29.10.2011   

EN

Official Journal of the European Union

C 318/40

2.1.1

Claims for cosmetic products are statements made, usually in advertising, with regard to a product’s functions (R. Schueller and P. Romanowski, C&T, January 1998). A claim can be a word, a sentence, a paragraph, or simply an implication. For example: ‘reduces the appearance of fine lines and wrinkles in ten days’ or simply ‘anti-ageing’. Further claims for example ‘100 % grey coverage’ for a hair colorant or ‘70 % of women agreed that their hair was free from flakes after one use’ coming from a consumer perception study for testing an ‘anti-dandruff’ shampoo.

2.1.2

Product claims and advertising, including other forms of marketing communication (these are together referred to as ‘product claims’), are essential tools to inform consumers about the characteristics and qualities of products and to help them choose the products that best suit their needs and expectations. Considering the high relevance of cosmetic products for consumers, it is very important to provide consumers with clear, useful, understandable, comparable and reliable information to allow them informed choices.

2.1.3

Product claims are also essential tools for cosmetic companies to distinguish their products from the competitors and these claims might contribute to the functioning of the internal market by stimulating innovation and fostering competition among companies as well.

2.1.4

For product claims to meet their purposes adequately, that is to serve the consumer’s and also the cosmetic companies’ above described interests, it is important to have an efficient framework in place which ensure that product claims are fair and do not mislead consumers, taking into account the context and the marketing tools (irrespective of whether it is printed material, a TV advertisement or using any kind of new media such as internet and smart phones) in which such claims are shown.

2.2.1

The Cosmetic Products Regulation (Regulation (EC) No 1223/2009, abbreviated as CPR) will fully replace Directive 76/768/EEC on the approximation of the laws of the Member States relating to cosmetic products by July 2013. The new Regulation has as its main objectives to guarantee a high level of consumer protection and to ensure the good functioning of the internal market. The CPR claims that ‘the consumer should be protected from misleading claims concerning efficacy and other characteristics of cosmetic products’.

2.2.2

The CPR only relates to cosmetic products and not to medicinal products, medical devices or biocidal products. For the purpose of the Regulation ‘cosmetic product’ means any substance or mixture intended to be placed in contact with the 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, protecting them, keeping them in good condition or correcting body odours. A substance or mixture intended to be ingested, inhaled, injected or implanted into the human body shall not be considered to be a cosmetic product.

Cosmetic products include, for example, products intended for hair care (shampoos, hair conditioners, etc.), skin care (body lotions, face creams, nail products, etc.), personal hygiene (bath and shower products, toothpaste, deodorants/anti-perspirants, etc.), colour cosmetics (hair dyes, make-up, etc.), fragrances (perfumes, eau de toilette, etc.).

2.2.3

Article 20 of the CPR stipulates that ‘in the advertising of cosmetic products, text, names, trade marks, pictures and figurative or other signs shall not be used to imply that these products have characteristics or functions which they do not have’.

2.2.4

When it comes to misleading product claims, relevant articles of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market (abbreviated as UCP) shall also be taken into account.

2.2.5

Article 6 of the UCP (misleading actions) states that ‘a commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to, among others, the main characteristics of the product, such as fitness for purpose, usage or the results to be expected from its use, or the results and material features of tests or checks carried out on the product’.

2.2.6

Article 7 of the UCP (misleading omissions) reiterates that ‘a commercial practice shall be regarded as misleading if, in its factual context, taking account of all its features and circumstances and the limitations of the communication medium, it omits material information that the average consumer needs, according to the context, to take an informed transactional decision’. The main characteristics of the product included in a product claim shall be regarded as material information (to an extent appropriate to the medium and the product).

2.2.7

Further, advertisers shall also follow the rules laid down in Directive 2006/114/EC on misleading and comparative advertising.

2.3.1

Current European legal and regulatory cases show that different authorities in the Member States interpret the same, above quoted, legislation in different ways hence there is no unified interpretation of the rules for cosmetics claims which place a significant burden on the cosmetics companies operating in the common market because they cannot be sure that their given advertisement which was legal for example in France will not be challenged by the relevant national authorities in Hungary or the UK. Most of the cases have resulted in heavy fines for the cosmetics companies. In 2007, the Hungarian Competition Authority (HCA) claimed for example that since the clinical tests were carried out in the USA and France, no statements as regards to efficiency of cosmetic products supported by percentage-type claims gained from such clinical tests can be used in Hungary. They believe that differences exist as regards to skin types of different countries and geographical areas. As a consequence, results of these tests – carried out under different climate conditions, under different humidity conditions, between women with different eating habits – do not give appropriate information for Hungarian consumers about the efficiency of these cosmetic products. No other EU Member States have come to the same conclusion so far. Moreover, there are different local requirements for ‘natural’, ‘bio’ or ‘organic’ products. Interpreting the law in a different way is also to the disadvantage of consumers as they may be better protected in one Member State than in another.

