Can cosmetics claim to be “anti-itch”? Recently, this controversial issue has once again come to the forefront.
According to an administrative judgment published on China Judgments Online, the lawsuit filed by Yang against the Head & Shoulders shampoo sold by JD.com, claiming that it was counterfeit and questioning the registration of the product’s claimed “anti-itch” effect, was rejected by the Fourth Intermediate People’s Court of Beijing. The reason for the rejection was that the claim of “anti-itch” does not qualify as a new function of cosmetics, and Head & Shoulders can provide proof of the effectiveness of the “anti-itch” claim.
In response to this, some industry experts believe that based on this case, if cosmetics can provide proof of the effectiveness of the “anti-itch” claim, they can indeed make such a claim.
Head & Shoulders “Wins”
According to the final administrative judgment issued by the Fourth Intermediate People’s Court of Beijing, the court recently made a final ruling on the case of Yang’s appeal against the Beijing Economic and Technological Development Zone Management Committee and the Administrative Actions of the Beijing Municipal Government, rejecting Yang’s appeal and upholding the judgment of the first instance. The focus of this case was whether the “anti-itch” effect of Head & Shoulders shampoo should be registered as a special cosmetic, as well as whether there were procedural violations by the relevant administrative agencies in the handling process.
The judgment shows that Yang previously reported through the Beijing Municipal Market Supervision Complaint Reporting Platform that some Head & Shoulders shampoos sold on the JD.com website claimed to have an “anti-itch” effect, which was considered a new function of cosmetics and should be registered as a special cosmetic. However, in reality, it was not registered. In response to this, after an investigation, the Beijing Economic and Technological Development Zone Management Committee decided not to file a case. Dissatisfied with this decision, Yang filed an administrative lawsuit with the Fourth Intermediate People’s Court.
It is reported that both the first instance and the second instance of the court considered that “‘anti-itch’ is not a new cosmetic function, so it does not need to be registered as a special cosmetic.” At the same time, according to relevant regulations such as the “Cosmetic Supervision and Administration Regulations,” the efficacy claims of the products involved in the case were well-founded, namely, “after using Head & Shoulders anti-dandruff shampoo containing 0.5% pyrithione ethanolamine salt for 3 weeks, the scalp itch assessment value significantly decreased, indicating a significant anti-itch effect (caused by dandruff). And Head & Shoulders can provide the ‘Clinical Trial Explanation of Head & Shoulders Anti-Dandruff and Anti-Itch,’ so the display of anti-itch on the website is genuine.”
In addition, the Fourth Intermediate People’s Court of Beijing also pointed out that the Development Zone Management Committee and the Beijing Municipal Government had followed the relevant administrative procedures in handling Yang’s report in accordance with the law, and there was no procedural violation. Regarding the issues raised by Yang, the Management Committee and the Municipal Government had made the correct disposition in accordance with relevant laws and regulations. Therefore, both the first instance and the second instance courts did not support Yang’s lawsuit. This means that Head & Shoulders “won” in this litigation and was not affected by Yang’s report.
It can be seen that one of the core issues raised in the above case is the legal definition of cosmetic efficacy claims and registration categories. The judgment cited the “Cosmetic Supervision and Administration Regulations” to provide a clear definition of cosmetics and their efficacy, stating that “anti-itch” does not belong to new functions that require registration.
The final judgment marks the legal conclusion of this case, and some industry experts believe that “the judgment and the related legal interpretations actually provide important legal reference and guidance to consumers and cosmetic companies.”
Nearly 5,000 “anti-itch” cosmetics have been registered
According to the judgment, the case originated from Yang’s report on issues with Head & Shoulders products sold on JD.com. This is not the first time that “anti-itch” claims have been questioned. In 2021, someone reported to the Nansha District Market Supervision Bureau in Guangzhou, accusing XX (Guangzhou) Co., Ltd. of suspected illegal activities. The report mentioned products such as “XX Scalp Dandruff and Anti-Itch Shampoo” and “XX Ginger Dandruff and Anti-Itch Shampoo,” claiming that they were advertising “anti-itch” effects and considering it a new function of cosmetics.
In fact, the frequent questioning of “anti-itch” cosmetics stems from the ongoing controversy surrounding this claim. A senior industry professional explained, “For a long time, some cosmetics were allowed to claim ‘anti-itch.’ However, due to the absence of the ‘anti-itch’ efficacy in the Cosmetic Classification Rules and Catalog issued by the National Medical Products Administration in 2021, the industry’s attitude towards ‘anti-itch’ has undergone significant changes, and many places no longer allow cosmetics to claim ‘anti-itch.'”
