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Creating new product using an existing product as an ingredient
Hello,
I am interested in starting my own line of cosmetics. My
philosophy is to keep it simple and effective. I have a BS in psychobiology with a background in chemistry and biology. Currently I’ve been adding
essential oils into a large established basic moisturizer and have been amazed
by the results. I am wondering if it would be legal for me to sell my new
formulation that uses an existing product that is patented (the basic
moisturizer) as one of the handful of ingredients. Ultimately I would hope to
formulate my own moisturizer to use as an ingredient but I do not have the
capital or lab to do so yet. I would use this initial formulation to build my
brand and save time/money effectively creating a bridge to a more fleshed out
and original formulation downstream. Is this legal? Are there any issues with labeling ingredients? I live in the USA.Any insight would be appreciated.
Thank you
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10 Replies
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Without researching it too much, I’m going to come down on the side of “not legal”, at least in the US. Particularly since your base cream is patented.
What you want to do is contact a diy website, a wholesaler, or even a private label manufacturer and buy a few gallons of a basic moisturizer, add your ingredients, test for micro, stability, and safety, and then you can go ahead and start selling. -
Going to have to agree with Bobzchemist on this one, Especially here in the US, it could get into the whole grounds of falsification and especially since the base moisturizer is already largely established and patented.
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I do hope you’re very aware of the safety issues regarding essential oils. The other problem is that if you add much E.O. to an existing emulsion, you may break the emulsion.
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@Belassi brings up a good point. Ideally, you’ll be able to buy one of the moisturizer bases that are specifically designed to accept the addition of EO’s post-emulsification without breaking.
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Essential Wholesale offers a variety of lotion bases to which you could add your essential oils. http://www.essentialwholesale.com/category/14/lotions
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Thank you all for the input! I’ve been doing further research and will start making a few batch of moisturizers out of scratch without the existing product that is patented as an added ingredient. Good point on essential oil with potential to break down the emulsion. I actually meant to say carrier oil.
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It is my opinion that you can incorporate any product which you purchase as an ingredient in a new product. I think that the legal position called “first sale doctrine” applied here. Check with your attorney before proceeding because I am not an attorney and can’t offer legal advice that you can depend on. But from what I understand as long as you don’t use their trade name or packaging and only use the material as an ingredient you are within your legal rights to add to it in the same way you add to other compounding mixtures which you might buy. I think that when you make each individual purchase you are not in violation of his patent rights since you are not depriving the patent owner of his revenue.
There have been some precedent cases where bulk beauty shop brand name products were repackaged after slight additions were made with a new name and label and packaging. That’s where initially learned of the “first sale doctrine.” -
You need to consider the difference between “likely to prevail” once a lawsuit has been started, and “likelihood of being sued”
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Yes, it is easy to be intimidated by the opposition if they have deeper pockets. It depends on the value of the prize. If you are in the right and the potential reward is significant you might get an attorney who will take the case for a participation position in the ongoing business. If it’s not worth the hassle then just compound a respectable clone being careful to avoid any patent infringements.
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Wouldn’t there also be difficulties in creating an accurate list of ingredients if you used an existing product without knowing its actual formulation?
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