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Six Common Criteria for Cosmetic Claims in the EU
By: Chris Flower, PhD, CTPA
Posted: October 8, 2013, from the October 2013 issue of Cosmetics & Toiletries.
Claims on cosmetic products are an essential way for cosmetic manufacturers to explain to their customer what the product does and why they should buy it instead of something else. If a manufacturer makes false or misleading claims, they are likely to alienate their most precious asset, the loyal customer. However, one person’s inventive presentation of their product’s credentials may be another person’s misleading claim; therefore, certain rules must be established to draw the line.
For many years, rules governing claims in the EU were established by the member states’ self-regulatory organizations, such as the Advertising Standards Authority in the UK, whose codes of practice not only apply the laws surrounding advertising but also consider national character and issues such as taste and decency. There has been no change to this well-established way of ensuring that advertising is legal, decent, honest and truthful, and the system of self-regulation will continue in the EU member states. Under the Cosmetics Directive, manufacturers ensured that claims could be substantiated, and the evidence was available in the Product Information File.
However, in European Cosmetics Regulation No. 1223/2009, the European Commission (EC) has chosen to regulate cosmetic claims in addition to these existing regimes, saying that consumers should be protected from misleading claims concerning efficacy and other characteristics of cosmetic products. This is covered specifically in Article 20. The first paragraph states “In the labeling, . . . 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.” The second paragraph sets out the process by which the EC will develop a list of the common criteria justifying the use of a claim. The third paragraph covers claims relating to animal testing, and is essentially unchanged from the text of the European Cosmetics Directive.
The process for establishing the common criteria for claims has been completed, and this list was published in the Official Journal of the European Union on July 10, 2013 (L 190/31), as Regulation (EU) No. 655/2013. As a European Regulation, the text is directly applicable in all of the member states of the EU. There are six criteria identified, and for a claim to be compliant, it must conform to all six: legal compliance, truthfulness, evidential support, honesty, fairness and informed decision-making. Furthermore, the definition of a claim is broad, and includes text, names, trademarks, pictures and figurative or other signs (such as logos) that convey, explicitly or implicitly, product functions or characteristics. This applies irrespective of the medium or marketing tool used, the product functions claimed and the target audience. Compliance is the responsibility of the same person defined elsewhere in the Cosmetics Regulation as the Responsible Person. Although a manufacturer should consult the official text for the exact wording of the common criteria, a summary of the main provisions follows.
A cosmetic manufacturer may neither claim that a product has been approved or authorized by a competent authority, nor claim that the product complies with the minimum legal requirements. There is no authorization process for cosmetic products in the EU, and all products must comply with the legal requirements. When determining the acceptability of a claim, review the perception of the average end-user of a cosmetic product—one who is well-informed, observant and circumspect. Social, cultural and linguistic factors in the target market are also to be taken into account. This means that a claim understood by a specific target audience is not necessarily misleading just because others do not understand the same claim.