Zhang Taijun, the Research and Development Director of Guangzhou Quanzhi Meifu Biotechnology Research Institute, also told CHAILEEDO, “To this day, different regions have different standards for evaluating the claim of ‘anti-itch.’ For example, in the Guangzhou area, this claim is not prohibited, but some regions in East China do not allow the registration of cosmetics with the claim of ‘anti-itch.'”
However, both the recent judgment by the Fourth Intermediate People’s Court of Beijing and the previous response from the Nansha District Comprehensive Administrative Law Enforcement Bureau in Guangzhou stated that “anti-itch” does not belong to new cosmetic functions.
It is worth mentioning that as early as May 11, 2021, someone asked on the Guangdong Provincial Drug Administration’s interactive communication platform, “Can cosmetics under the new regulations claim to be ‘anti-itch’?”
At the time, the Guangdong Provincial Drug Administration replied, “According to Article 5 of the Cosmetic Classification Rules and Catalog, cosmetics should select the corresponding number according to the efficacy category listed in the efficacy claim classification catalog, and the efficacy claim should have sufficient scientific basis.” Annex 1, the “Efficacy Claim Classification Catalog,” specifies the efficacy categories, explanatory notes, and claim guidelines. Specific claim language that meets the above requirements is acceptable.
Many industry insiders believe that the official reply from the Guangdong Drug Administration did not provide a clear answer. It should be noted that among the 26 efficacy claim terms mentioned in the “Efficacy Claim Classification Catalog,” only “anti-dandruff” is included, and “anti-itch” is not.
However, CHAILEEDO’s investigation found that in practice, products with “anti-itch” claims can still be registered and sold on the market. Searching the cosmetics regulation app using the keyword “anti-itch” reveals a total of 4,859 product registration records. Using the keyword “anti-itch shampoo” shows 714 product registration records.
Furthermore, by querying the National Medical Products Administration’s cosmetics registration system, CHAILEEDO also discovered that Shanghai JAHWA United Co., Ltd. registered multiple anti-itch lotion products after 2021. For example, on October 9, 2023, they successfully registered a product called “Liu Shen Anti-Itch Lotion (Spray).”
This means that after the implementation of the new cosmetics regulations, cosmetics mentioning “anti-itch” can still be registered normally.
“The key to cosmetic claims lies in having supporting evidence.“
However, as Zhang Taijun also pointed out, there is currently no unified opinion on the “anti-itch” claim across the country. Therefore, some industry professionals still advise against making “anti-itch” claims, to avoid potential restrictions when regulations are implemented in the future.
In addition, the head of a cosmetic testing company told CHAILEEDO that although many products on the market claim to have “anti-itch” efficacy, there is still a lack of clear criteria and evaluation methods for determining this efficacy. In his opinion, brands need to prove their “anti-itch” efficacy by commissioning two or more cosmetic registration and filing inspection agencies to conduct method validation. Only when the efficacy is verified and meets the requirements can the evaluation of the new efficacy be carried out, and the testing reports generated through such evaluations will then be considered credible.
In fact, the dilemma of “anti-itch” is not unique; similar situations exist for claims such as “anti-aging.”
It is well known that nearly all popular brands currently have product lines claiming to be “anti-aging” or “anti-skin aging.” However, the registered efficacy claims for these products mostly include terms like “firming,” “anti-wrinkle,” and “repair.” Several brands have been penalized in the past for using the term “anti-aging” in their advertising. For example, in August 2023, the parent company of the skincare brand “HELIUS” was fined 200,000 yuan for using promotional language containing the term “anti-aging.” In January 2022, Shanghai Oweifan Cosmetics Trading Co., Ltd., was fined 30,000 yuan by the Shanghai Municipal Administration for Market Regulation for mentioning “anti-aging” in their advertising copy. In August of the same year, Shanghai Banxia Biotechnology Co., Ltd., was fined 4,000 yuan by the Shanghai Municipal Administration for Market Regulation for claiming “anti-aging” in their product promotion, which violated the Advertising Law.
Therefore, industry insiders suggest that if brands use the promotional language of “anti-aging” in their external communication, they should provide explanations to avoid potential risks.
As we know, the overall idea behind the new regulations is to ensure that cosmetic efficacy claims have supporting evidence. Looking at the recent judgment by the Fourth Intermediate People’s Court of Beijing, which ruled that Head & Shoulders anti-itch shampoo did not engage in any illegal or irregular activities, it is evident that claiming “anti-itch” for cosmetics is not entirely impossible. The crucial factor is that companies or brands must provide sufficient scientific evidence to prove their claims, which makes them legally valid.
