Is it legal to resell samples? (makeup)

[Taxing Matters]

If it was introduced into interstate commerce, it is in violation of the 21 USC 331.

I disagree. You are declaring the sale to automatically violate this statute though there is nothing in the facts that indicates the product sold is either adulterated or misbranded. In order for the statute to be violated, the sale must involve a misbranded or adulterated product. Adulterated means that the product has been changed in some manner. Misbranded means that the product is in someway mislabeled such that the contents are not as described. The samples the OP has are unused and sealed. That pretty much tells me that they are neither misbranded or adulterated. Finally, note that it is the burden of the government to prove the misbranding or adulteration; it is not the burden of the seller prove it is isn't. Violations either result in criminal prosecution or civil fines imposed by the FDA; there is no private cause of action authorized for these violations. Of course if the product actually caused harm normal tort remedies would apply.

 

[quincy]

There have been questions about the legality of reselling products (like makeup and perfumes and even food) that have been disposed of by retailers and recovered from dumpsters by "dumpster divers."

As long as the dumpster divers are not trespassing on private property, there is nothing illegal about this.

The reselling of makeup (used or in original unsealed packages) is not illegal even if you might be selling viruses or bacteria along with the products. This can raise ethical issues but if someone wants to risk it by buying what you sell, that is on them.

 

[BakedBeans]

Yes. Guys, just to clarify, ALL of the samples I wish to sell are unused and factory sealed.

When I said in original question, “some of them I used”, I meant that from the free samples I got, I used some of them, and hope to get rid of samples I haven’t used.

 

[quincy]

Yes. Guys, just to clarify, ALL of the samples I wish to sell are unused and factory sealed.

When I said in original question, “some of them I used”, I meant that from the free samples I got, I used some of them, and hope to get rid of samples I haven’t used.

Thank you for the clarification.

You should have no legal issue with your resale of the makeup you have accumulated. You should not advertise the makeup as anything but what it is, however. If it is a sample from 2016, you should say it is a sample from 2016. Do not try to deceive your customers.

Good luck.