The classification of products is very important in navigating the regulatory landscape. Cosmetic products are often borderline with other classifications of products on the market. Furthermore, cosmetics are not an exclusive class of products – meaning they can be both cosmetics and another type of product. In this article we will go into the varying product types which border cosmetics and discuss their classification.
Classification of Cosmetic Products Series
To learn more about the differences in classification across regional regulations, explore our classification of cosmetic products series:
Classification of Cosmetic Products
Regulation
The Australian Competition & Consumer Commission (ACCC) is the regulatory/administrative body that oversees the sales of cosmetics in Australia.
The overarching piece of legislation is the Competition and Consumer Act 2010 No. 51, 1974, administered by the ACCC. This act covers the below:
- Product safety and labelling
- Unfair market practices
- Price monitoring
- Industry codes
- Industry regulation – airports, electricity, gas, telecommunications
- Mergers and acquisitions.
The main piece of legislation relating to cosmetics under the Competition and Consumer Act is the Consumer Goods (Cosmetics) Information Standard 2020. This regulation covers the below:
- Labelling requirements for cosmetics
- Definition of a cosmetic
Cosmetics are chemical substances, therefore, they are also regulated under the Industrial Chemicals (General) Rules 2019, authorised by the Industrial Chemicals Act 2019. This regulation covers the below:
- Importation and manufacture of industrial chemicals
Cosmetics are not therapeutic goods (because they’re an exclusive classification). A piece of legislation has been developed to determine whether a product is exempt from being classified as a therapeutic good: Therapeutic Goods (Excluded Goods) Determination, authorised by the Therapeutic Goods Act 1989. This regulation covers the below:
- Determines the classification of therapeutic goods: which products are not classified as therapeutic goods products.
Definition
The Consumer Goods (Cosmetics) Information Standard and the Industrial Chemicals Act 2019 defines a cosmetic as:
“a substance or preparation intended for placement in contact with any external part of the human body, including:
(a) the mucous membranes of the oral cavity; and
(b) the teeth;
with a view to:
(c) altering the odours of the body; or
(d) changing its appearance; or
(e) cleansing it; or
(f) maintaining it in good condition; or
(g) perfuming it; or
(h) protecting it.”
The Industrial Chemicals Act 2019 defines an industrial chemical as:
“any of the following:
(a) a chemical element that has an industrial use;
(b) a compound or complex of a chemical element that has an industrial use;
(c) a UVCB substance that has an industrial use;
(d) a chemical released from an article where the article has an industrial use;
(e) a naturally-occurring chemical that has an industrial use;
(f) any other chemical or substance prescribed by the rules for the purposes of this paragraph that has an industrial use.”
Examples of Cosmetic Calssification
Face Cream
‘Standard’ cosmetic products (e.g. products without any physiological action) are classified as cosmetics in Australia. They meet the definition of a cosmetic under the Consumer Goods (Cosmetics) Information Standard and the Industrial Chemicals Act 2019. Face creams and other standard cosmetics are placed in contact with the human body with a view to perform cosmetic functions, in the case of a face cream; maintaining the skin in good condition.
Anti-acne Products
Anti-acne products are defined as cosmetics as long as they do not contain any substance listed in Schedules 2, 3, 4 or 8 to the Poisons Standard. The Poison Standard (SUSMP) regulates the availability and accessibility of substances that can be used as ingredients in therapeutic goods (medicines). If products contain substances in these schedules, they would fall under the classification of therapeutic goods, not cosmetics.
An example of this is salicylic acid listed in Schedule 4:
“SALICYLIC ACID in preparations for dermal use except in preparations containing 40% or less of salicylic acid.”
Because most cosmetic preparations contain salicylic acid below 40%, it is allowed in cosmetic products, as long as the product is not making any therapeutic claims.
Cosmetic products cannot claim to have therapeutic benefits. You can only claim a product to have “anti-acne” benefits when the product is marketed as controlling or preventing acne solely through cleansing, moisturizing, exfoliating, or drying the skin – not through a mechanism of action which kills bacteria or similar non-cosmetic mechanism.
Anti-dandruff Products
Anti-dandruff products can be marketed as cosmetics as long as they do not contain any substances listed in Schedules 2, 3, 4 or 8 to the Poisons Standard, and they do not claim to have any therapeutic benefits. They can only be advertised or presented for supply as controlling or preventing dandruff through cleansing, moisturising, exfoliating or drying the scalp.
Antiperspirant Products
Antiperspirant products are those products designed to minimise perspiration. These are classified as cosmetic products in Australia because one of the functions of a cosmetic is “altering the odours of the body” and the product is applied to the human body.
Antiperspirants which claim to be designed/suited for people with hyperhidrosis are not considered cosmetics. Hyperhidrosis is a condition caused by the overactivity of the sympathetic nervous system. Because the product is designed to treat a condition, its classification is that of a medicine or therapeutic good, not a cosmetic.
BB Cream with SPF
Secondary sunscreens (product’s whose main function is not sun protection) are classified as cosmetics. The main function of a BB cream would be to provide a skin tint and moisturise the skin, the sun protection factor (SPF) is simply an added benefit which protects the skin. Primary sunscreens are regulated as therapeutic goods.
Classification of Therapeutic Goods
Regulation
The Therapeutic Goods Administration (TGA) is the regulatory/administrative body that oversees the sales of therapeutic goods (medicines) in Australia.
The overarching piece of legislation for therapeutic goods is the Therapeutic Goods Act 1989. This act covers the below:
- Drugs
- Vitamins
- Herbal medicinal products
- Food/nutrition supplements
The main piece of legislation relating to therapeutic goods is the Therapeutic Goods Regulation 1990, authorised by the Therapeutic Goods Act 1989. This regulation covers the below:
- Determines if a medicine is defined as a prescription, complementary or over-the-counter (OTC) medicine.
