Secret recipes, patents and the trade in formulae
The secret formula is one of commerce's great pieces of theatre. It is also, very often, a rational legal strategy, and the history of trying to own a recipe is stranger than the marketing.
A patent grants a time limited monopoly in exchange for full public disclosure. A trade secret lasts indefinitely but offers no protection against independent discovery or reverse engineering. Cosmetic formulations are frequently kept as trade secrets because they are hard to patent, easy to work around and commercially short lived. Britain's medicine stamp duty, in force from the eighteenth century until 1941, taxed proprietary preparations whose composition was concealed, and the British Medical Association's Secret Remedies publications analysed and published such formulations in the early twentieth century.
There is a standing piece of commercial mythology about the formula known to only two people who are never permitted to travel together. It attaches to soft drinks, to liqueurs, to perfumes and to several cosmetics, and it is repeated with a straight face in a great deal of business writing. It is almost always a marketing device rather than a security arrangement, and it works because it makes a recipe into a relic.
Underneath the theatre sits a real legal question that has occupied courts, legislatures and manufacturers for three hundred years: can you own a way of making something, and what do you have to give up in exchange?
The patent bargain
A patent is a trade. The state grants a time limited exclusive right to exploit an invention. In return, the applicant must describe it fully enough that a person skilled in the art could reproduce it, and that description is published. The public gets the knowledge, permanently. The inventor gets a monopoly, temporarily.
For cosmetics that bargain is often unattractive, for four reasons.
- Novelty is hard. Most formulations combine known materials in known categories. An emulsion of an oil phase and a water phase with an emulsifier, a humectant, a preservative system and an active is not, in itself, inventive.
- Workarounds are easy. Even where a patent is granted, a competitor can often substitute a functionally similar ingredient and fall outside the claims.
- The clock is wrong. Patent terms run for around twenty years from filing. Very few cosmetic products have a commercial life approaching that.
- Publication helps competitors. A published patent is a technical document explaining exactly how you did it, available to every formulator on earth.
The result is that cosmetic patents cluster around genuinely novel actives, delivery systems, stabilisation methods, manufacturing processes and packaging mechanisms, while the ordinary formulation remains a trade secret. Packaging in particular is heavily protected: the lipstick swivel, the pump, the applicator, the compact hinge and the airless dispenser are all mechanical inventions with real patent histories.
The tax on concealment
Britain once had an elegant and now largely forgotten legal instrument aimed directly at this problem. From the late eighteenth century until 1941, a stamp duty applied to proprietary medicines, and its structure was revealing: preparations sold under a secret or proprietary name, or whose composition was not disclosed, attracted the duty, while preparations made up to a published formula did not.
The medicine stamp duty was, in effect, a tax on concealment. It did not prohibit secret preparations. It made them pay for the privilege, and it produced an enormous body of administrative records now held in the national archives, along with the stamps themselves, which appear on surviving packaging in museum collections and are one of the more useful dating tools for cosmetic and medicinal objects.
This was the market in which the businesses described in the essay on the industry's founding were built. The duty operated in a market awash with proprietary preparations making extravagant claims, many of which straddled the boundary between medicine and cosmetic. The boundary problem it created, whether a complexion preparation was a medicine for duty purposes, was litigated repeatedly, and the arguments are recognisably the same ones that now determine whether a product is a cosmetic or a medicinal product under modern law.
Publishing the secrets
The most direct assault on secret formulations in Britain came from the medical profession. The British Medical Association published Secret Remedies in 1909 and More Secret Remedies in 1912, in which proprietary preparations were chemically analysed and the results printed alongside their retail prices and their advertised claims.
The effect was devastating and entirely intentional. A preparation sold at a high price on the strength of a mysterious formulation was revealed to consist of water, a little alcohol, some sugar and a trace of a common substance. The books went through many printings and are among the most effective pieces of consumer advocacy of the period. They are also, incidentally, a superb source for anyone studying what was actually in the preparations of the era, because the analyses were done properly and published in full.
A tax on secrecy and a book of analyses did more to discipline the trade in formulae than any patent ever has.
- The claim
- The formula for a famous perfume or cosmetic is known to only two or three people in the world, who are forbidden from travelling on the same aircraft.
