In a move that will send shockwaves across the cosmetics and fragrance industries, the European Commission’s Standing Committee on Cosmetic Products has just passed a proposal to ban three fragrance allergens, atranol, chlorotranol and HICC.

The proposal would require that products containing the allergens be banned from sale four years after the enabling regulation comes into force, with a marketing ban effective two years prior to the ban.

Labelling Not Sufficient

Currently, Annex III of EU Cosmetic Regulation 1223/2009 lists 26 allergens which must be listed in the ingredients list on the label or packaging of a product if they are present in concentrations greater than 0.001% in leave-on products and 0.01% in rinse-off products.

The labelling has not, however, been viewed as sufficient to safeguard the public from the allergens. The 2011 published opinion of the Scientific Committee on Consumer Safety issued an opinion on the need to consider prohibitions for certain fragrance allergens in cosmetic products, leading to a European Commission public consultation, concluding in May 2014. Industry was then left to wait and see if regulatory measures short of an outright prohibition might be acceptable. They weren’t and Regulation 1223/2009 is set for amendment to enact the ban.

All Chypre and Fougère Scents Impacted

At the heart of the controversy is oakmoss, known to contain both atranol and chlorotranol molecules. Oakmoss essence is integral to all chypre and fougère scents for women and men. The challenge will be to either remove the allergens from the essence or find an alternative which preserves the signature scents used by companies such as Chanel and Coty.

The regulatory change does provide sufficient lead time to industry to explore these alternatives, and many will have already begin this process from 2014 if not prior, in light of the long-standing concern over impacts to the susceptible portion of the public.

More Allergen Ingredients Bans to Come?

What may not be manageable, however, is the seemingly exponential growth of identifiable allergenic impacts of product content which will foreseeably spread beyond the existing 26 substances currently listed in the EU Cosmetic Regulation. The risks from atranol, chlorotranol and HICC may be deemed acute, but they are certainty not unique among the substances subject to labelling obligations.

Further, compliance with the regulatory law alone, as it originates from the EU or elsewhere, won’t be sufficient to protect industry producers from possible claims from a public with innumerable sensitivities.

Jonathan Cocker heads the Firm’s Environment & Environmental Markets Practice Group in Toronto, where he also serves as chair of the Pro Bono Committee. He authored the Global Climate Change Law Guide, and has worked with the Management Board Secretariat of the Government of Ontario. Mr. Cocker has represented a wide range of clients before various administrative boards, the Superior Court of Justice and the Federal Court of Canada, among others.