The global market for intimate wellness products is expected to grow to $81.4 billion by 2028, up from $51.9 billion in 2021, according to recent market research reports. Once taboo, or the topic of hush-hush conversations, intimate wellness brands are increasingly crossing over into mainstream wellness marketing, collaborating with well-known fashion and beauty brands and major retailers, expanding concepts of self-care for Gen Z consumers who are more inclusive and willing to explore individual concepts of pleasure.
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The global market for intimate wellness products is expected to grow to $81.4 billion by 2028, up from $51.9 billion in 2021, according to recent market research reports. Once taboo, or the topic of hush-hush conversations, intimate wellness brands are increasingly crossing over into mainstream wellness marketing, collaborating with well-known fashion and beauty brands and major retailers, expanding concepts of self-care for Gen Z consumers who are more inclusive and willing to explore individual concepts of pleasure.
With consumers increasingly focused on intimate wellness, and venture capital firms dedicating millions in funding to start-ups in this expanding space, the demand for intimate wellness products and treatments is only expected to grow. But, as always, there are legal risks surrounding what brands can claim or say, and in particular, what brands can advertise when it comes to mentioning the unmentionables.
Here’s what the spa industry needs to know about promoting intimate health products and treatments.
What is Intimate Health?
Intimate wellness is a broad term that encompasses everything from personal care products such as oils, exfoliants and vibrators, to products intended to strengthen the pelvic floor and provide support to uterine, bladder and bowel functions. This can also include dietary supplements intended to enhance libido and promote vaginal health, lubricants to counter skin irritation and enhance sensual pleasure, to downloadable apps that address everything from low libido to more inclusive concepts of sexual desire, to encompassing holistic approaches to gynecological health and treating sexual discomfort.
How Are Cosmetic Claims Regulated?
Intimate wellness products can be regulated a few different ways. The U.S. Food and Drug Administration (FDA), which is tasked by the federal Food, Drug, and Cosmetics Act of 1938 with regulating cosmetics, drugs, and medical devices intended for sale in the United States, does not separately define intimate wellness products as a regulatory category. Instead, the FDA regulates products based on their intended use.
Products encounter varying levels of regulatory scrutiny depending on whether they are considered cosmetics, drugs, medical devices, or dietary supplements, and each impose varying obligations on manufacturers, packers and distributors.
Related: The Connection Between Sexual Wellness and Skin Health
What Does This Mean in Practical Terms?
The FDA does not have a list of accepted claims for intimate wellness products, or criteria on how much support brands need to make certain claims, such as scientific studies, customer surveys, or third-party certifications. However, there are limits to what manufacturers can claim on product labels.
The Fair Packaging and Labeling Act requires that various forms of product labeling must be truthful and not misleading, and disclose all ingredients. Products that are required to comply, and fail to comply with the FPLA are considered misbranded under the FDCA, and can result in enforcement action by the FDA.
The Federal Trade Commission, which regulates product advertising under the FTC Act, can also take action against brands to enjoin what it perceives as unfair or deceptive practices, or false advertisements that are likely to mislead a reasonable consumer and material to their purchasing decisions.
Finally, depending on where the products are manufacturer and/or sold, ingredients are subject to a range of state laws. Products also may be subject to various advertising rules or social media requirements, that may restrict the promotion of so-called “adult products or themes,” depending on the language of the rule, or data privacy laws—particularly with respect to confidential health information.
What Are the Risks Associated with False Claims?
Although intimate wellness products and treatments have proved popular with consumers, companies have faced legal scrutiny for allegedly deceptive or misleading claims with respects to products marketed as “all natural,” “non-toxic,” “safe,” or pure.”
In recent years, a number of private lawsuits have been brought by consumers, disputing claims that products are “clean,” “natural,” or “nontoxic.” Instead, these complaints allege that the products contain synthetic ingredients, or ingredients allegedly linked to human health concerns like reproductive issues or in certain cases, cancer.
Alternatively, they allege that a product’s “clean” or “natural” labeling is false and/or misleading because the product contains synthetic ingredients, and that they were induced to purchase products they would not have otherwise purchased for prices they would not have otherwise paid.
In addition to the risks posed by costly litigation, overbroad or unsubstantiated efficacy claims may incur regulatory scrutiny. Both the FDA and FTC have issued warning letters to consumer product manufacturers for “drug” claims, claiming that the product is intended to treat various medical conditions or affect the structure and function of the body, as well as overbroad or unsubstantiated claims that lack sufficient evidence that the products act as intended. Misleading or confusing advertising claims also could result in investigations or claims by state attorneys general.
Brands should also be aware of potential data privacy risks, particularly in states like California, and the potential for serious penalties for the inadvertent collection and disclosure of confidential health information.
Finally, brands should be aware that as consumers under the age of 13 (“Gen Alpha” or “tweens”) increasingly embrace wellness content on social media, and, depending on where the brand promotes its products, may encounter regulations aimed at restricting the dissemination or promotion of “adult” content to under-age users.
The Top Takeaways
Companies should be aware of the potential for liability when promoting intimate wellness products and treatments. This particularly applies to claims that emphasize cleanliness, purity, or the inclusion of “all natural” ingredients, or that advertise on social media, and need to be aware of potential content restrictions. How certain words are perceived — or in this case, misperceived — can be almost as costly as what brands intend them to mean.
Kelly A. Bonner, trial attorney with Duane Morris LLP, focuses on cross-jurisdictional and complex commercial disputes involving pharmaceutical, health-related retail, and consumer branded products. Bonner is a frequent author on litigation risk and regulatory issues affecting businesses in the beauty and wellness industries.
