Insights

On 17 December 2020, the European Court of Justice (the “Court”) delivered a preliminary ruling on the mandatory indications which must be shown on the labelling of cosmetic products. The preliminary ruling concerned the product function requirements and the related translation requirements for cosmetic products as imposed under Regulation (EC) No 1223/2009 on cosmetic products (the “Regulation”).

Case C-667/19 developed from a preliminary ruling request from the Commercial Appeals Division of the Warsaw Regional Court (the “Regional Court”) and which request was made in the proceedings in the names of A.M. v E.M.

Background to the legal dispute

A.M. who owns a beauty salon in Poland purchased creams, facial masks, and powders (all cosmetic products) from a manufacturer based in the United States through E.M. who is the EU-based distributor of such products. The packaging of the mentioned products included the name of the responsible entity, the original name of the cosmetic product, its composition, expiry date, a serial number and a ‘symbol’ which invited the respective users to refer to the product’s accompanying catalogue which contained all the relevant information in the Polish language.

A.M. proceeded to terminate the sale-purchase agreement and further instituted a litigious action against E.M. and this on the basis that the packaging of the cosmetic products did not provide information in the Polish language about the function of the product and that the symbol referring to the catalogue did comply with the Regulation because the same catalogue was not attached or enclosed within the packaging of the respective cosmetic products.

The Polish lower court dismissed A.M.’s claim for reimbursement of the purchasing cost of the cosmetic products. Upon appeal, the Regional Court filed a preliminary reference before the Court requesting that the Court provides guidance with regards to the dispute and further clarity in relation to the Regulation.

Understanding the labelling requirements established under the Regulation

In 2013, the Regulation replaced the previous EU Cosmetics Directive. The intent of the ‘new’ Regulation is to build on the requirements established under the Directive and further ensure that the health of consumers is protected by means of proper monitoring and that the relevant EU agencies are aware of the composition, labelling, and safety requirements which are imposed with regards to cosmetic and personal care products which are advertised and sold within the European Union.

By way of reference, a cosmetic product is defined under the Regulation as any substance or mixture intended to be placed in contact with the external parts of the human body (epidermis, hair system, nails, lips and external genital organs) or with the teeth and the mucous membranes of the oral cavity with a view exclusively or mainly to cleaning them, perfuming them, changing their appearance, protecting them, keeping them in good condition or correcting body odours.

A cosmetic product made available on the market shall be safe for human health under normal or reasonably foreseeable conditions of use which take into account, amongst other factors, the labelling requirements established within the same Regulation.

Article 19 of the Regulation provides that cosmetic products shall be made available within the European market only where the container and packaging of the same product bears certain mandatory information which is indelible, easily legible and visible lettering. The mentioned Article, which is subject to a number of exceptions as stipulated within the same Regulation, requires labels of cosmetic products to include inter alia the name or registered name and the address of the responsible person, the nominal content at the time of packaging (given by weight or volume), the date of minimum durability, particular precautions to be observed in use, the batch number, the function of the cosmetic product, the list of ingredients.

Referral to the Court

In this instance, the Court was tasked with providing further clarity with regards to the provisions of the Regulation relating to the labelling requirements of cosmetic products. The preliminary requests of the Regional Court to the Court were two-fold:

1. to clarify whether the Regulation requires the label of cosmetic products to include only the essential function and/or purpose of a cosmetic product or whether the label should provide a more detailed and explanatory overview of all the functions that allow for the identification of the specific properties of the product; and
2. to clarify whether the precautions, ingredients list and the product’s function (all labelling obligations under the Regulation) can be listed in a separate company catalogue and this by inserting a mere symbol on the product packaging.

With regards to the first preliminary question, the Court concluded that the information as to the ‘function of a cosmetic product’ which must appear on such a products’ container and packaging must be such as to inform consumers clearly as to the products’ purpose and method of use, to ensure that consumers can use that product safely, and this without negatively affecting their health. The Court clarified that it is not enough for the product labelling to simply state the general purposes for which the product is to be used. The Court further emphasised the role which such product labels play to ensure that the end consumer has the complete information on the safe use of such products.

Whilst clarifying the general requirement, the Court further provided that it is then up to the national courts, in the light of the characteristics and properties of the product concerned as well as the expectations of the average consumer, to review the nature and extent of the information which must appear on the product’s packaging and container so that it can be used without risk to human health.

On the second preliminary question, the Court provides that when an additional reference must be provided, only an ‘enclosed or attached leaflet, label, tape, tag or card’ may be used as supporting documentation for the cosmetic product.

The Court further clarifies that such a catalogue can only be used where it is impossible due to practical reasons to place the relevant information on the label of the product. In this instance, the Court considered that the fact that the cosmetic products had been imported and that the products needed to be re-packaged so that the packaging is translated into language which is determined by the respective law of the Member State in question does not in itself establish that it is impossible to place the information on the label. The cost of labelling such cosmetic products in a different language to market them in other Member States cannot in any case be regarded as justifying incomplete labelling of the product on its container and its packaging. The Court reasoned that,

“such a requirement ensures a high level of protection for consumers. Protection of health cannot in fact be fully guaranteed if consumers are not in a position to familiarise themselves fully with, and to understand, in particular, the information concerning the function of the cosmetic product concerned and the particular precautions to be observed when using it.“

Concluding comments

This judgment echoes the objective which the European Union sought when introducing the Regulation back in 2013. The preliminary ruling of the Court is a testament of the Regulation’s main priority which is to take all necessary measures to continue to ensure consumers’ safety when using such cosmetic products.

First published in The Malta Independent.