Make-Up Conspiracies? The Law on Manufacturing, Dupes and Counterfeit Items

Make-Up Conspiracies: Manufacturing, Dupes and Counterfeit Items 

I love make-up, obviously! I am also naturally inquisitive when I see replicas for higher end products being sold under a range of inexpensive beauty brand guises. I have made many videos discussing the various make-up and beauty dupes I have in my collection, but the more I discover, the more my curiosity piques and I question why and how companies can legally do this. With the increasing numbers of dupes for high end products being released, along with Jeffree Star's disclosure that his products are manufactured in the same laboratory as Kat Von D's make-up line, as well as Spratz Labs being the factory conveyor belt which couriers the liquid lipsticks for Colour Pop and Kylie Cosmetics, the lid is  carefully and slowly being lifted off the mystery that surrounds the usually secretive details on the how and where cosmetics are being made.

It's public knowledge that large corporations incubate many worldwide recognised names, but companies, particularly CEOs, don't often let it slip that their cosmetics hail from the same factory as other brands. It is interesting to me that Jeffree's indie and independent brand which reached immediate cult status with his fans and followers, is produced in the same one as Kat Von D, a brand parented by Kendo who also represents the luxury brands stocked at Sephora, including Marc Jacobs Beauty, Bite Beauty and the upcoming Fenty Beauty, a collaboration between Kendo and Rihanna.

Since information cannot be requested under domestic laws pertaining to freedom of information, the public does not have the right to know about specific manufacturing details as they are personal to the private company. If consumers were dealing with a public body, it would be a different story. So how is it that fashion sweat shop scandals are intermittently exposed, yet beauty bloggers and consumers alike, cannot have the same level of clarity with beauty brands? If there is nothing to hide then what is the problem? 

Sure, companies can utilise contract law vocabulary to give the average interested customer a less than satisfactory answer - just like many of the big brands did when I questioned their manufacturing a few years back. It is easy to fall down into the curious quagmire when companies refuse to be anything but transparent, and cosmetics conspiracies are inevitable. Conspiracies which are related to the beauty industry often discuss various topics such as international shipping and customs, alterations to formulas (so that they will spoil quicker resulting in more repurchases), samples being high quality and the purchase being less so, the limits on liquids being allowed through airport security (so that you will buy from the highly over-priced airport shops), Max Huber's discovery of the formula used in La Mer and other brand origin stories, and of course, animal testing. Some appear to be potentially less realistic than others (the Illuminati owning Colour Pop is just the tip of the iceberg), but there are some topics which are rarely, if ever, deliberated. Conspiracies may not often contain academic authority, but they are a fantastic way to get the public debating on controversies which involve pretence, obscurity and secretive behaviour - and make-up companies are no exception. Once the demand for knowledge increases, then a supply will hopefully follow. 

One way to either debunk or corroborate make-up conspiracies is by examining the legislation which relates to the industry. Current UK copyright laws don't offer creative protection for the design of make-up and other cosmetics. Make-up application itself is practical, designed to disguise and enhance the features, and things which are practical are not subject to copyright protection. Should that change, not only could make-up artists take legal action upon people who have re-created their original creations, but brands and designers could also file complaints against companies who produce dupes. The floodgates would open and a judge favouring a plaintiff in such cases is unimaginable. Many laws that relate to cosmetics in the UK and US cover health and safety, not intellectual property. 

As the law does not offer protection in make-up design, then dupes are 100% legitimate copycats of the more established brands. But if formulas and the composition of colours were truly secretive, would most dupes not be washed out versions of the original? I find it to be the opposite as I repeatedly see excellent quality dupes with the same ingredients, micas and oxides contained in them as the luxurious originals. Many dupes today are identical to their original counterparts. Does that make you wonder if they are made in the same factory as each other? Varieties of food products and accessory brands use the same factories - they are just labelled with a diverse range of recognisable logos for what is essentially the same merchandise. Therefore, it is probable that this does happen within the beauty industry.

In saying that, professional beauty brand Anastasia Beverly Hills states that their products and methods are protected by intellectual property law including patents, trademarks and copyright, with their US patent numbers displayed on their website. Patents, by their very legal nature are privileged rights accepted by an autonomous state to inventors for a set period of time (twenty years). They are granted in exchange for public disclosure on specific details of the invention, albeit in confusing legal jargon. In order to receive a patent, inventions must be either a product or a process which is a solution to technological or scientific problem. The ingredients used to make cosmetics are subject to areas of science including toxicology and pharmaceuticals, as well as containers which require technological development. This is how beauty brands can obtain patents in order to monopolise the industry. It's difficult to imagine that eyebrow products were a solution to scientific problem!

