What criteria should be looked for in a product so that I can be a product for a cosmetic?

Wojtek Petlic

In practice, a fairly common problem is misclassification when marketing another consumer product as a cosmetic product. What criteria, according to the law, must a product meet in order to be considered a cosmetic?

The basic action of a cosmetic must be in accordance with its definition, for example, skin lotion, whose primary action is bactericidal, cannot be classified as a cosmetic.

In recent years, there has been a dynamic development of the cosmetics industry, and consequently, the number and availability of cosmetic products on the Polish market is constantly increasing. Cosmetics manufacturers, based on current trends, are outdoing themselves in creating more and more new formulas or product packaging to attract the consumer's attention and encourage him to buy the product. It should be remembered, however, that both the composition and the declarations contained on the packaging of a cosmetic product must comply with the law and, above all, must not mislead the consumer.

Not always, however, cosmetic products that reach the market are safe for consumers and the statements made on the cosmetic label are true. Importantly, the responsibility for the compliance of the product with the law is borne not only by the manufacturer, but in some cases also by the distributor.

Irregularities in cosmetics labeling

The report published in early June this year by the Office of Competition and Consumer Protection (OCCP) on the inspection conducted by the Trade Inspection shows that irregularities related to cosmetics labeling were detected in one in three stores and in the case of one in three tested cosmetics. The inspection was carried out at 295 entrepreneurs (at 276 retail stores and 19 wholesalers), and 119 of them were found to have irregularities.

The most common irregularities were:

- lack of information on the use of the product,

- lack of a list of ingredients,

- lack of a minimum shelf life date,

- lack of marking in Polish.

Some of the inspected products due to their composition and labeling (which suggested that they may be biocidal products) did not meet the definition of a cosmetic product.

What is a cosmetic

ProductIn practice, a fairly common problem is misclassification when marketing another consumer product as a cosmetic product. How a cosmetic product should be defined is determined by Regulation (EC) No. 1223/2009 of the European Parliament and of the Council of November 30, 2009.

According to the aforementioned regulation, the term "cosmetic product" means any substance or mixture intended to come into contact with the external parts of the human body (epidermis, hair, nails, lips and external genitalia) or with the teeth and mucous membranes of the oral cavity, the sole or main purpose of which is to keep them clean, perfume them, change their appearance, protect them, keep them in good condition or correct body odor.

Provided that, in classifying each such product, it must be individually evaluated, taking into account all of its characteristics¹. Products that do not meet the definition of a cosmetic product, or whose characteristics go beyond this definition, are not cosmetics, but products of another category (e.g., medical devices or biocidal products, or medicinal products depending on their scope of action).For a product to be considered a cosmetic, it must simultaneously meet the criteria in the above definition, i.e. its form, place and method of application must comply with the definition of a cosmetic product, while its form must not exceed this definition.

The primary action of a cosmetic should comply with its definitionConsider whether the primary action of a cosmetic complies with its definition, e.g., a skin lotion whose primary action is bactericidal cannot be classified as a cosmetic. On the other hand, however, if the inhibitory effect of the liquid on the development of microorganisms had an additional function, in addition to the primary one, i.e. nurturing, then such a product could be classified as a cosmetic. A similar case was taken by the Regional Administrative Court in Lodz in a judgment dated 12/08/2021, ref. no. III SA/Łd 203/21. The case concerned "antibacterial soothing hand gel", which, due to its composition and declaration on the label, was questioned as a cosmetic by representatives of the State District Sanitary Inspectorate. The WSA agreed with the authority's position that the product, which, according to the label, is an "antibacterial soothing hand gel to ensure adequate levels of hand hygiene without the use of water," containing 65% ethyl alcohol in its composition, should be classified as a biocidal product, since the suggested soothing effect is its secondary, additional function.

In the era of the COVID-19 pandemic, when the demand for disinfectant products was enormous, guidelines² have been published on the European Commission's website relating to claims that should not be used in the labeling of hydroalcoholic, no-rinse gels for hands, classified as cosmetic products. According to the aforementioned guidelines, such claims as antibacterial, antimicrobial, virucidal, disinfectant, kills X% of bacteria/viruses/microbes etc. should not be placed on such products. Additional information on cosmetics packaging - permissible, as long as it is not misleadingWith regard to the information placed on the label or packaging of a cosmetic product, manufacturers, in addition to the information imposed on them by law, are free to include any marketing information, provided that it does not mislead the consumer³. Otherwise, their action may be considered an unfair market practice.Distributors of cosmetics must check the correctness of the labeling on packagingAdditionally, certain obligations related to ensuring the compliance of a cosmetic product with the law are also incumbent on distributors. They are obliged to check that the product has all the legally required labeling and that its minimum shelf life⁴ has not expired. Ultimately, responsibility for any irregularities lies with the person who places the cosmetic product on the market or makes it available on the market; this can be either the distributor, importer or manufacturer of the cosmetic.