As provided for in the EU Cosmetics Regulation (EC No 1223/2009, Article 20), the acceptability of cosmetic product claims is determined by their compliance with the common criteria. Established by the EU Commission and the EU Member States, these common criteria are reported in the Regulation EU No 655/2013 and further detailed in guidelines made available on the EU Commission’s website. Six common criteria must be taken into consideration when developing a cosmetic claim: Legal compliance, Truthfulness, Evidential Support, Honesty, Fairness and Informed decision-making.
From day one, the EU Parliament and EU Council feared that the use of common criteria could lead to an ineffective regulation of cosmetic claims in the EU. Indeed, their application often requires an expert evaluation of the information available and a legal interpretation of the common criteria, which can be difficult and highly subjective. Therefore, it was decided to enforce this relatively soft regulatory framework for a few years and then determine whether or not it adequately regulates the market. Indeed, Article 20 of the EU Cosmetics Regulation says:
“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 under the second subparagraph. 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 measures to ensure compliance in cooperation with the Member States.”
On September 19th, the EU Commission handed over its report to the EU Parliament and EU Council, which summarizes in 11 pages how far cosmetic claims are properly regulated in the EU. For this report, the EU Commission used the data provided by 21 EU Member States and covering the analysis of 38995 cosmetic claims. Out of these 38995 cosmetic claims, 3730 were considered as non-compliant (9.6%). It is reported that 70% of the non-compliant claims were found online but only 17% on the actual products and 13% on brochures.
On this basis, the EU Commission concludes that “The existing European regulatory framework for claims and advertising of cosmetic products is very comprehensive and ensures a high level of consumer protection. At the same time, it enables the European cosmetics industry to be competitive within the EU and in the world.” and does not recommend the enforcement of a stricter system for the regulation of claims.
However, the EU Commission recognizes that the current framework does not offer a satisfactory solution for the management of the ‘free from’ and ‘hypoallergenic’ claims. On this point, the EU Commission makes reference to the ongoing work aiming to improve the situation.
To be more specific, the EU Commission and the EU Member States revised the guidelines for the application of the common criteria and added two annexes, one on ‘free from’ claims (annex III) and one on the ‘hypoallergenic’ claim (annex IV). These guidelines are still a draft but should be finalized very soon (in the next few months) with no significant changes expected. Once approved by all EU Member States, the application of these guidelines will become mandatory, albeit with a transition period of 2 years for correcting the claims outlined above.