Today for y’all, I’ve got what some might consider a little bit of a hot…
This week’s blog/video is inspired by a question that was posed in our private members’ only Facebook group about homemade products like sugar scrubs and things like that.
So, it got me thinking, there’s some serious risks involved with selling this sort of thing, and I don’t think a lot of therapists are aware of these risks. So let’s look at the 3 big legal protections you MUST have in place if you’re selling homemade products in your massage practice.
So whether you’re selling your own products or someone else’s, there are three major considerations to make if you’re selling anything like sugar scrubs, lotions, lip balms…anything of the sort.
#1 You MUST use a preservative for the absolute majority of these products
If there is even a speck of water, or water-based ingredient, or if the product is likely to be exposed to moisture in the air or have someone’s fingers scraping into it, it needs a freaking preservative! Both because that’s just the thing to do to be a decent human being that works to not harm others, and you really don’t want the lawsuit that can happen if you’re guilty of not doing this. Now you may think, well it’s just little old me and my products I only use the best, all natural, organic ingredients, blah blah blah. That’s great and all, but guess what. Mold is freaking organic and all natural! So are bacteria! And what if your client goes to put that infested scrub or lotion onto their skin over even a slight cut or opening in the skin like a nick from shaving? That nastiness just breeched the barrier and is now possibly infecting that little opening and potentially invading their blood stream. And what if, heaven forbid, that person is immunocompromised due to an illness or a medication? Ok, look, I’m not trying to scare the bejeezus out of you, but well I guess I kind of am. This isn’t something to mess around with. This is very serious and needs to be addressed! But I’ve seen therapists make these products or buy from someone local who makes them with all these great ingredients, but no preservative…and then they sit on a shelf for 6 month or a year. And just because something looks or smells fine, does not mean it is fine. For the love of all that is holy in this world, put a freaking preservative in your products! And no, essential oils of any kind, while they may have some properties that are anti-bacterial or anti-fungal are not full spectrum, safe, and reliable preservatives. And the sheer amount you would have to add to a product to reach the level of possibly making an essential oil act as a preservative would usually render the product unsuitable or even hazardous. There are all natural ones out there. Yes, parabens, phenoxyethanol, and those sorts of things are preservatives, and I’m right there with you on not wanting to put that crap in my products or on my own skin. But you can find all natural broad-spectrum preservatives that will keep away bacteria and fungi if you don’t want to use the harsher stuff. For example, just to name a few, you could use Will Bark extract which is all natural or Preservative Eco which is a special formulation of benzyl alcohol, salicylic acid, glycerin and sorbic acid; all of which are naturally derived. When going with all natural preservatives, you’ll often need a much higher concentration, so the preservative will have to make up a larger percentage of your product than some others would. This is not something to guess at! Research this stuff thoroughly and test it! Now let me make one distinction here that I think is important. There is a big difference between rancidity and growth of mold or bacteria. Again, just because something smells or looks fine doesn’t mean it is fine. Mold and bacteria can be growing at a microscopic level long before you ever see or smell the first little tinge of something funky. This growth happens due to moisture and a good food source, like sugars and much of the other stuff we like to put in these products. Rancidity on the other hand is when the oil, butter, or other fat-based ingredients within your product go bad. For example, almond oil has a shelf life of 1 year. So it will smell fine and the oil will still be good for a year from the time it’s made. Once you get close to that year mark, the smell will start to turn. So the product may still be “safe” if preservatives were used, but the oil is basically just old and rancid. BUT, if that same product is exposed to moisture at all or you include any ingredients that contain water, like hydrosols, floral water, or aloe vera juice, they can grow bacteria and mold long before you ever see or smell the first signs that something is wrong. So please, please, please, use a preservative in your products. We live in an age of being able to order ANYTHING online…do your research and find a preservative that works for what you’re making. And if you’re using or selling someone else’s homemade products, make sure they’re using a preservative and that it’s at the right concentration to be effective. Ok, moving on…
#2 Label your products clearly
This is not just a preference, this is a rule of the FDA here in the US. And I’m in the United States, so that’s what I’m referencing, is the legalities here. If you are outside the US, please check with your local and national laws and regulations. Laws get really detailed and complex here, but I’m going to try to keep this simple for you. Now, while the FDA does regulate cosmetics, somewhat, which many of these sorts of spa products would fall under, there are some serious concerns over the claims made about your products so that you’re not falling under what would be classified as a “drug”. So let’s look at exactly what the FDA says here on this… “A product is a cosmetic if it is intended for uses such as cleansing the human body, making a person more attractive, or changing a person’s appearance….Some products meet the definitions of both cosmetics and drugs. This may happen when a product has two intended uses. For example, a shampoo is a cosmetic because its intended use is to cleanse the hair. An antidandruff treatment is a drug because its intended use is to treat