Canada Cosmeceuticals

Are skin-care creams cosmetics, pharmaceuticals or natural health products?

Take a stroll down the cosmetics aisles of some of Canada's largest department stores and pharmacies and you'll be hard-pressed not to notice the stacks of scientific-sounding, sleekly packaged skin-care products that line the shelves. Dubbed “cosmeceuticals” by the beauty industry–a deliberate word play on cosmetics and pharmaceuticals–these pricey “miracle creams” are the latest craze among youth-obsessed baby boomers looking for ways to stave off the signs of aging.

The growing consumer appetite for some of these anti-wrinkle products, however, has furrowed the brows of unsatisfied customers and government regulators who charge the products are being marketed more like drugs than cosmetics. Meiselman, Denlea, Packman, Carton & Eberz–a White Plains, N.Y., law firm– recently filed a class-action lawsuit in United States Federal Court against the Utah-based manufacturers of StriVectin-SD–a top-selling anti-wrinkle cream that retails for about $200 in Canada. The product, which was originally formulated for stretch marks and is marketed under the catchy trademark, “Better than Botox?” has also caught the attention of authorities north of the border who are concerned that StriVectin's claims imply therapeutic benefit–a contravention of Health Canada's regulations. The federal department, which is responsible for ensuring cosmetics marketed in Canada comply with the Food and Drugs Act and the cosmetics regulations, has asked manufacturer Klein-Becker USA to “tone down” its advertising and labelling claims, or risk having its product banned.

In Canada, where the entire personal-care sector–including colour cosmetics, hair-care products, sunscreens, toothpastes, fragrances, antiperspirants and skin-care products–is worth an estimated $5.3 billion annually in retail sales, the debate over what is a cosmetic versus a drug or natural health product has become a hot topic. The law currently defines a cosmetic as a product that “cleanses, improves or alters the complexion, skin, hair or teeth” while a drug is a product that claims to modify body functions and prevent or treat disease. The Canadian Cosmetic, Toiletry and Fragrance Association–a powerful 175-member trade and lobby group–has been leaning on Ottawa for years to classify all personal-care products as cosmetics. “In Europe…fluoride-based toothpastes are considered to be cosmetic even though there's some physiological activity with the fluoride,” says Carl Carter, the association's vice-president of government affairs. “These things are so low risk, the chemistry is so well understood, there's no reason that these products shouldn't be regulated as cosmetics.”

Carter argues that Canadian cosmetic companies “may be losing out in terms of global production” in the lucrative personal-care industry by being forced to comply with one of three sets of “confusing” regulations that pass on “tens of millions” of dollars in additional costs to retailers and delays the time it takes to get a product approved or to market. He's hoping that changes to existing regulations through the Legislative Renewal Act, an initiative of Health Canada with input from stakeholders–will ultimately make our personal-care sector more competitive. In the United States alone, cosmeceutical sales are expected to rise a whopping 33% to US$16.5 billion in 2010, from US$12.4 billion in 2004.

In the meantime, both Health Canada and Industry Canada continue to monitor marketing claims made by cosmetic products to ensure they don't violate the “false or misleading” tenets of the Competition Bureau's Consumer Packaging and Labelling Act. “With a cosmetic product, we do allow a certain amount of puffery, like, 'it increases your manliness' or 'it gives you the aura of beauty,' ” says Luisa Carter-Phillips, head of Health Canada's cosmetics program. “But if we're dealing with misleading [claims] in terms of health and safety, like you're giving the wrong directions for safe use or you're suggesting it's a treatment when it really isn't, then that's when we would come in.”

The health and safety of consumers is Health Canada's top priority, she adds, and if the department finds any excess concentrations of ingredients that match a “hot list” of 500 restricted or prohibited compounds in cosmetics, they are taken off the market “right away.” Says Carter-Phillips: “The company is responsible to ensure that their product is safe; you want your name to have a good reputation.” Image, after all, is everything.