising include claims that mislead consumers as to the character or effectiveness of the product. In deciding what drug claims are acceptable, Health Canada aims to ensure that information provided to consumers helps them make informed and appropriate decisions about their purchases.

Based on this guiding principle, advertisements must always include the drug's therapeutic effect. Although cosmetic claims may be presented in some cases, Health Canada requires the emphasis to always be on the drug's therapeutic action. For instance, dandruff shampoo may claim to control dandruff flakes and have a moisture-rich formula for shiny hair, however it is unacceptable for the same product to simply claim it has a moisture-rich formula.

Furthermore, drug claims must not mislead consumers about the product's duration of action or onset of action. For example, a drug may claim to relieve headaches for up to eight hours, but cannot claim to relieve headaches all day long.

Lastly, with respect to the efficacy of a product, drug claims must not exaggerate the degree of relief or benefit that may be obtained from using the product. For example, a product may claim to help keep skin clear of new acne pimples, but cannot claim to cure acne.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.