dandruff. Consequently, an antidandruff shampoo is both a cosmetic and a drug. Among other cosmetic/drug combinations are toothpastes that contain fluoride, deodorants that are also antiperspirants, and moisturizers and makeup marketed with sun-protection claims. Such products must comply with the requirements for both cosmetics and drugs.” So unless you feel like going far more in depth with legal requirements and lab testing for your products, don’t make any claims about treating any sort of medical condition, ok? Even seemingly small stuff like minor skin conditions. That would still fall under the classification of a “drug”. If you’re claiming to make any changes to the structure or function of the body and any components of it, including the skin, then it is classified as a “drug”. Now a few points here when it comes to labeling and such for your products. You don’t have to get your label approved by the FDA beforehand. It is your responsibility to ensure your label is accurate and follows all guidelines: -You must have the name of the product on the label. -All ingredients must be listed by their common name and/or scientific name without any further description. If they’re “certified organic” that can be used as part of the name in that list. But this is why you sometimes see a little star next to each ingredient on a label and then that star is explained below the ingredient list as marking those ingredients that are “all natural” or “naturally derived” or “organic” or whatever other description they want. You just don’t list that type of descriptive term WITH the ingredient in the ingredient list. Ok? -You must have a “directions for safe use” section on your label. -You must list out any warnings, like don’t use on open wounds, not meant to treat, cure, or prevent any medical conditions, things like that. And just because something is “natural” does not mean it is safe for everyone. Arsenic is natural for heaven’s sake! So is botulism! Let’s be adults here and look at reality. Even essential oils and such, that many people claim are “natural” can be quite hazardous to people with certain conditions and when not used properly. -As for cosmetics, color additives are the only ingredient that has to be approved by the FDA. So you probably just shouldn’t use those. -The term “natural” is not a regulatory term and you can use that however you want. It doesn’t mean squat to the FDA or as a term of safety, but is more so used as a marketing ploy. -The FDA does not regulate the use of the term “organic”, but the USDA does. So you cannot state your product is organic unless you have it independently tested and approved by them. Instead, you will list out all of those ingredients individually that have been officially classified as organic by the USDA and come with that little seal showing that legally standing approval, and you can say it is made with USDA organic ingredients. But your product, unless you want to pay the big bucks and get it officially approved by the USDA, cannot be labeled as USDA organic, even if every ingredient you use is. Make sense? -The FDA requires cosmetic labels to identify the name and place of business of the manufacturer, packer or distributor. You need the physical address of your business, or the business that makes your products for you, on your label. Not a PO Box, not a website address alone. Those things are fine to include if you want, but you still have to have the physical address too. -The quantity of the product must be listed. Ounces, grams, whatever. Measure it and put it on the label. -Every bit of the typeface on the label needs to be large enough to be clearly legible. -There’s even regulation regarding the size of what they call the Principal Display Label, or basically the primary label you use on the packaging. So for a rectangular package, the label has to take up one entire side. For cylindrical packages, the label has to be 40% of the height x circumference. And for other shaped containers, the label needs to be 40% of the total container surface, not including top, bottom, neck, and other decorative protrusions. Seriously! This is the law. -If you have an outer container holding the primary container with the product inside, you need to have a similar label with all this information on both containers. -And, you will also want to include an expiration from open. So this could be something like “use within 6 months from the date opened” or just the little symbol of a jar with 6 month written on it. OR you could even have a blank space on your labels so you can write in the date it was made, and the use by date. And lastly, and I’ll keep this one short, because it’s pretty straightforward…
#3 You MUST collect sales tax
This will obviously depend on your area, but for most places, yes, even if you are only selling a few items here and there, sales tax will still need to be collected. So you will have to apply for a sales tax permit or ID with your state, collect that tax, and then pay it to your state every month, every quarter, or every year, depending on their requirements and your preferences. Now some of you might find this obvious, but I’ve seen many therapists who do not do this. They think they’re just selling a few things and it’s no big deal. But you know what is a big deal, tax fraud and tax evasion. If you were just making some crafts and selling a little every now and then, some areas may not have regulations on that, but you’re a business. And your business is selling a product. Therefore, you need to collect sales tax. Now whether you add this on top of your product price, or include it in the price is totally up to you, but either way, the state expects to get their piece. You better give it to them. Plain and simple; collect and pay the tax.
Now, I know this has thrown a lot of information at you, but this is the stuff you have to think about. You’re a business, act like one. This stuff isn’t all that hard, it’ll just take a little time to put it all together at first and make sure everything is on the up and up. Then it’s smooth sailing from there, with no worries about someone getting hurt or getting in legal trouble for failure to properly label or pay your taxes.