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25 February 2010
The so-called 'natural' cosmetics market is constantly growing, as is the market for organic cosmetics. The two are sometimes confused.(1)
Markets always precede regulation. The natural cosmetics market is no exception and for the time being is subject to disparate rules.
Unlike food products,(2) cosmetics are governed by no specific regulations on added-value labelling or advertising claims. No EU text exists in this field, although this may change in the near future. The new EU Regulation on Cosmetic Products (1223/2009) replaces EU Directive 76/768/EEC. Article 20 provides that the European Commission will establish criteria which must be met when using advertising claims for cosmetics. The commission will also produce a report on levels of compliance with the new criteria. If the criteria are not being met, the commission may take appropriate measures (ie, regulate the use of claims).
No regulation(3) defines the legal status of a claim that a cosmetic is 'natural'. Only general rules apply, such as a prohibition against misleading consumers and an obligation to justify the truthfulness of claims.
These general obligations derive from the EU Cosmetics Regulation and general laws which are applicable to products, such as those on unfair commercial practices,(4) and the obligations of the first party to introduce a product to the market.
Other non-regulatory sources
Other non-mandatory sources of law (ie, soft law) are also relevant. These sources include documents issued by official institutions (eg, Council of Europe expert committee guidelines) and private institutions.
Compliance with these documents provides relative legal security (presumption of conformity). Non-compliance is risky, as it may lead to a presumption of non-conformity.
The courts adopt the same analysis with respect to professional codes of practice, which are documents that define the conditions of use of certain expressions or claims.(5)
With respect to cosmetics, the Council of Europe has issued guidelines on the conditions of use of 'natural' claims.(6) The cosmetics industry has as yet adopted no code of practice for natural cosmetics.(7)
The most significant rules on natural cosmetics were provided by professional associations and certification bodies and took the form of private standards.(8) Two such standards are the Cosmetic Organic and Natural (Cosmos) Standard and the International Natural and Organic Cosmetics Association (NaTrue) Standard.
As a last resort, the courts will determine whether a product that is described as 'natural' is entitled to make such claim or whether it is misleading.
There have been few decisions on this topic, but European Court of Justice (ECJ) decisions on food products and cosmetics are illustrative.
The ECJ has held that a member state cannot force a stakeholder to indicate on the labelling of its cosmetics whether the flavourings and fragrances are of natural or synthetic origin. According to the ECJ, the regulation on the naturalness of an ingredient or cosmetic cannot be imposed: it is voluntary.(9)
The ECJ also ruled that the accidental presence of contaminants (ie, heavy metals) did not prevent a jam producer from claiming that its product was 'purely natural'.(10) It is possible that this decision could be applied to cosmetics.
Definition of a 'natural cosmetic'
Various similar definitions of 'natural cosmetics' exist.
Council of Europe guidelines
The guidelines define a 'natural cosmetic' as a product consisting of natural substances of botanical, mineral or animal origin, exclusively obtained through physical, microbiological or enzymatic methods, with certain exceptions for fragrances and preservatives.
This standard does not define natural cosmetics. However, it establishes rules and guidelines which must be complied with for a product to display the Cosmos certification on its packaging.
According to this standard, 'natural cosmetics' are products exclusively manufactured from natural substances. 'Natural substances' are substances of botanic or inorganic mineral or animal origin (except dead vertebrates), and substances that are made up of a mixture of other substances and reactions. These substances must be obtained or processed following authorized manufacturing processes.
Under certain conditions, natural cosmetics can contain "natural-identical substances" (Annex 2a of the standard), "nature-identical inorganic pigments and minerals" (Annex 2b of the standard) and "nearly natural substances" (ie, substances which are not natural, but are manufactured using processes which are modelled on physiological mechanisms).
Compatible with naturalness
The Council of Europe guidelines specify that natural ingredients must be obtained by physical methods (eg, extrusion or filtration) or microbiological or enzymatic methods only.
Annexes 1 and 2 of the Cosmos standard list authorized physical manufacturing methods for natural cosmetics.
According to the NaTrue standard, with respect to the recovery and processing of natural substances, the only authorized physical processes and extraction methods are those using purifying agents (extraction and cleaning or purification) listed in Annex 1a and pH-adjusting agents listed in Annex 1b. Enzymatic or microbiological processes are permitted where they use only naturally occurring enzymes or micro-organisms.
With respect to genetically modified organisms, the natural raw materials, enzymes and micro-organisms must meet the requirements of the EU Regulation on Organic Farming (834/2007).
Incompatible with naturalness
Annex 3 of the Cosmos standard includes a non-exhaustive list of prohibited methods.
