By announcing Allergan’s development of an eyelash-growing drug and the launch of Jan Marini’s new drug-free eyelash-conditioning product, Thursday’s piece in the Times (“Longer Lashes in a Tube, or Maybe Not”) put the spotlight on a growing battle between pharmaceutical and skin-care companies for the same turf. With drugs more commonly providing cosmetic benefits, such as Botox, Restylane, and Renova, and cosmetics mimicking drugs, the only discernable boundary remaining between the two in the moisturizer-soaked marketplace is the right to claim a product works (i.e., affects the structure and function of skin). And under the law, that’s a privilege reserved for drugs.
No doubt Jan Marini Skin Research incurred the ire of Allergan, the makers of Botox and of the lash-growing glaucoma drug supposedly used in Marini’s wildly popular Age Intervention Eyelash product. The buzz about and demand for the lash-enhancer was huge, and judging by the queues at last November’s ISPA conference, where spa directors go to learn about and shop for products, it made the company a killing. So, I suspect, when just a few weeks later on November 16 the FDA sent U.S. Marshals to the Marini warehouses and seized $2 million worth of “already embargoed” lash conditioners containing the “unapproved drug,” it wasn’t just for consumer safety, as the government agency claimed. (After all, the FDA had just announced that it would “look into” the matter of lead in lipstick, but none were recalled let alone seized.) The raid was a dramatic warning to beauty product companies not to trespass on the well-groomed lawns of drug companies.
The beauty industry has been called a wild west, because, while the FDA prohibits cosmetics from containing drugs (sunscreens and acne ingredients are a special case), it really only regulates cosmetics by its claims—hence the pervasive construction “improves the appearance of” used in skin-care marketing. (The FDA does not recognize cosmeceuticals, or skin-care products that contain drug-like ingredients). So, it’s easy to see how research-based pharmaceutical giants, which have done lengthy and expensive FDA product testing to prove safety and effectiveness, may take on the role of watchdog and informant.
And in the case of Allergan there’s been good reason to. In 2005, the FDA investigated whether Stri-Vectin-SD was billing itself as a drug, when it claimed among other things to be “better than Botox.” (Stri-Vectin now uses the grammatically permissible marketing come-on “Better Than Botox?” since it poses a question, not a declaration.) And this April, the popular Canadian brand Fusion Beauty received a warning letter from the FDA because its claims for LiftFusion products, such as Micro-injected M-Tox Transdermal Face Lift, “cause its products to be drugs”.
That’s why, even though potential patent piracy, using drugs in cosmetics, and not declaring ingredients on the label (the FDA’s three strikes against the Marini company) are troubling, the raid by U.S. Marshals on Marini Skin Research, possibly the only one on an American cosmetic company, looks like a display of product prowess by manufacturers of cosmetic drugs.
The Times article doesn’t just imply the skin-care company possibly poached Allergan’s ingredient, the paper suggests it also stole its thunder. Because the number one advantage drugs have over skin-care ingredients is that they can say they work, which is supposed to be the biggest selling point of products that require expensive prescriptions. Even if cosmetics happen to work, and Jan Marini’s new product just might, under the law the skin-care company cannot say it does. With more companies than ever competing for the same $7 billion dollars spent on beauty, it’s naïve to think last November’s raid was about consumer safety alone.