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Cosmetic Claims – Focus on ‘Free From’ Claims

01/07/2019

Introduction

In Europe, cosmetic claims are covered by Article 20 of the Cosmetic Products Regulation (EC) No. 1223/2009 (CPR) and Regulation (EU) No. 655/2013 - Common Criteria for Justification of Claims.  The six Common Criteria for claims are Legal Compliance, Truthfulness, Evidential Support, Honesty, Fairness, Informed Decision-Making.  Companies can view the CTPA Guide to Advertising Claims and the Confidence in Cosmetic Claims booklet to gain an in-depth understanding of the regulatory framework for claims in the UK and EU. 

The European Commission’s Technical Document on Cosmetic Claims was updated and agreed by the EU Commission’s Sub-working Group on Claims (3 July 2017).  The aim of the document, which is meant to be a collection of best practices, is to provide guidance to enforcement authorities in the Member States for the case-by-case application of the Common Criteria.  The Technical Document is not legally-binding and does not reflect an official position of the European Commission.  Only the European Court of Justice (ECJ) can give authoritative interpretation.  However, it does reflect a common understanding of national competent authorities, several of which have already indicated their intention to apply the guidance given in this document.  Annexes I and II (published in 2013) are already being applied; Annexes III and IV are bringing new elements which apply as of 1 July 2019.  Annex III looks at how the six Common Criteria apply to ‘free-from’ claims; Annex IV gives guidance on ‘hypoallergenic’ claims.  This document is also work in progress and subject to modifications.

‘Free From’ Claims

Annex III of the Technical Document on Cosmetic Claims is a guidance that provides an interpretation by the EU Commission of how the Common Criteria apply to ‘free from’ claims.  As mentioned in the above introduction, the guidance is not legally binding, however the Common Criteria are.  Companies would therefore be expected to provide different and robust interpretation if they want to continue to make ‘free from’ claims in the EU. 

CTPA has created the CTPA Help Note on ‘free from’ claims to help companies understand the European Commission’s Technical Document on cosmetic claims.  The Help Note reviews how the Common Criteria for cosmetic claims also apply to ‘free from’ claims.  

CTPA has also updated its Confidence in Cosmetics booklet, which contains information that explains to consumers the safety of key ingredients, many of which are currently targeted by ‘free from’ claims.  The booklet also encourages consumers not to look for products free from certain ingredients, whilst explaining how ingredients can be easily identified on the ingredients list if they have a known allergy or sensitivity to certain ingredients.  More consumer-facing information can also be found on thefactsabout.

CTPA call to action to companies

The EU CPR states that all ingredients used in cosmetic products must be safe.  Safety of specific ingredients is regularly reviewed by the Scientific Committee on Consumer Safety (SCCS), an independent group of scientists who advises the EU Commission.  If an ingredient was found to be unsafe, as it is used in a cosmetic product, it would be banned from use under the strict laws for cosmetics.  Many ‘free from’ claims perpetuate myths on safe and legally allowed ingredients, fostering a negative perception around the safety and uses of cosmetic ingredients, which in turn has led to safe and effective ingredients no longer being used.  The damage to the trust and reputation such action has on the industry should not be underestimated.

When making ‘free from’ claims, as with all cosmetic claims, companies should consider the understanding of the averagely well-informed consumer and therefore the message the consumer is likely to understand when reading the claim.  In the case of ‘free from’ claims, consumers may act based on negative perception such claims could infer around the safety of cosmetic ingredients.  Companies should also consider if there is a real benefit to the consumer for a product to be identifiable as free from certain ingredients.  In most cases, there is no justification for this.  Ultimately, consumers could be led to think that a cosmetic product featuring certain ‘free from’ claims is safer than another product that doesn’t have those claims, which cannot be true.  According to the CPR, all cosmetic products must be safe. 

CTPA strongly recommends companies follow the guidance of the Technical Document.  We would encourage the use of claims that talk more positively about the ingredients being used and the innovative benefits they impart, rather than the absence of ingredients.