Supergoop! Issued FDA Warning Letter

The US Food and Drug Administration issued a Warning Letter to Supergoop!. The Agency reviewed the Play SPF 50 Body Mousse label and website. FDA concluded the mousse makes drug claims.

“Supergoop! PLAY SPF 50 BODY MOUSSE” is a “drug” as defined by section 201(g)(1)(B) of the FD&C Act, 21 U.S.C. 321(g)(1)(B), because it is intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease, and/or under section 201(g)(1)(C) of the FD&C Act, 21 U.S.C. 321(g)(1)(C), because it is intended to affect the structure or any function of the body,” noted FDA.

Play SPF 50 Body Mousse Makes Drug Claims

“Examples from the “Supergoop! PLAY SPF 50 BODY MOUSSE” product labeling, including the most recent labeling submitted to FDA as part of drug listing pursuant to 21 CFR part 207 and your website and social media pages listed above, that provide evidence of the intended uses (as defined in 21 CFR 201.128) of the product as a drug include, but may not be limited to, the following:

• “Broad Spectrum Sunscreen SPF 50” [from your product label]

• “Helps prevent sunburn…” [from your product label]

• “A lightweight, whipped sunscreen mousse that’s water- & sweat-resistant…” [from your product website]

• “This innovative SPF was created to be the perfect family-friendly sunscreen…a fun mousse texture…” [from your product website]

• “Sunscreen innovation at its finest: lightweight, whipped, antioxidant-rich sunscreen mousse with SPF 50 protection…” [from your Instagram social media page]

Based on the above labeling, FDA concluded Supergoop! Play SPF 50 Body Mousse is intended for use as an over-the-counter (OTC) sunscreen drug product.

Out of Compliance with FD&C Act

FDA noted:

“No FDA-approved application pursuant to section 505 of the FD&C Act, 21 U.S.C. 355, is in effect for your drug product,” notes FDA. Section 505G of the FD&C Act, 21 U.S.C. 355h, governs the marketing of nonprescription drugs that are marketed without an approved application under section 505 of the FD&C Act, 21 U.S.C. 355, such as your product. Under section 502(ee) of the FD&C Act, 21 U.S.C. 352(ee), a nonprescription drug is misbranded if the drug is subject to section 505G of the FD&C Act, but does not comply with the requirements for marketing under that section and is not the subject of an application approved under section 505 of the FD&C Act, 21 U.S.C. 355.”

Furthermore, Section 505G of the FD&C Act, 21 U.S.C. 355h, provides that certain nonprescription drugs are deemed to be generally recognized as safe and effective (GRASE) and not new drugs if they, among other things, conform to the conditions in the applicable OTC monograph.

“In the case of OTC sunscreen drug products, the applicable OTC monograph is set forth in the final administrative order, OTC000006: Over-the-Counter Monograph M020: Sunscreen Drug Products for Over-the-Counter Human Use (hereinafter M020), which was deemed a final order by 505G(b)(8) and 505G(k)(2)(B).¹ However, under section 505G(m)(2), “notwithstanding subsection [505G](a),” sunscreens in dosage forms other than oil, lotion, cream, gel, butter, paste, ointment, stick, spray, and powder may only be lawfully marketed, without an application approved under section 505 of the FD&C Act, pursuant to an order issued under section 505G of the FD&C Act.² To date, no final order has been issued by the Secretary under 505G(b) or 505G(c) that would authorize marketing of a sunscreen in foam (aka, mousse or whip) dosage form.³ As previously stated, there is no FDA-approved application in effect for your drug product.

“Thus, even if your product was in conformity with the conditions set forth in M020 and all other applicable requirements to be deemed GRASE and not a new drug under section 505G(a)(1), it does not comply with the requirements under section 505G. Accordingly, your “Supergoop! PLAY SPF 50 BODY MOUSSE” is misbranded under section 502(ee) of the FD&C Act, 21 U.S.C. 352(ee).

“The introduction or delivery for introduction of misbranded drugs into interstate commerce violates section 301(a) of the FD&C Act, 21 U.S.C. 331(a).”

References

1 See sections 505G(a)(1) and (2) of the FD&C Act and see Order ID OTC000006, available at FDA’s website OTC Monographs@FDA, https://dps.fda.gov/omuf. As required by section 505G(a)(2), M020 encompasses the requirements specified in part 352 of title 21, Code of Federal Regulations, as published on May 21, 1999, beginning on page 27687 of volume 64 of the Federal Register, except that the applicable requirements governing effectiveness and labeling shall be those specified in section 201.327 of title 21, Code of Federal Regulations.

2 Section 505G(m)(2) provides that “[n]otwithstanding subsection [505G](a),” a drug that, “prior to the date of the enactment of this section [March 27, 2020], the Secretary determined in a proposed or final rule to be ineligible for review under the OTC drug review” (emphasis added) may not be legally marketed without an approved NDA or ANDA except as “pursuant to an order issued under this section”. In a 2019 proposed rule, FDA determined that sunscreens in all dosage forms other than oil, lotion, cream, gel, butter, paste, ointment, stick, spray, and powder were ineligible for review under the OTC Drug Review under the then-operative requirements because we did not receive data showing that they were marketed prior to 1972. 84 FR 6204 at 6229-6230 (Feb. 26, 2019); see also 84 FR 6204 at 6206 and 6272. Therefore, under section 505G(m)(2) of the FD&C Act, a sunscreen in any dosage form other than the ten dosage forms listed above may only be marketed with an approved application, unless FDA determines otherwise in an order issued under section 505G of the FD&C Act. To date, no final order has been issued by the Secretary under 505G(b) or 505G(c) that would authorize marketing of sunscreen in a mousse dosage form.

3 Your principal display panel, as well as other labeling, appears to use the terms “mousse” and “whipped” to describe your product. “Foam” is the dosage form term in United States Pharmacopeia (USP) general chapter <1151>, Pharmaceutical Dosage Forms, that best corresponds to your product; neither “mousse” nor “whipped” are used in that reference.