- Where it appears to come from
- A durable piece of corporate storytelling attached to several famous products across drinks, perfumery and cosmetics. It is repeated in business journalism and in company communications, and the specific detail about air travel gives it an air of documentary precision.
- What is actually established
- Established: manufacturers do protect formulations as trade secrets, and access within a company is often restricted. Established: perfume formulae in particular are commercially sensitive. Not established: the two person restriction in any case where it is claimed. Modern manufacturing requires the formula to exist in production systems, in quality control, in regulatory submissions and in safety assessments, none of which can be run by two people. Analytical chemistry can also reconstruct most compositions to a usable approximation, which is why the legal protection that matters is contractual rather than mystical.
What actually protects a formula now
Four things, in descending order of effectiveness.
Contracts. Confidentiality agreements with suppliers, contract manufacturers and employees, and restrictive covenants where enforceable. This is the real protection and it is unglamorous.
Supply chain control. Exclusive access to a raw material, a proprietary ingredient supplied under agreement, or a process only one plant can run.
Trade marks. The name, protected indefinitely so long as it is used and defended. Britain established trade mark registration in the 1870s, and it is the intellectual property right that has done most for this industry, because customers buy names.
Registered designs. The shape of a bottle, the pattern of a compact, the form of a cap. Distinctive packaging is often the most valuable protected asset a beauty brand holds, and it is protected as design rather than as invention.
The disclosure that arrived anyway
The great irony of the secret formula is that regulation eventually required a partial version of exactly what the patent system offered and industry declined. Ingredient labelling under a standard international nomenclature, in descending order of quantity, is now mandatory in the United Kingdom, the European Union and many other markets.
That list does not give away the formulation. Order tells you nothing about the ratios below a certain point, processing is not disclosed, and fragrance compositions are declared under a single collective term with only specific allergens named. But it does mean that the era of the entirely opaque jar is over, and it arrived not through commercial competition or moral pressure but through the same regulatory apparatus described in the essay on colour. The buyer now knows more about what is in the jar than at any point in the previous three thousand years, which is a genuine achievement and one that almost nobody uses.
Where to look
Readers who want to go further should start with the holdings themselves rather than with summaries of them. The Intellectual Property Office and the The National Archives both publish catalogue and research material relevant to this article. Both links are given for reference only. Neither institution has been assessed by us, neither has any connection to this magazine, and nothing here is an endorsement of any organisation.
Questions readers send us
Why are cosmetics rarely patented?
Because most formulations combine known materials in known ways, so novelty is difficult; competitors can substitute functionally similar ingredients to design around a claim; product lifecycles are far shorter than a patent term; and publication hands a complete technical description to every competitor. Patents cluster instead around novel actives, delivery systems and packaging mechanisms.
What was the medicine stamp duty?
A British tax, in force from the late eighteenth century until 1941, applying to proprietary preparations sold under a secret name or without disclosed composition. It functioned as a tax on concealment and generated extensive records, and the stamps themselves are useful for dating surviving packaging.
What were the Secret Remedies books?
Publications issued by the British Medical Association in 1909 and 1912 in which proprietary preparations were chemically analysed and the results printed alongside their prices and advertised claims. They were highly effective consumer advocacy and remain a valuable source on what such products contained.
Does the ingredient list tell me the formula?
No. It gives constituents under a standard nomenclature in descending order of quantity, with proportions undisclosed below a threshold, no processing information, and fragrance compositions declared collectively with only specific allergens named. It is real disclosure but it is not a recipe.
What protects a cosmetic brand most effectively?
Trade marks and registered designs, followed by contractual confidentiality and supply chain control. The name and the packaging are usually far more defensible and more valuable than the formulation itself.
- Intellectual Property Office Guidance on patents, trade marks, registered designs and trade secrets in the United Kingdom.
- The National Archives Records of stamp duty administration and proprietary medicine registration.
- Wellcome Collection Proprietary medicine literature, including analyses of secret remedies.
- British Library Trade catalogues, patent literature and advertising collections.
- Science Museum Group History of pharmacy, chemistry and manufacturing.
The Gazette, four times a year
One long letter a quarter: what we have been reading, what turned out to be untrue, and what is worth going to see. No selling, because we have nothing to sell you.
Sponsor lineEach issue carries one sponsor line, labelled as such and set apart from the writing. Sponsors are shown the rate card, never the copy. See the rate card.