Monday, July 1, 2019Sector

The prohibition of "Free-from..." claims: a misreading of the law and an infringement of freedom, for Cosmébio

La position de Cosmébio sur l'interdiction des allégations "Sans..."

Is the prohibition of “Free-from…” claims on the labels of cosmetic products justified or is it an attack against natural and organic cosmetics? Does it have a real legal basis? No, replies Romain Ruth, who sees in this measure an erroneous and abusive interpretation of the opposable law and an unjustified infringement of freedom, of innovative brands as well as of consumers. On July 1, 2017, the date of its entry into force, the Chairman of the Board of Directors of Cosmébio answered CosmeticOBS’ questions.

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CosmeticOBS : Why defend the “Free-from…” claims?

Romain Ruth: What guided us at Cosmébio in the beginning was the consumer’s desire and the idea was to allow him to have a truly organic and natural cosmetic, even though cosmetics “inspired by nature” were flourishing but which did not have the beginning of a natural ingredient in their formula. From the beginning, we wanted to ban what was obviously not natural, and which the consumer no longer wanted. At the beginning of the 2000s, we found ourselves in the vanguard of certain controversies that subsequently affected cosmetics, in particular that of parabens.
But then, it was conventional cosmetics, as a parade but also with opportunism, that began to want to cling to the movement by simply displaying “Free-from parabens”.
And today, the state of the art is that in the consumer’s mind, natural cosmetics can be identified by the Cosmébio label and the mention “Paraben-free”. And rather than going in its direction with elements of transparency, we want to ensure that the “Free-from…” disappears from packaging. In fact, they want to prevent us from communicating information that is requested by the consumer.
Cosmébio does not plead for a cosmetic that is systematically “Free-from…”, but for the freedom to be able to say it in complete transparency to the consumer. We do not see why we should not be allowed to say “Free-from aluminum salts” for people who want to keep a natural breath, or “Free-from sulfates” for people who use keratin to straighten their hair… or “Free-from parabens” for people who want the most natural cosmetics possible.

CosmeticOBS : But this prohibition is based on regulatory texts?

Romain Ruth: Many Cosmébio members consider that this obligation to remove the “Free-from…” claims is mainly intended to hit organic cosmetics. But regardless of why this measure was taken, if we have an orthodox reading of the Regulation on the Common Criteria, we find that we are faced with an abusive interpretation of the text which, in reality, does not prohibit this type of reference. This measure is not legally justified. The only mandatory text, European Regulation 655/2013 on Common Criteria, prohibits the denigration of an ingredient. Denigration, legally, has a very specific meaning, and it does not mean saying “Free-from…”. Is the mere fact of saying that an ingredient is not present in a formula a denigration? I don’t think so, especially when you have a justification for avoiding it.
Basically, it is in fact an over-interpretation to say that the denigration of the ingredient comes from the simple fact that it is reported missing. The only text that has legal force is the Common Criteria Regulation, and at no time does it explicitly state that “Paraben-free” is prohibited. The guidelines that say so are only an interpretative circular.
And where this broad interpretation is particularly problematic is that normally, in a democracy, everything that is prohibited must result from a law. Over-interpretation is not allowed, on the contrary, it is necessary to under-interpret in favour of freedom. In French law, teleological interpretation is prohibited, which means that you do not have the right to seek the purpose of the law, you just have to look at what it says, and apply it as it is written. The law must always be strictly interpreted, especially when it affects a freedom. Now we are doing exactly the opposite. I do not see in the name of what, and of what right in the strict sense of the word, we would be deprived of a freedom, especially when the consumer wants it.

CosmeticOBS : Now that this ban has come into effect, what will organic cosmetic do?

Romain Ruth: Some try by all means to create new constraints, or to make people believe that a constraint exists when it does not exist. They are playing all sides to ensure that organic cosmetics are cornered, and the risk is that the control authorities will be influenced. These constraints are multiplying, and are systematically at the expense of the same ones, i.e. the emerging cosmetic that is organic cosmetics.
The result today is that some purchasing groups are taking the lead and reject products that claim a “Free-from”. It is likely that the big players will abandon them in order not to take the risk of having their products rejected by distributors. And for the smaller players, who remain the most vulnerable, the threat is even greater, especially if the supervisory authorities issue an injunction or request the withdrawal of products. This type of measure favours large players who have the ability to respond, to be fair, to build a case, and indeed, can lead to some form of concentration. But there may be some resistance, and not only from the smaller actors.
For our part, we simply want to defend the freedom of organic cosmetics to communicate when it wants, as it wants, with the full range of communication it can have. This brutal ban, without any explanation, without legal basis, sincerely, seems delusional.

Maybe then the “Free-from…” could become positive, with a “Free-fromparaben…” on the front of the label and an explanation on the back of the reason why this commitment was made… A position which, for Romain Ruth, would not be legally reprehensible…

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