RP Focus – Mandate vs Contractual Agreement

From 1 January 2021, the end of the Brexit transition period, there will be a requirement to have an EU-based Responsible Person (RP) to sell cosmetic products in the EU, and a UK-based RP to sell cosmetic products in the UK.  This can be achieved in different ways, as listed below:

Option 1 - via their affiliate (if applicable) located in the EU27 or UK respectively, or by opening a new legal entity;

Option 2 - by appointing a third party based in the EU27 or UK respectively who provides RP services;

Option 3 - by appointing one of their importers in the EU or UK respectively as their RP.

Option 1 would allow for continuity in the supply chain, with the original RP being part of the same company or group as the newly created or designated RP.  There is no need to set up a legal contractual agreement or mandate in this scenario, as it’s the same company having a different office in the area of interest.

For options 2 and 3, there is a need for clarity between commercial agreement for RP services and an RP mandate.  

Under Article 4 of the EU Cosmetics Regulation and of the UK Cosmetics Regulation, the mandate is a solution provided in the case that there could be more than one RP in the EU or UK respectively; or in the case where the brand owner wants to transfer their responsibility to another entity within the EU or UK respectively.  This is because the mandate can only be done between 2 legal entities under the same legislative remit (e.g. 2 UK entities or 2 EU entities).  The mandate is a transfer of responsibility when – for example- the first importer would be automatically considered the RP, but the brand already has an RP. 

When the current EU or UK RP is setting up or appointing an RP in the UK or in the EU27, this is a contractual agreement between the 2 parties (being under 2 separate legislative remits).  This is applicable when for example the current EU27 RP is sourcing the new UK RP using a third-party RP service provider.  

A commercial contract can therefore be established between an EU/UK-based company and another company based outside of the EU or UK, which would allow to enter into representation agreement.