What is trade secret status for cosmetic ingredients?

Glenn W. Peterson

The U.S. Food and Drug Administration is responsible for ensuring the products you use in California are safe. It implements many different practices to help with this. One of those is the requirement for all cosmetics sold in the country to have a list of ingredients printed on the product package. For most companies, this is not a problem, but some companies may not want to list all the ingredients used in a product because it would reveal or weaken a trade secret.

The FDA wants to help protect intellectual rights, so it has established specific rules for companies that may have this concern over trade secrets. In fact, under the law, the FDA cannot compel a company to disclose a trade secret because this may void the trade secret protection. The balance between ensuring disclosure of ingredients and protecting trade secrets can be tricky.

To combat the issues, the FDA allows for generic names in lists, such as flavor or fragrance. If you are a manufacturer, you may request trade secret status. While this may be requested, it is almost always denied. It has only been approved once in 20 years.

To request the status, you would have to reveal your trade secret to the FDA so it can be evaluated. Among other things, you must prove what you have done to protect this secret, that it cannot be easily found out and that it is of great value to your company. It is a free process to request the review and status, so you can give it a try if you feel you really have a strong secret to protect that would be at risk should you be required to reveal your ingredients. Do be aware it could take a year or more to get a final ruling. An alternative you may want to try is obtaining a patent. This information is only intended to educate and should not be interpreted as legal advice.