The answers to these questions cannot be found in the European Directive on Cosmetics (not even in the Regulation , which will replace it in July 2013). These documents stick with the definition of a cosmetic product, " A cosmetic product is any substance or preparation intended to be placed in contact with the various external parts of the human body or with the teeth and the mucous membranes of the oral cavity, with a view exclusively or mainly to cleaning them, perfuming them, changing their appearance, and/or correcting body odours, and/or protecting them or keeping them in good condition ".
"Intended to be placed in contact with the various external parts of the human body" does not give any clue to the future of the product after its application; there is nothing in the Directive or in the Regulation that prevents it to go deeper in the skin … Further, in these more than 150-page texts, moisturizing is unheard of …
The inception of this mention dates back to an old opinion by then BVP (the French acronym for the Advertising Verification Office), now ARPP (Advertising Professional Regulatory Authority), issued in October 1998. In its Recommendations Hygiene and Beauty, the word moisturizing is defined as follows:
1/ moisturizing cosmetic products are products that improve or maintain the epidermis water balance.
2/ products claimed as able to moisturize the skin’s deep layers are considered as medicines.
Where does such a differentiation come from?
Keep in mind that a cosmetic product may come only with cosmetic claims and that its allegations must never make one think it is a medicine. Only a medicine may, on the one hand, cure or prevent diseases and, on the other hand, "restore, correct or modify physiologic functions".
The trouble with a moisturizing product, even if a cosmetic product is that, in essence, it is designed to interact with the skin cells to supply them with water or help them keep their water balance. Then, it has a distinct action on a physiological function of the body. It is a typical example of a "border-line" product, difficult to classify and then, difficult to regulate …
Knowing this, one may better understand the explanations by the BVP.
So far, no mandatory labelling is enforced. The ARPP (previously BVP), in fact, is a private agency, run by professionals, and its recommendations are not enforceable. It is the sole responsibility of the manufacturer to follow them.
However, a European Directive on advertising states that a professional should follow the recommendations and codes of ethics dealing with its business on the national-level …
Another recommendation, by the French DGCCRF , published within a short time after the BVP document, stated that, " to prevent any mix-up in the consumer’s mind about the extent of the moisturizing effect of a product, it is advisable, as a minimum, to add to any label or advertisement dealing with this product a mention such as ‘moisturizing of the top layers of the epidermis’. "
Well, though this is not mandatory, there was, nevertheless, a strong pressure by the French sanitary authorities; all the French manufacturers of cosmetics decided to follow the suggestion by writing the mention adorned with an asterisk, in small letters. This mention is sometimes a bit "adjusted": upper layers, superficial layers, impregnation of the superficial layers …: a few words, small on the label … that may prevent any question during a control by the authorities.
Less and less obligations
The situation may have been unchanged, but the last two codes for cosmetic products, published by the ARPP in 2006 and 2009 respectively, have changed the starting point.
In these papers, indeed, the paragraph "Allegations ‘moisturizing’" comes now as, " moisturizing products are intended to improve or maintain the epidermis water balance. A cosmetic product cannot be claimed as able to moisturize deep inside the skin".
No longer, any clear mention of any difference with a medicine, and though it may be understood in different ways, there is no longer any recommendation about the moisturizing of the epidermis superficial layers. It is enough that no "action, deep down", is claimed.
Professionals have "transformed" this as "no longer mandatory". So, why is it still so often on the labels? It is still a way to prevent any administrative hassle by the sanitary authorities, if controlled. Even if the moisturizing claimed shall still be sustained, the product is not suspected to let a doubt enter the consumers’ mind as to its true efficiency.
Further, when the professionals and the consumers are accustomed to a mention, it is somewhat difficult to get rid of …