Keywords
Summary

Keywords

Approximation of laws - Cosmetic products - Packaging and labelling - Directive 76/768 - Measures to prevent advertising attributing to cosmetic products characteristics which they do not possess - Ban on the importing or marketing of a cosmetic product whose name includes the term `lifting' - Whether permissible - Condition - Whether such a name is misleading - To be assessed by the national courts

(EC Treaty, Arts 30 and 36 (now, after amendment, Arts 28 EC and 30 EC); Council Directive 76/768, Art. 6(3))

Summary

$$Article 6(3) of Directive 76/768 on the approximation of the laws of the Member States relating to cosmetic products requires the Member States to take all measures necessary to ensure that, in the labelling, putting up for sale and advertising of cosmetic products, text, names, trade marks, pictures and figurative or other signs do not attribute to those products characteristics which they do not possess. Thus, on the one hand, that provision defines the measures to be taken in the interests of consumer protection and fair trading, which rank among the imperative requirements which may justify restrictions on the free movement of goods within the meaning of Article 30 of the Treaty (now, after amendment, Article 28 EC); on the other, it seeks to protect human health, within the meaning of Article 36 of the Treaty (now, after amendment, Article 30 EC), in so far as any information which is misleading as to the characteristics of such products could have an impact on public health.

Those provisions do not preclude the application of national legislation which prohibits the importation and marketing of a cosmetic product whose name incorporates the term `lifting' in cases where the average consumer, reasonably well informed and reasonably observant and circumspect, is misled by that name, believing it to imply that the product possesses characteristics which it does not have.

It is for the national court to decide, having regard to the presumed expectations of the average consumer, whether the name is misleading. Community law does not preclude the national court, should it experience particular difficulty in deciding whether or not the name at issue is misleading, from commissioning, in accordance with its national law, a survey of public opinion or an expert opinion for the purposes of clarification.

(see paras 24-25, 32 and operative part)