Insights and Analysis

Court of Justice clarifies cosmetics labelling requirements in the EU

04 January 2021

In a judgment on 17 December 2020, the Court of Justice of the European Union (EU) provided a preliminary ruling on consumer information for cosmetic products according to Regulation (EC) No 1223/2009. The Court’s decision in case C-667/19 concerns labelling requirements regarding the information that must appear on the container and packaging, following a request for a preliminary ruling from the Regional Court of Warsaw, Poland, concerning an imported cosmetic product (ex-EU). The main question was which information must be labelled on the container and packaging, and whether it is sufficient that an imported cosmetic product bears a graphic symbol (‘hand with a book’) referring to a product catalogue drafted in the language of the consumer. The Court’s interpretation is important for the scope of labelling requirements and options for references. The latter also has an impact on the digitalization of product information.

Container and packaging: Function of the cosmetic product

Article 19(1)(f) Regulation (EC) No 1223/2009¹ provides that cosmetic products shall be made available on the market only where the container and packaging of cosmetic products bears the function of the cosmetic product in indelible, easily legible, and visible lettering, unless it is clear from its presentation. The preliminary ruling of 17 December 2020 clarifies the meaning of “function of the cosmetic product”.² The Court held in its ruling that it is not sufficient to provide information on the function of the cosmetic product as defined in Article 2(1)(a) Regulation (EC) No 1223/2009, i.e. cleaning, perfuming, changing appearance, protecting, keeping in good condition of one of the mentioned parts of the human body, or correcting body odors. Article 19(1)(f) Regulation (EC) No 1223/2009 must be interpreted as meaning that the “function of the product” to be mentioned on the container and packaging must be appropriate for clearly informing the consumer about application and use of the product so as to ensure usage of the product without endangering health and safety.

The Court also provided guidance for the referring court on how to establish the manner and scale of the information to be mentioned on the container and packaging to enable use of the product without endangering health and safety. The assessment shall consider the characteristics and properties of the cosmetic product, and the expectations of an average consumer who is reasonably well informed and reasonably observant and circumspect.

On the other hand, the Court also provided guidance on the limitations of this interpretation. It states that “function of the cosmetic product” in the meaning of Article 19(1)(f) Regulation (EC) No 1223/2009 must not be confused with product claims in the meaning of Article 20 of that regulation. The purpose of product claims is to provide a larger amount of information about characteristics and properties of products. Therefore detailed information about the properties of the cosmetic product, in particular about intended effects and the targeted population, do not form part of the information which is to be mentioned as “function of the cosmetic product” according to Article 19(1)(f) Regulation (EC) No 1223/2009.

Enclosed or attached: Reference to product catalogue not sufficient

The Court further interpreted Article 19(2) Regulation (EC) No 1223/2009. Where it is impossible for practical reasons to label the information mentioned in Article 19(1)(d) and (g) – i.e. particular precautions to be observed in use and list of ingredients – the Regulation requires that the information shall be mentioned on an enclosed or attached leaflet, label, tape, tag, or card. Unless impracticable, this information shall be referred to by abbreviated information or the symbol given in point 1 of Annex VII, which must appear on the container or packaging. The question at stake was whether it is possible to provide this information relating to precautions to be observed in use, the function of the product, and the list of ingredients in a company catalogue (which is supplied independently of the cosmetic product sold and also includes other products) and to mark on the packaging only the symbol³ provided for in point 1 of Annex VII to the Regulation. The Court pointed to the requirement that information must be “enclosed or attached”. A company catalogue which is supplied independently of the cosmetic product sold and which also includes other products is neither enclosed nor attached in the sense of Article 19(2) Regulation (EC) No 1223/2009 according to the Court’s interpretation. Furthermore, the Court pointed to the notion of “impossibility for practical reasons” which would relate to cases where it is factually impossible to provide certain information due to the nature or appearance of the product. Organizational or financial difficulties resulting from the necessity to translate certain information and to re-label or re-package products cannot be considered as “impossibility” in this sense according to the Court.

Perspective

The Court’s decision is important for cross-border trade of cosmetic products. It serves as a reminder about the necessity to provide certain information attached or enclosed and enable consumers to take note of this labelling. The interpretation draws a line between product claims and information to be included as labelling.

Language requirements must be checked under the law of the Member States in which the product is made available to the end user. The Court’s interpretation restricts the possibilities for reference to external documents for certain labelling information. It is important to keep an eye on this interpretation with a view to digitalization of consumer information.