6 Key Regulatory Rules for Entry into The Cosmetics Market

This article is written by Nicolas Carbonnelle, a Regulatory lawyer at leading international law firm Bird & Bird LLP. Nicolas advises beauty, luxury, wellness and other retail brands on the regulatory questions that arise in the course of their business at all stages of their products’ lifecycle, from R&D to commercialisation, including compliance with the EU Cosmetics Regulation and the EU Regulation on the Registration, Evaluation, and Authorization of Chemicals (REACH) and related regulations and labelling requirements and advice on the classification of borderline products.

Regulation of cosmetic products in the EU is fast-moving and constantly evolving – new restrictions and requirements are introduced on a regular basis.  The main framework regulation governing the commercialisation of cosmetic products in the EU has been amended more than 30 times since it came into force.

Updates to the applicable rules are often made to update the list of substances which are prohibited for use in cosmetic products, the list of products which may only be used subject to certain restrictions, and the list of UV filters which are allowed in cosmetic products.

Changes can also be implemented for health and safety reasons, or for environmental reasons.  For example, microplastics have been under close scrutiny over the last years and are expected to be banned from the EU market in the near future – they have already been banned in the UK and in certain EU Member States.

Whenever changes are made to the applicable regulations, it is vital to ensure that your product still complies with the relevant requirements, or whether you need to change your product formulation or product labels in order to remain compliant.

In the crowded and competitive space of cosmetics, marketing plays a major role in making a product stand out and in communicating its key benefits.  But it’s vital to make sure your marketing claims are valid.

The applicable regulations allow claims to be made in product advertising and on product labelling (be it by way of text, names, trade marks, pictures or signs), provided that they are valid and do not imply that the product has characteristics or functions it does not actually have.

Whilst the validity of a claim has to be assessed on a case-by-case basis, the applicable laws set out the following six criteria which help evaluate the validity of product claims:

• legal compliance
• truthfulness
• evidential support
• honesty
• fairness
• informed decision-making.

In this area as well, enforcement and oversight is within the remit of national authorities.

Ensuring product and marketing compliance at any time is the first duty of businesses placing cosmetic products on the market, which is a challenging task given that regulations change at a fast pace.

It is also important to keep in mind that despite a deep harmonisation of the regulations on cosmetics at EU level, these regulations are enforced by national authorities, meaning that divergences in interpretation may still exist, in particular in respect of borderline products classification.

Launching a cosmetics brand or a new cosmetic product therefore requires careful assessment and preparation.

Businesses active on both sides of the Channel are also advised to monitor the consequences of Brexit.  The EU regulations described above will continue to apply during the current transition period, allowing business-as-usual to continue, but it is advisable to plan ahead and anticipate the changes that may come thereafter.

As a preliminary step, UK-based businesses selling in the EU should ensure they either have a presence in the EU or have nominated a “responsible person” for their products in the EU.