- Pre-market assessment of medicines.
- Post-market monitoring of medicines.
Products which fall under the classification of a therapeutic good generally need pre-market approval and inclusion in the Australian Register of Therapeutic Goods (ARTG).
The Therapeutic Goods (Permissible Ingredients) Determination, authorised by the Therapeutic Goods Act 1989 lists which ingredients can be used in therapeutic goods products. This regulation cover the below:
- Lists permissible ingredients in therapeutic goods
The Therapeutic Goods (Poisons Standard—October 2024) Instrument 2024, authorised by the Therapeutic Goods Act 1989 regulated ingredients used in therapeutic goods. This regulation covers the below:
- Accessibility to substances that can be used as ingredients in medicines
Definition
The Therapeutic Goods Act defines therapeutic goods as:
“goods:
“(a) that are represented in any way to be, or that are, whether because of the way in which the goods are presented or for any other reason, likely to be taken to be:
(i) for therapeutic use; or
(ii) for use as an ingredient or component in the manufacture of therapeutic goods; or
(iii) for use as a container or part of a container for goods of the kind referred to in subparagraph (i) or (ii); or …”(view full definition in regulation).”
The Therapeutic Goods Act defines therapeutic use as:
“use in or in connection with:
(a) preventing, diagnosing, curing or alleviating a disease, ailment, defect or injury in persons; or
(b) influencing, inhibiting or modifying a physiological process in persons; or
(c) testing the susceptibility of persons to a disease or ailment; or
(d) influencing, controlling or preventing conception in persons; or
(e) testing for pregnancy in persons; or
(f) the replacement or modification of parts of the anatomy in persons.”
The Therapeutic Goods (Poisons Standard—October 2024) Instrument defines a medicine as:
“any poison for therapeutic use.”
The Therapeutic Goods (Poisons Standard—October 2024) Instrument defines a drug as:
“a poison intended for human or animal therapeutic use.”
The Therapeutic Goods (Poisons Standard—October 2024) Instrument defines a toy as:
“an object or number of objects manufactured, designed, labelled or marketed as a plaything for a child or children up to the age of 14 years.”
The Consumer Goods (Cosmetics) Information Standard and the Therapeutic Goods (Poisons Standard—October 2024) Instrument define a hand sanitiser as:
“an antibacterial skin care product:
(a) that consists of, contains or generates one or more antimicrobial active substances; and
(b) that is represented in any way to be, or is likely to be taken to be (whether because of the way in which it is presented or for any other reason):
(i) for use on hands when soap and water are not available; and
(ii) applied to the hands without rinsing off; and
(iii) intended to destroy, deter, render harmless, prevent the action of, or otherwise exert a controlling effect on any bacteria on the skin.”
Examples of Therapeutic Good Classification
Aromatherapy Cosmetics
Aromatherapy products claim to have psychological effects such as calming, relaxing or energising. Stress in particular, especially prolonger, is a cognitive behavioural issue – it’s treatment falls under the scope of a therapeutic good because it exudes therapeutic use (prevention/treatment of an ailment).
Sunscreen
Sunscreens are used in the prevention of UVA and UVB damage which can lead to skin cancer. Sunscreens are regulated as therapeutic goods with their own specific standard: AS/NZS 2604:1998. Sunscreens fit the definition of a therapeutic good and their uses.
Hand Sanitiser
Hand sanitisers have their own regulation called the Therapeutic Goods (Excluded Goods—Hand Sanitisers) Determination 2020. This regulation provides instructions on how to label a hand sanitiser correctly.
Eczema (Atopic Dermatitis) & Psoriasis Skin Preparations
Eczema, psoriasis and dermatitis are all skin conditions. The skin in these lesions is significantly different to healthy skin. If a product is designed to manage, prevent, or treat skin conditions, it is not classified as a cosmetic – instead it is classified as a drug – in Australia’s case; a therapeutic good. Products designed to treat diseases can never be classified as cosmetics.
Classification of General Products
Regulation
The Australian Competition & Consumer Commission is the regulatory/administrative body for general products.
Similarly to cosmetic products, the overarching piece of legislation for general products is the Competition and Consumer Act 2010 No. 51, 1974, administered by the ACCC. In this act, the Australian Consumer Law (ACL) is set out in Schedule 2.
There are also specific regulations for product types, e.g. chemical products (like cosmetics).
State territories and agencies regulate general products in their region:
- Australian Capital Territory Fair Trading
- Australian Competition and Consumer Commission
- Consumer Affairs Victoria
- New South Wales Fair Trading
- Northern Territory Consumer Affairs
- Queensland Fair Trading
- South Australia Consumer and Business Services
- Tasmania Consumer, Building and Occupational Services
- Western Australia consumer protection.
Definition
Under Australian Consumer Law (ACL), a “consumer product” is essentially any good or service acquired by a “consumer,” which is defined as a person who buys goods or services for personal, domestic, or household use, with a price threshold currently set at $100,000; meaning a product bought for business use exceeding that amount generally wouldn’t be considered a “consumer product” under the law.
Examples of General Product Classification
Tooth/Hair Brush
Consumer products are those which we interact with everyday – it includes any products we place on the market, including non-chemical products. There are safety obligations for these products under the Competition and Consumer Act.
Makeup
Makeup, and any other cosmetics, are also considered a consumer product and are regulated by the Australian Consumer Law. It’s the main regulation which covers all products.
