Detailed EU requirements regarding the use of cosmetic product claims were published on 11 July 2013, the same day that the EU Cosmetic Products Regulation (1223/2009) overhauling the EU legal framework for cosmetic products became applicable. The detailed requirements, referred to as “common criteria”, apply immediately and are likely to impact the manner in which cosmetic companies compete in the EU.
The common criteria for cosmetic product claims complement existing EU rules on misleading and comparative advertising. Their publication follows the setting of stringent requirements regarding the use of claims by other industries, including in particular the food industry.
Going forward, all cosmetic product claims must comply with the more detailed requirements regarding their “truthfulness”, “evidential support”, “honesty”, “fairness” and informative value. They apply regardless of whether the claims are in the form of text, names, trademarks, pictures and figurative or other signs, and irrespective of the medium used or the target audience.
More specifically, the common criteria, inter alia:
- require that explicit and implicit claims are supported by adequate and verifiable evidence, taking into account state of the art practices, and using a weight-of-evidence approach;
- emphasize the evidentiary requirements regarding claims that extrapolate ingredient properties to finished cosmetic products;
- prohibit claims that indicate that a cosmetic product has been authorized or approved by a competent authority within the EU;
- prevent the use of claims that attribute specific characteristics to a cosmetic product if similar cosmetic products possess the same characteristics or if a specific benefit is in mere compliance with minimal legal requirements;
- require that claims do not create confusion with competitor products, and do not denigrate competitors or ingredients legally used.
The common criteria form part of the implementation of the EU Cosmetic Products Regulation, which prohibits the use of text, names, trade marks, pictures and figurative or other signs that imply that products have characteristics or functions which they do not have.
The responsibility for ensuring compliance of cosmetic product claims with the common criteria is placed on the legal or natural person designated as the ‘responsible person’ for the cosmetic product concerned within the EU.
In light of the potential for increased litigation and enforcement, cosmetic companies are recommended to review their procedures and criteria for the substantiation, approval and documentation of the use of cosmetic product claims in the EU.
The Commission Regulation setting forth the common criteria for cosmetic product claims is available here, and the European Commission’s press release regarding their adoption and the becoming applicable of the EU Cosmetic Products Regulation is available here.
If you have any questions regarding this update, please contact the Sidley lawyer with whom you usually work.
Sidley’s EU Life Sciences practice assists multinational companies and trade associations with food, pharmaceutical, biotechnology, medical device, cosmetics and dietary supplement issues in the European Union. Our lawyers offer strategic advice for gaining and maintaining market access. We anticipate government actions, advise on approval and submission strategies, and interface with trade associations, consultants and governmental officials. Clients turn to our group for assistance with compliance issues relating to Good Manufacturing Practice, EU Drug Safety/Pharmacovigilance, and Quality System regulations, as well as EU competition and trade law issues.
For further information on the EU Life Sciences Practice, please contact:
Maurits J.F. Lugard +32.2.504.6417
Maarten Meulenbelt +32.2.504.6467
Vincenzo Salvatore +32.2.504.6478
Mike W. J. Beckers +32.2.504.6466
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