Unpackaged Cosmetic Products

2015-03-28-lush-bath-bombsWe all know that the Fair Packaging and Labeling Act requires that all consumer products (including cosmetics) have the identity of the product and the net contents on the front, the name and address of the manufacturer somewhere on the label.  Cosmetics also require the ingredients to be listed.

Here’s a question that has come up more than once:  How do stores that carry unwrapped products in bins with just signs get away with it?

Good question.

Let’s take a look at how they might (or might not) be complying with the actual regulations or at least the intent of the law.

What is the intent of the law?

The statement of intent on the Fair Packaging and Labeling Act (which underlies the net weight declaration regulations for the FTC and the FDA) says:

Informed consumers are essential to the fair and efficient functioning of a free market economy. Packages and their labels should enable consumers to obtain accurate information as to the quantity of the contents and should facilitate value comparisons. 1 [emphasis added]

So, the idea is that the consumer can be accurately informed of the net contents so they can decide if it’s fairly priced and good value (to them). Prior to the law, products didn’t always say how much was in the package — think of big box small contents or the infamous double-walled jar that is 2-3 times bigger on the outside than on the inside.

The FPLA specifies that:

The net quantity of contents (in terms of weight or mass, measure, or numerical count) shall be separately and accurately stated in a uniform location upon the principal display panel of that label…

What about the regulations?

Truth is, the regulations were written before anyone was selling cosmetic (or even soap) type products loose and in bins or baskets. At the time they were written, as far as I can tell, there was a general expectation that all products sold (except for some food products like fruits, vegetables and meats) were individually packaged. And you’ll note that there are some regulations about how fresh fruit is displayed, priced and how it shows on your register tape that does give accurate quantity information.

There isn’t a “law” that says that all products must be packaged. There IS a law that says that the consumer must be informed of the quantity of contents.

There are regulations in place implementing the law which state how the quantity of contents must be displayed on a packaged product. However, there aren’t regulations on what to do with an unpackaged product and, to the best of my knowledge, there aren’t any court cases or other guidances that clarify any “official” position on it.

What would be “best practice”?

Taking into account the stated intent of the law, the existing labeling regulations for consumer commodities (including cosmetics) and comparable regulations for other unpackaged products, I’d think 2  the best practices would include:

  • Informing the consumer of the net contents.
  • Providing the consumer with the name and address of the manufacturer, in such a way as they have it when they get home (in case there are any problems).
  • For cosmetics, providing the ingredient list to the consumer on the display in some fashion (in case the ingredients would affect their purchase one way or the other).
  • For cosmetics, providing the consumer with the ingredient list for each product purchased (so when they take it home they will have the ingredient list in case of any issues).

How do they “get away” with it?

I suppose there are some retail stores (and maybe people at craft shows and fairs) that intentionally (and often successfully) try to deceive or mislead by omitting necessary information and get away with it because there just aren’t enough state and federal inspectors to catch everyone.  I truly believe, though, that people and businesses trying to intetionally deceive are in the minority.

Then there are those stores and individuals who don’t understand the laws and regulations …. but would try to follow them if they knew what they were.  They do usually attempt to inform their customers, with signage and verbally and aren’t trying to hide anything.

Finally, there are the stores that have figured out a way to reasonably comply with the intent of the law. The last time I was in a Lush store (years ago) the signs were informative and when I purchased, the cashier printed labels (like deli labels) for each product that I purchased. It showed the name of the product, ingredients, weight and price, and (of course) had the Lush logo and information on it.  When I looked at pix online, there were many of Lush items that were in bags with deli-like labels.  To me, that seems to fulfil the intent of the law and regulation.

What can you do?

If you are selling “naked” products, make sure you have signage up that tells the net content of the products (“4 oz soap bars” or “6 oz bath bombs”) and (for cosmetics) have the ingredient list clearly displayed.

When a consumer purchases, provide each one with the required information including:

  • what the product is,
  • the net contents,
  • ingredient declaration
  • your name and address

Preprinted information that gets tucked into the bag would work, or stickers that go on the outside on a single size bag for the individual product.  If you sell enough, preprinted bags for the soap or bath bombs that contain all the information would be the easiest way.

Not only is it a requirement to provide that information to the consumer – it’s also good marketing!  After all, how is the consumer going to come back to you and buy more of that wonderful product if they don’t remember what it is or where they got it!

References   [ + ]

1. 15 USC 1451
2. Remember, I am not an attorney and am not providing legal advice here.  This is purely information based on my understanding and interpretation of the statutues and regulations. If you are going to display naked cosmetic products in bins in a retail environment, it might be prudent to contact an attorney familiar with the issues for definitive legal advice.

Comments

  1. I have a question or two:

    – Does the regulations also apply for spray/mists?
    -If I have a DBA with one name, can I have a product with a different name?

    Much appreciate your information!!!!!

    1. Author

      Sprays and mists that are applied to the human body are cosmetics, so the cosmetic regulations apply.

      Linen spray or room spray (or other similar items) that are NOT intended to be applied to the human body are consumer commodiites regulated by the FTC (for labeling and advertising) and by the Consumer Product Safety Commission for product safety.

  2. Hello Marie, I would like to make a diy kit to sell with all the ingredients and containers needed to make different items like balms, or a bath soak etc. I would be using my bulk dry ingredients and filling and labeling into smaller containers. I live in FL, am a licensed Esthetician and Clinical Aromatherapist. I can’t find anything in the regulations to say either yes or no for my state. Can you help? Many thanks!

    1. Author

      In any state but Florida, it would probably be completely acceptable. In Florida, however, I’m not sure how they would class it.

      A “cosmetic” is something that is applied to the human body to cleanse, beautify or approve appearance. Technically, that’s what will happen with the product that you are selling – so I can see how it could be considered a cosmetic and need all the cosmetic registration and manufacturer licensing required in Florida.

      On the other hand, you aren’t actually providing a product that will be applied to the human body … you would be providing a kit to make something. It’s an easy argument that the thing you’re selling is the fun and activity of MAKING, rather than the final product being USED.

      I’d suggest calling the folks in Florida and handle cosmetic manufacturer registration and see if they think you need to go through the process. Be sure to write down exactly who you talk to, the date and time, and what was discussed. I’m not sure of the regulations for taping conversations in Florida (whether one or both parties must be informed and approved), but if you can legally tape the conversation it would be a good idea. You want to document anything you are told so you have it for reference (and defense) if someone comes along later and says something different.

  3. You obviously have never been inside a lush store, otherwise you would know that the naked products get labelled on purchase and any questions you have before purchase can be answered by a floor worker.

    1. Author

      When I was in Lush, all the ingredients were listed on little cards by the products, and then also printed on labels that went on the final purchase.

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