Tuesday, July 16, 2013Cosmetic regulations

Claims: the Common Criteria

Règlement 655/2013 sur les Critères Communs

They were expected, they were already known in broad outline and were confirmed by Regulation 655/2013 “laying down Common Criteria for the justification of claims used in relation to cosmetic products”, dated 10 July 2013 and applicable as from 11 July. Reminder of the principles.

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This Regulation is the result of cooperative work between the European Commission and the Member States, induced by Article 20 of the Cosmetics Regulation, which states that “In the labelling, making available on the market and advertising of cosmetic products, text, names, trademarks, pictures and figurative or other signs shall not be used to imply that these products have characteristics or functions which they do not have.”
In other words, claims must not be misleading. This is the general, framing principle.

In its Recitals, Regulation 655/2013 justifies this principle by specifying that “end users” – meaning consumers, but also hairdressers or beauticians who use cosmetic products at work – "are faced with a wide diversity of claims relating to the function, content and effects of a cosmetic product. As cosmetic products play such a big part in end users’ lives, it is important to ensure that the information conveyed to them through such claims is useful, understandable and reliable, and that it enables them to take informed decisions and to choose the products that best suit their needs and expectations".

Everything is said: “the main objective of laying down Common Criteria is to guarantee a high level of protection for end users, in particular from misleading claims in relation to cosmetic products.”

And then everything is detailed, step by step.

The 6 Common Criteria

We knew them, they are now official. Here is the main part of it.

1. Legal compliance

Claiming mere compliance with regulations in force is not allowed:
• Claims that indicate that the product has been authorized or approved by a competent authority within the Union shall not be allowed
• Claims which convey the idea that a product has a specific benefit when this benefit is mere compliance with minimum legal requirements shall not be allowed

2. Truthfulness

This sounds quite obvious, but it is better when it is said:
• If it is claimed on the product that it contains a specific ingredient, the ingredient shall be deliberately present
• Ingredient claims referring to the properties of a specific ingredient shall not imply that the finished product has the same properties when it does not
• Marketing communications shall not imply that expressions of opinions (note: for instance, consumers’ comments …) are verified claims unless the opinion reflects verifiable evidence.

3. Evidential support

Claims cannot only be claimed, they should be evidenced:
• Claims for cosmetic products, whether explicit or implicit, shall be supported by adequate and verifiable evidence, which shall take into account state of the art practices
• The level of evidence or substantiation shall be consistent with the type of claim being made, in particular for claims where lack of efficacy may cause a safety problem

However, legislators consider consumers also need to use their common sense!
• Statements of clear exaggeration which are not to be taken literally by the average end user (hyperbole) or statements of an abstract nature shall not require substantiation

4. Honesty

Exaggeration does have its own limits though:
• Presentations of a product’s performance shall not go beyond the available supporting evidence

5. Fairness

There should be no unfair competition:
• Claims for cosmetic products shall be objective and shall not denigrate the competitors, nor shall they denigrate ingredients legally used (note: As a reminder, parabens are legal ingredients)
• Claims for cosmetic products shall not create confusion with the product of a competitor

6. Informed decision-making

Better not trust technical, abstruse mumbo-jumbo: it probably conceals a feeble claim:
• Claims shall be clear and understandable to the average end user
• Claims shall contain information allowing the average end user to make an informed choice
• Marketing communications shall take into account the capacity of the target audience (population of relevant Member States or segments of the population, e.g. end users of different age and gender) to comprehend the communication. Marketing communications shall be clear, precise, relevant and understandable by the target audience.

Finally, it should be noted that this Regulation 655/2013 is designed to apply to “claims in the form of texts, names, trademarks, pictures and figurative or other signs that convey explicitly or implicitly product characteristics or functions in the labelling, the making available on the market and advertising of cosmetic products. It shall apply to any claim, irrespective of the medium or type of marketing tool used, the product functions claimed, and the target audience.” ### And then what?

The principles have been laid down, and are now applicable since they have the force of… Regulation. What happens if they are not, or badly, applied?

The Common Criteria apply to cosmetic products, and therefore do not apply, the text specifies, “when it has been assessed that the product in question is indeed a cosmetic product. It is for the national competent authorities and national courts to decide on a case-by-case basis which regulatory framework applies.”

And if non-compliances are observed, it is the responsibility of the same competent authorities to forward the information to the European Commission.
And be careful, Article 20 of the Cosmetics Regulation provides that “by 11 July 2016, the Commission shall submit to the European Parliament and the Council a report regarding the use of claims based on the Common Criteria. If the report concludes that claims used in respect of cosmetic products are not in conformity with the Common Criteria, the Commission shall take appropriate measures to ensure compliance in cooperation with the Member States.” This means that if the European Commission finds that these basic rules have not been followed, it may decide to tighten the regulatory framework, for example by defining a restrictive list of authorised claims, based on the principle of the rule already prevailing in the food sector.
A perspective that the cosmetics industry has every interest to avoid….

For further information
• Go to the full text of Regulation 655/2013

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