Navigating the Regulations: Selling CBD Personal Care Products

Some major retailers, like Walgreens, CVS, Ulta Beauty, and Urban Outfitters, have already started selling hemp-derived CBD products, including personal care products like lotions and moisturizers. These CBD products are an understandably attractive entry point for product makers and retailers alike. Because they often have fewer regulatory implications than ingested products like dietary supplements or food products, personal care products are perceived to hold less risk for those looking to enter the fast-growing CBD market. 

CBD product sales in the U.S. are
forecast to grow to $23.7B by 2023.
— Brightfield Group

But marketing a CBD product before FDA regulations are in place is tricky. While whether to move forward or take a wait-and-see approach is something each organization must decide for itself, you can inform your decision making by understanding how the FDA views personal care products. 

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Drug or Cosmetic: An Important Distinction

The term “personal care products” covers a broad range of goods typically found in the health and beauty section of supermarkets, drugstores, and department stores. Consumers typically lump together everything from body lotion and antiperspirants to toothpaste and acne treatments under this single category. But the FDA classifies these same products as belonging to one or both of two distinct categories: cosmetics and drugs.

The primary difference between a cosmetic and a drug lies in the intended use of the product. The FDA’s definition of a cosmetic is any product or any component of a product that’s intended to be “rubbed, poured, sprinkled, or sprayed on, introduced into, or otherwise applied to the human body or any part of the human body for cleansing, beautifying, promoting attractiveness, or altering appearance.” This includes products like skin moisturizer, perfume, eye makeup, nail polish, hair color, toothpaste, and deodorant. Of particular importance, while there are laws and regulations for cosmetics, cosmetic products do not require FDA approval before being introduced to the market.

In contrast, the FDA defines drugs as “articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease” and “articles (other than food) intended to affect the structure or any function of the body of man or other animals.” Using this definition, you can assume that any product—whether it’s ingested, injected, or even applied topically—that claims to actually change the structure or function of the body or any of its parts (like the skin) or that claims specific medical benefits will be regulated as a drug.

Prudent Marketing: The Key to Selling Hemp-derived CBD Personal Care Products

As evidenced by the FDA’s recent warning to Curaleaf, one of the largest American cannabis companies, the claims you make about the CBD products you sell—in other words, your marketing messages—are where the rubber meets the road. The FDA cited Curaleaf with “illegally selling” CBD products because they used “unsubstantiated claims” that the products treat a range of medical issues, including cancer, Alzheimer’s disease, and pet anxiety.

The Curaleaf case underscores the significance of understanding the difference between a cosmetic and a drug from the FDA perspective. Those companies making claims about medical benefits—and in doing so positioning themselves as drugs, whether knowingly or not—are most likely to catch the FDA’s attention. And understandably so since these products have different regulatory standards and invite greater concerns about safety and effectiveness.

Until the FDA makes a clear ruling on CBD usage, the more prudent course of action then for personal care product manufacturers may be promoting other product benefits. For example, you could highlight quality and purity through your use of only certified organic CBD and your ability to provide transparency in your supply chain.
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