Giulia DiPasquale
Associate Editor
Loyola University Chicago School of Law, JD 2027
“Slugging”, “glass skin”, and “mineral mixing”, oh my! These are just a few of the current trends present in the skincare scene today. With the boom of social media advertising, non-professionals posting advice to TikTok, and companies’ budgets for trendy skincare campaigns in the millions, where do we draw the line between FDA-regulated skincare and “digital labeling” in this new generation of cosmetic advertising?
What is digital labeling?
Under the Federal Food, Drug (FDA), and Cosmetic Act, “labeling” includes “all labels and other written, printed, or graphic matter ‘accompanying’ a product”. Historically, this meant physical packaging, inserts, and printed pamphlets on paper. But in this new digital era of social media advertising, the definition has expanded to include online content that serves the same function. Company websites, social media posts by the brand or its affiliates, and influencer videos that make product claims are a few examples of how advertising and product information has shifted from physical to digital.
Digital labeling refers to any online or electronic communication that functions as part of a product’s labeling. Essentially, it is any information that accompanies or supplements a product in a way that influences how it is used, perceived, or purchased. Digital labeling is the modern, online extension of the FDA’s labeling authority, where captions, hashtags, and influencer endorsements become part of a product’s regulated claims, even without appearing on its physical packaging. Digital labeling is very prevalent in social media advertising today.
Why does this need to be regulated?
Under current FDA precedent, labeling does not need to be physically attached to the product; it just needs to “accompany” it in distribution or sale. Courts and the FDA have since interpreted that to include material accessed online that “travels with” the product through advertising or hyperlinks. So, when a skincare company, or influencer in a partnership with the company, posts statements on social media saying, “this product healed my acne,” “this product stimulates collagen,” or “this product will change your skin forever”, those words can actually function as digital labeling because they describe the product’s intended use – even if they appear on TikTok or Instagram rather than on the product’s box itself. This concept blurs the traditional boundary between labeling skincare products (which is regulated by the FDA) and advertising, which is typically overseen by the FTC. Moreover, the FDA has emphasized that “intended use” is determined not only by the language printed on a package, but also by any representations made in digital marketing that suggest therapeutic or physiological benefits. This means that even a casual influencer testimonial or brand-sponsored hashtag could reclassify a cosmetic as an unapproved drug if it implies medical treatment or alteration of body structure. For example, a moisturizer marketed with claims that it “repairs skin cells” crosses into drug territory, regardless of whether those statements appear on a website or in a short-form video. As online platforms increasingly serve as the primary point of consumer interaction, digital spaces effectively become extensions of the product’s “labeling environment.” The challenge, therefore, is that modern skincare marketing – dominated by micro-influencers, algorithmic content, and user-generated reviews – creates digital labeling that is decentralized, unregulated, and hyper focused on capitalism, with many brands solely focused on pushing out products that align with the current skincare trend on social media in order to make money, as opposed to taking the time to develop a quality, well thought out product. Although the FTC requires all advertisements to be “truthful, non-deceptive, and substantiated, avoiding exaggerated claims” the FTC mainly focuses advertisements present on television. Because the FDA’s guidance for digital content is limited and outdated, skincare companies often fall into a regulatory “grey zone”. This raises complex questions about enforcement and accountability. Who is responsible when labeling claims originate from digital content? How far does the FDA’s jurisdiction extend into influencer posts or affiliate marketing? These questions highlight the growing need for updated regulatory guidance while skincare advertising is shifting from traditional labeling definitions to realities of social media marketing.
Why does this matter? Because this is human skin! Disregarding proper labeling regulation on skincare marketing could lead to serious skin damage, health issues, product seizures, expensive recalls, and reputational damage. However, brands that prioritize compliance show consumers that they are prioritized and cared for, which should be a non-negotiable when it comes to the products people put on their faces. While social media is a great tool for advertising in this new generation, viral videos often feature filters or edits that set unattainable goals as well, since skincare is so individualized. Non-expert influencers also often promote unproven remedies, like using toothpaste for spot treating acne, that can actually do more harm than good, such as leading some to postpone seeing an actual dermatologist for serious skin conditions. While digital innovation and unique advertisements are great, this innovation also demands accountability.
Brands must ensure that all digital touch-points, from website listings to social media captions, consistently reflect the same verified information that appears on the product’s label, which is regulated by the FDA and FTC. This digital transformation of labeling can actually create opportunities for transparency and consumer education, but only if companies follow compliance monitoring to prevent misinformation and protect public health. Without updated FDA guidance addressing these new realities, digital labeling will continue to operate in a regulatory void, where viral trends evolve faster than the laws meant to keep consumers and their skin safe.