Manufacturers and distributors must ensure that the information which appears on a cosmetic product’s container and packaging clearly informs consumers as to the product’s purpose and method of use, the Court of Justice of the European Union (CJEU) has recently asserted. The legal obligation to provide such and other information is not satisfied by the mere placing of a symbol on the product referring to a company catalogue.

The cosmetics industry, including products such as soap, shampoo, deodorant and toothpaste as well as perfumes and make-up, is regulated at EU level in order to ensure the safety of such products for use by the consumer as well as the free movement of these same products within the EU.

In terms of EU law, the manufacturer is responsible for the safety of such products and must ensure that they undergo an expert scientific safety assessment before they are sold. One of the measures intended to protect consumers is the obligation to ensure that the product is labelled correctly with certain information, such as content, precautions for use, list of ingredients as well as the function of the product.

The language of some of this information is determined by the law of the member states in which the product is made available to the end user. Distributors of such products are obliged to check for compliance in so far as labelling, including use-by date and language requirements, is concerned.

The facts of this case were briefly as follows. A beauty salon in Poland purchased some cosmetic products from a manufacturer based in the US through an EU-based distributor.

The packaging of the products bore the name of the responsible entity, the original name of the cosmetic product, its composition, expiry date and serial number as well as a symbol, consisting of a hand with an open book, referring to a catalogue containing all the information in Polish.

The salon terminated the contract for the sale of the products, claiming that there was no information on the packaging itself regarding the product’s function in the Polish language. This made it impossible to identify what the product was and what its effects were. It also claimed that the information in Polish, required in terms of both Polish and EU law, appeared only in the catalogue, which was not enclosed with or attached to the product.

Consumer safety is high on the agenda of Europe’s legislators

The salon filed an action seeking reimbursement of the costs incurred in the purchasing of the products but the action was dismissed. Upon appeal, the national appellate court seized of the case filed a preliminary reference before the CJEU requesting the latter for guidance on the matter in terms of EU law.

The CJEU affirmed that one of the primary objectives of the relevant EU regulation is that of ensuring regulatory harmonisation in order to achieve an internal market for cosmetic products while ensuring the protection of human health. It went on to opine that there is a close connection between, on the one hand, the safety of cosmetic products placed on the market and,on the other hand, the requirements concerning their presentation and labelling.

The court highlighted the fact that EU law clearly obliges manufacturers to provide information in indelible, easily legible and visible lettering on the container and on the packaging of cosmetic products including, among others, information as to the function of the cosmetic product.

Such information does not simply refer to the purpose of the product’s use, such as to clean, to perfume, to change the appearance or to correct body odours. The requirement to provide information relating to the function of the cosmetic product goes beyond that, the CJEU asserted. Such information relates to the indi­cation of characteristics more specific to the product which serve to clearly inform consumers as to the product’s purpose and method of use. This ensures that consumers can use the product safely, without negatively affecting their health.

The CJEU concluded that it is up to the national courts to ascertain in each case, depending on the characteristics and properties of the relevant product, as well as the expectations of the average consumer, the nature and extent of the information which must appear in this regard on the product’s packaging and container in order to ensure that the product can be used without risk to human health.

The CJEU then went on to consider whether the use of a symbol on the product’s packaging or container indicating reference to the company catalogue is sufficient for the fulfilment of the legal obligation relating to the labelling of various information.

The court affirmed that EU law provides that when the information cannot, for practical reasons, be provided on the product’s container or packaging, such information must be provided only on an enclosed or attached leaflet, label, tape, tag or card. A reference to a company catalogue, which contains a description of various products, does not satisfy such a requirement.

The CJEU highlighted the fact that supporting documentation may be used only where it is impossible ‘for practical reasons’ to place the information on the label itself. This would be the case where it is impossible in practice, due to the nature and the actual presentation of the product, to place certain information on the label.

Organisational issues and costs involved in order to translate information, relabel or repackage imported cosmetic products in order to ensure compliance with the law are irrelevant when considering whether it is impossible in practice to place the information on the label. Similarly, the claim by the manufacturer or distributor of such products that the reference to only some of the required information was intended to facilitate their movement within the EU is no justification. ‘Impossibility’ refers to a factual circumstance over which the person invoking it has no control, the court affirmed, and is not intended to justify any such claims.

Consumer safety is high on the agenda of Europe’s legislators and such an objective is bolstered by the EU’s judiciary organs. Harmonised rules regulating the labelling of consumer products serve the dual purpose of achieving such an objective as well as that of ensuring a level playing field for all players in the industry.

mariosa@vellacardona.com

Mariosa Vella Cardona, freelance legal consultant

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