2.3.2

Differences in interpretation due to lack of common criteria and a practical guidance for product claims make it necessary for the cosmetics companies operating in the internal market to check and review each and every claim and advertisement by themselves in every Member State in order to make sure that they are following the law in the given country. Doing so, these companies incur considerable additional costs which, by implementing a common guidance for cosmetics claims in the EU, might be reduced and the savings could be used for innovation, research and for decreasing the prices of the products. It is worth mentioning that the European cosmetics market represents almost one third of the global cosmetics market, with more than 4 000 companies manufacturing products in the European Union, employing directly and indirectly 1,7 million people.

The necessity for the cosmetics companies operating in the internal market to review and check each and every claim and advertisement in each Member State also means that the internal market does not exist in this market segment.

2.3.3

Differences in interpretation due to lack of a common guidance for cosmetics claims in the EU are not beneficial to consumers either, because they cannot be sure what is the adequate meaning of the given claim when they are buying the same product in different Member States which might lead to confusion among them. If there is no common criteria for example for ‘natural’, ‘bio’ or ‘organic’ products, consumers will be uncertain as regards the real quality of the product. In the current on-line environment, consumers can also easily shop across borders and different products in different countries are available for them within just a ‘clickable distance’. Should they see that using an anti-cellulite product ‘the appearance of cellulite will be reduced in just ten days’, without any further explanatory note in one country, while in other countries the following explanatory note would be shown ‘with regular workout and diet’, they might be confused over the real efficacy of the given product. Moreover, common criteria for claims are needed as consumers should have the possibility to compare different products of the same category (e.g. two types of face cream). To achieve this, all claims need to be easily verifiable by consumers based on common criteria. Only claims that are clear and concrete and are based on generally accepted methods allow consumers to compare products and to make an informed choice that best suits their needs.

2.4.1

According to Article 20 of the CPR the Commission shall, in cooperation with Member States, and after consulting the Scientific Committee for Consumer Safety (SCCS) or other relevant authorities, establish an action plan and adopt a list of common criteria for claims which may be used in respect of cosmetic products taking into account the provisions of the UCP Directive.

2.4.2

The European Commission started to work on the development of common criteria for cosmetic product claims last year and is working together with stakeholders (national authorities, consumer organisations, cosmetics industry, supplier industry, SMEs, etc.). The EESC welcomes the progress of that work as guidelines are in an advance stage of drafting.

2.4.3

By 11 July 2016, the Commission shall submit to the European Parliament and the Council a report regarding the use of claims on the basis of the common criteria adopted. 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, stricter measures to ensure compliance in cooperation with the Member States. In such a case the Commission might need to rethink the scope of the guidance and move from a general guidance to a more detailed approach (e.g. legislative action as it was taken in the case of claims on food products).

2.4.4

The EESC strongly supports the idea of introducing common criteria which would provide a harmonised framework at EU level for justifying the use of claims for all cosmetic products. The criteria shall apply to all cosmetic product claims, be they primary or secondary, across all media, and shall allow the specifics to be tailored to the product, its packaging, the claims and their context, without curtailing innovation and yet ensuring that the same rules are respected.

2.4.5

The EESC considers, however, that the European Commission should speed up this process. If the work on drawing up the common criteria guidelines is indeed at an advanced stage of drafting, the EESC considers that the European Commission should make them operational preferably at the beginning of 2012, allowing the submission of the report to the European Parliament well before 2016.

2.4.6

The European Commission draft guidelines on common criteria currently do not specifically make reference to ‘green claims’. The issue is being discussed at ISO level. However, it is currently difficult to say if agreed standards will be suitable for use in the European Union and when they will be available. The EESC therefore asks the European Commission to consider using new guidelines on ethical and environmental marketing claims by that time (for example on the basis of new guidelines prepared by the Danish Consumer Ombudsman).

2.4.7

The EESC considers that claims should be substantiated by either objective scientific studies (e.g. clinical studies) or subjective consumer perception studies. However, both kinds of studies should meet some generally accepted criteria (number of consumers surveilled, proper representation, etc.) so that they do not mislead consumers.