According to NaTrue, raw materials of plant or animal origin cannot be subjected to ionizing radiation. The use of chlorine is not permitted for bleaching purposes.
For use in natural cosmetics, additives must be included in the lists set out by the regulation and comply with conditions of use.(11)
Unlike food products, the use of certain additives is not incompatible with a cosmetic's claim of naturalness (eg, nature-identical preservatives of certain emulsifiers and colouring). The use of synthetic substances is generally prohibited.(12) However, the use of such additives must be notified to consumers on the labelling.
The Council of Europe guidelines provide a restrictive list of nature-identical preservatives(13) which can be used in natural cosmetics. Natural cosmetics which use such preservatives must clearly state the words 'preserved with', with the name of the preservative beside the words 'natural cosmetic'.
The guidelines also authorize the use in natural cosmetics of certain emulsifiers obtained from natural substances by hydrolysis, esterification or re-esterification. No additional labelling requirements are imposed.
Annexes 4,5 and 6 of the Cosmos standard include three lists on additives and other substances that are authorized for use in natural cosmetics. They include five preservatives authorized by Annex 6 of EU Directive 76/768/EEC.(14)
Annex 2a of the NaTrue standard includes a list of nature-identical preservatives that can be used in natural cosmetics and indicates that the use of these substances must be stated on the packaging. Annex B includes a list of the nature-identical inorganic pigments and minerals approved for use in the manufacturing of natural cosmetics. It includes almost the same preservatives as those set out in the Cosmos standard.(15)
The NaTrue standard provides that only natural fragrances (ie, essential oils) set out in International Organization for Standardization ISO 9035 are permitted in natural cosmetics. Isolates of essential oils exclusively reconstructed from the oils are also permitted. Synthetic fragrances and chemically modified natural fragrances are prohibited in natural cosmetics.
The NaTrue standard specifies that surfactants must be biodegradable, according to the terms of the EU Detergents Regulation (648/2004).
The various standards prohibit certain other materials and processes that are incompatible with natural cosmetics, such as the use of genetically modified organisms or nanomaterials, irradiation processes and animal testing. They also impose the use of certain materials (eg, recyclable packaging).
At least three categories of 'natural' claims exist, whose conditions of use are different.
The standards and guidelines on natural cosmetics define only the conditions under which cosmetics can be qualified as natural; they fail to specify the way in which claims should be worded. This is the case with the Council of Europe expert committee guidelines, the Cosmos guidelines(16) and the NaTrue guidelines. The wording of claims is regulated by administrative notices.
Claim concerns entire cosmetic
This is the case where the wording 'natural cosmetic' is used. The Council of Europe guidelines accept the use of this wording when the product meets all requirements.
Claim concerns only one or several ingredients
This is the case where the wording '100% natural extracts' is used. The cosmetic in its entirety does not meet the requirements of naturalness, but certain ingredients do. The ingredients in question must meet the conditions of naturalness.
Claim mentions 'reduced naturalness'
This is the case where the wording 'natural preservative' is used. The product in its entirety does not meet the criteria of naturalness and the ingredient in question is not natural, but is of natural origin.
The absence of specific regulation and the disparity between private standards and administrative interpretations on natural cosmetics create insecurity in the cosmetics sector. In theory, stakeholders should check the conditions of use for 'natural' claims in each country(17) and adapt the composition of products or their marketing accordingly.
Several possible solutions exist:
The association's code of practice was applied to tea-based products by the EU Tea Committee. This is the solution that can succeed most quickly if the industry wishes to be governed by specific rules on natural cosmetics.(18)
As manufacturers are unwilling to apply common rules on a voluntary basis, the courts may need to step in to clarify the rules.(19)
For further information on this topic please contact Antoine De Brosses or Sylvie Gallage-Alwis at Lovells by telephone (+33 1 53 67 47 47), fax (+33 1 53 67 47 48) or email (firstname.lastname@example.org or email@example.com). The Lovells website can be accessed at www.lovells.com.
(1) An organic cosmetic is invariably natural. However, the reverse is not necessarily the case: a natural cosmetic can include substances that do not result from organic farming, but from conventional farming.
(3) Although Article 16 of EU Regulation 1334/2008/EC - which defines the conditions under which flavouring used in a food product can be qualified as natural - seems to apply to cosmetics, the administration authorities applied the rules of natural flavourings to 'natural' additives used in food products by analogy.
(7) The EU Cosmetics Association noted that the interpretation of the term 'natural' varied between member states due to the existence of different rules. The association is working to adopt a code of practice on naturalness.
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