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30/10/14: "Lawyered!" - INCI Labelling

So, today is going to be a little bit of a different post.  I'm not going to be reviewing anything or talking about any particular brands or products.  Instead, I'm going to take a look at the legislation surrounding the sale and integrity of cosmetic products.  (So if that's not your bag, feel free to move along.) As a natural/green blogger, I already take an interest in what's on the labels of my products - and as a student studying law, I'm also interested in the legislation that is in place across the EU to protect consumers when purchasing cosmetic items.  

Disclaimer time!  I'm studying towards my LLB but in no way am I a qualified legal expert or anything close.  I still struggle with understanding legislation sometimes, but hopefully I can set out the basics surrounding what is required to sell cosmetics in the UK in particular in relation to ingredients and labelling.  I did also check my understanding was correct with Europe Direct, a helpful source for questions relating to the EU.

The European Union is made up of 28 member states and the law making bodies of the European Union create different types of legislation that affect these member states in different ways.  The two that we are concerned with are Regulations and Directives.  

Regulations are binding across EU member states as soon as they are enacted.  They are immediately incorporated into that country's body of law.  There is no requirement for the nation's executive/legislature (ie. government/parliament in the UK) to do anything to implement the legislation;  it has become part of the national law and affects its citizens in the same way as any domestic statute.  (Note that there is sometimes a time delay between a regulation being enacted and it coming into force).  Regulations are aimed at the citizens of the Member States. 

Directives are not immediately binding across Member States.  Instead they set out a legislative goal and a time-frame for these aims to be achieved.  The executive in each Member State must then enact their own legislation to give effect to the Directive in their country.  Directives are instructions for the government/legislature and not the everyday person on the street.  

The Old Position
Pre-July 2013 the EU legislation that dealt with cosmetics was known as the "Cosmetics Directive 76/768/EC".  As a Directive, this text wasn't legally binding in the UK by itself; it needed a piece of UK legislation to implement it into national law.  

The piece of UK legislation that did this was called "Cosmetic Products (Safety) regulations 2008".  Note here that the word regulation does not refer to the two types of EU law we have looked at above, so I have not capitalised it.  The CPSR had a clear clause that stated that the list of ingredients should be shown in INCI (s.12(2)(a).

However, as you may recall in 2013 there was a shake up and the Cosmetics Directive was replaced with the new Regulation (EC) No 1223/2009*.  This meant that the UK legislation - the CPSR - that had given effect to the old EU Directive was no longer necessary as the new EU Regulation would be directly effective in all member states.  (*It came into force July 2013, but was enacted in 2009.  This period of time gave companies the chance to make sure that they would be compatible with the new law). 

The New Position
Whereas the UK regulations that implemented the Directive had clearly stated that the INCI should be used, the new Regulation 1223/2009 doesn't have a clear clause that can be pointed to.  Instead there are several articles that refer to each other and need to be looked at together to find the requirement. 

Regulation 1223/2009, Article 19(1)
Describes what a cosmetics product label should have, including... "(g) - a list of ingredients. This information may be indicated on the packaging alone. The list shall be preceded by the term 'ingredients'."  So our first requirement is that there must be a list of ingredients.

Regulation 1223/2009, Article 19(6)
"The information mentioned in point (g) of paragraph 1 (above) shall be expressed by using the common ingredient name set out in the glossary provided for in Article 33. In the absence of a common ingredient name, a term as contained in a generally accepted nomenclature shall be used".  Our requirement is now that there must be a list of ingredients expressed in common ingredient names.

Regulation 1223/2009, Article 33
"The Commission shall compile and update a glossary of common ingredient names. To this end, the Commission shall take account of internationally recognised nomenclatures including the International Nomenclature of Cosmetic Ingredients (INCI)."

Okay, so we now finally know that packaging needs to have a list of ingredients (19(1)), expressed using a common ingredient name (19(6)) which can be found in a glossary of common ingredient names (33).  (Note that this glossary is not yet available and Cosing is the recommended alternative.)

From this, it appears to me that the INCI labelling requirement, although not as clearly laid out as before, is most certainly still in existence and companies need to be complying. Although a plain English term such as Cocoa Butter can be used alongside the common ingredient name of "Theobroma Cacao", "Cocoa Butter" could only be displayed on its own if the common ingredient name did not exist.  Therefore, in the overwhelming majority of cases, the list of ingredients found on the back of your cosmetics should be in INCI regardless of where in the EU the product is made.

Good for us?
As the Regulation itself states, the purpose of all member states using the common ingredient names where they are in existence is "to ensure uniform labelling and to facilitate identification of cosmetics ingredients" and this is crucial when dealing with allergies.  Imagine, for example, that there was no international nomenclature and you are allergic to beeswax.  Although you know to lookout for labels with the word beeswax in the ingredients list when you are at home, you are only able to check out products in languages that you speak.  So in France, Germany, Italy, Spain you would also need to make sure you looked for cire d'abeille, Bienenwachs, cera vergine, cera de abejas.  However, with INCI or the common ingredient system you know that you only need to recognise cera alba across any EU country in order to avoid a potential allergen.  It's a requirement that is there for a reason and companies that don't follow it are not only breaking the law but potentially endangering consumers.  

And on that note, I'm going to leave it here!  I hope I haven't bored the pants off you all, and that there's some information here that you found interesting.  I have Sarah @ Sugarpuffish to thank for getting me interested in this area of law again, so you can all blame her! :P  If you're interested in reading more about other requirements covered by the Regulation let me know - obviously INCI is just one small area of this!

Have you experienced issues with products not being labelled correctly; what about when travelling abroad?    

Let me know your experiences down below :)


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4 comments:

Thanks for commenting! For quicker replies find me on Twitter @gfmgfy.

  1. Thanks for tackling this topic Hephzibah. I had a basic grasp of things but this certainly clears up some elements which I wasn't completely confident about :)

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    Replies
    1. You're welcome! I enjoyed researching it - glad it was helpful :) x

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  2. Great, informative post! It's so important that companies get this right x

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