So what does this mean for cosmetics? Well firstly, it is not necessarily the company, nor the CEO and the directors who have discovered products or processes. Typically, the company will spend a portion of their budget on research and development by employing scientists and technicians who have the ability to develop new ways of creating novel products and methods. Should an invention satisfy certain criteria, then they are eligible to apply for a patent. Patents are used to prevent competitors from using them to create similar products allowing them to have full control of their invention until either the patent runs out (and anyone can use it) or they sell the rights to other companies. A quick Google search of ABH's listed patent numbers and you will see that none pertain to cosmetic formulas but rather they protect contemporary devices and methods used for eyebrow stencilling. The reality of this type of patent simply means ABH has developed a stencil that may be smaller or larger than pre-existing ones. Same goes for mascara wands, lipsticks  and containers - change the shape or the dimensions by  even just a fraction of a millimetre and theoretically, you can obtain a patent for your invention. This also means that for companies who wish to use the patent for their products can do so for a fee to the patent holder - a possibility of why so many dupes and copycat products exist. 

When you compare the ingredients between the eyebrow products developed by ABH, Milani and Nyx Cosmetics, they contain a list of precisely the same ingredients (brow markers are ABH brow pen $21/£17, Milani brow tint pen $5.99/£6.47, Nyx eyebrow marker $9.75/£7, and brow shaper pencils are ABH brow primer $21/£16, Milani brow shaping clear wax pencil $4.99/£3.94, Nyx eyebrow shaper $8.75/£7.50). This is also the case between the cream bronzers Chanel soleil tan de Chanel bronze universel $50/£32 and W7 make-up & glow bronzing base $8.95/£3.99 which have similar ingredients, micas and oxides. 

So why are consumers paying more for what is essentially the same product? The answer lies in marketing. They are branded with a variety of logos and depending on factors such as budget, age and status, the prices are altered to fit the preferences of the consumer. You only have to read the list of L'Oréal's brand division to notice how many fingers they have in the pie. It looks like they ran out of hands because their acquisition expands often! Their brands cater to a plethora of consumers and personalities including luxe buyers (Lancôme, YSL), buyers from QVC (IT Cosmetics), environmentalists (The Body Shop), skincare connoisseurs (Vichy, Dermablend), budget buyers and teens (L'Oréal, Maybelline, Nyx Cosmetics) and alternative beauty lovers (Urban Decay), as well as competent make-up artists and make-up addicts who will buy anything that works properly and looks and feels good. OK, I know that was very stereotypical, but my point is that many of these cosmetics corporations aim to get you to buy the same product disguised under a different logo in order to make a sale and for that to happen, the company must appeal to the everyone.  That age-old response to complaints when inexpensive products don't work, you get what you pay for, does not resonate in these circumstances. Companies must love beauty influencers who promote dupes because occasionally the dupe and the original are owned by the parent company, meaning that every type of consumer will potentially buy from one of their brands. If not, then it would appear as if the patent of the original formula and method has been sold to competing companies. 

With that in mind, I would like to know specifics about the manufacturing of beauty products. Where and how are good places to start if we want to unravel the mystery behind the cosmetics production lines - or even just let us know if the patents are being shared! 

Another issue to regard is the origin of the ingredients. Many companies will clarify on their label where they are developed and where they are manufactured, as typically brands will develop in their own country like the UK or US and manufacture in the PRC. Some companies will state that they are manufactured in the UK, US or other Western country but may not state that their ingredients have been sourced from cheaper locations where the regulations on make-up manufacturing are more lackadaisical when compared to countries who impose stricter governance on manufacturing make-up.  

This is not the only issue being unaddressed by big beauty companies and indie brands alike. With the surging interests in make-up dupes and budget beauty influencers on YouTube promoting them (myself included), there has also been an influx of enthusiasm for counterfeit items as displayed in Ebay and/or Aliexpress hauls. Now that is something the law protects against and if that was my company's name being used to popularise fraudulent goods, I would certainly be publicly vocal about it. I would make it a priority to have the sham sellers shut down and I would endeavour that such products would not reach the buyer. Companies infrequently dispute that this is an area for concern for health and safety as well as the commercial value of the company. Anastasia Beverly Hills have a counterfeit education tab on their website, which also includes a list of authorised sellers. This is an excellent example of how companies should publicly address the discovery of fraudulent goods. I determine that the lack of publicity surrounding this issue is counter-distinctive to what companies are set up to do - and that is to make money! Unless, of course, these 'counterfeit goods' are in some way related to the brand itself...

This is a theoretical topic that I could write about at length, with case studies and authoritative references. As this is something I may use for publication one day, I will stop here, but in the meantime, I would like responses from everyone who is interested in this topic. Do the answers to my dupes question lie within the bounds of intellectual property, or are they coincidentally made in the same factory? To all the beauty brands, I invite you to respond to this. To all my fellow consumers and bloggers out there, start the conversation and see where we end up! To myself, you know you should stop buying all the make-up and their dupes! But that's never going to happen - I'm too far down the rabbit hole!