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Fact sheet: Misleading marketing of cosmetics

Article 20 of the Cosmetic Regulation prohibits misleading marketing of cosmetic products. Labels, sales packaging and advertisements for cosmetic products must not use text, names, trademarks, pictures and figurative or other signs that imply that these products have characteristics or functions which they do not have.

“Marketing” has a broad definition and includes the product name, labelling, packaging and advertising.

It is not possible to specify fixed rules that define misleading marketing. It will always depend on a specific assessment of the product in question and its marketing. The EU has adopted common criteria on the justification of claims on cosmetic products, which helps the interpretation of article 20 in the Cosmetic Regulation.

Interpretation of various claims in relation to the misleading marketing regulations

The Environmental Protection Agency will base its evaluation of whether any given marketing is misleading on the perceptions the claims invoke for a reasonably informed and attentive average consumer.

In practice, no chemical substance or product is absolutely harmless. Statements such as “harmless” and “not harmful” will therefore generally be considered misleading in relation to the risk associated with the product.

“Free of allergenic substances”

It is not possible to guarantee that a cosmetic product would not be able to provoke an allergic reaction in highly sensitive individuals. Allergy is very individual and the claim above can hardly be documented. Thus, claims on the absence of allergenic substances are regarded as misleading. 

“Free of endocrine disrupting substances”

Since there can be no assurance that all endocrine disrupting substances are known, there is no guarantee that a cosmetic product is free of substances with endocrine-disrupting potential. The claim is thus misleading. 

“Free of CMR-substances”

Like the example on endocrine disrupting substances above, there can be no assurance that all CMR-substances (carcinogenic, mutagenic, reprotoxic substances) are known. Chemical substances classified as CMR are as a general rule banned in cosmetic products. There are some exceptions – read more here

“Perfume-free”, “unscented”, “no perfume added” claims

The “perfume-free” and “unscented” claims indicate that the product does not contain perfume, regardless of whether the substance has been added for another purpose, while “no perfume added” indicates that perfume has not actively been added. However, consumers are unlikely to distinguish between the various expressions. They will presumably all be taken to mean that the product does not contain perfume.

The EU has introduced compulsory declaration for 26 specific perfumes. If the product is labelled with one of the above claims and yet also contains one of these 26 allergenic perfumes, this will always be considered misleading marketing, regardless of the function the substance serves in the product. The same applies to all other known perfumes. (1)

Essential oils and plant extracts may contain perfumes. If an essential oil or plant extract contains perfume, the above claims may not be used.

“Mild”, “gentle” or “naturally occurring” claim

It is not possible to define in advance whether claims such as “mild”, “gentle” or “naturally occurring” constitute misleading marketing. Consumers will presumably interpret these expressions in varying ways. Each product and its marketing must therefore be assessed individually.

Marketing coordinators considering using the above claims may draw on the following guidelines:

  • Expressions such as “mild, “gentle” and “naturally occurring” may create an expectation in the mind of the consumer that the product is better than other products. The marketing coordinator should therefore be very careful about using these expressions if the product contains a strong allergen. A strong allergen is a substance that has been found in practice to provoke an allergic reaction in a significant number of people.
  • Expressions such as “mild, “gentle” and “naturally occurring” should not be used for products with a pH value above 12 or below 4.
  • Consumers may interpret “mild, “gentle” and “naturally occurring” claims as relating to something other than the pH value – such as the ingredients that have been used. It must therefore be clearly stated what these claims refer to, for example, the product’s properties, individual substances, the packaging, or something else.

“Ecological”

The claim that a product is “ecological” or “contains ecological ingredients” must be substantiated. The Danish Consumer Ombudsman has published a Guidance on the use of environmental and ethical claims in marketing. According to this guidance a cosmetic product can use the claim ecological if at least 95 % of its ingredients/substances (except added water) derive from certified organic production, which is covered by Regulation (EC) no. 834/2007 on organic production and labeling of organic products, etc.

If the product can not immediately meet the stated criteria, it must be examined individually, if a product can be marketed as organic. Private ecology certifications can be considered in that evaluation.  

If the product cannot be described as organic in general it is possible to specify the content of certified organic substances in percent.

Organic and partly organic cosmetic products are not applicable to pose a minor risk in terms of health, for example in relation to allergy. Claims which suggest that organic products are for instance less allergenic or otherwise pose a lower health risk than other similar products will in principle be considered misleading.

Substantiation

Article 11 in the Cosmetic Regulation lists which information the Responsible person must hold and which the competent authorities must have easy access to. This includes proof of the effect claimed for the cosmetic product, where justified by the nature or the effect of the cosmetic product.

As an example, the Responsible person must be able to substantiate that a sun protection product has the SPF-factor it claims to have.

General statements regarding effects arising from the normal use of particular product groups do not require documentation. This is because it is reasonable to expect that the statement is true, for example, that your hair “shines” after shampooing.

Responsibility

The company which is Responsible Person is responsible for ensuring compliance with the Cosmetic Regulation. If a distributor chooses to change the claims on/for a product – the distributor will become the Responsible Person and will be regarded as Responsible Person for this “new” product instead.

Market surveillance

The Environmental Protection Agency’s chemical inspectors monitor compliance with the Cosmetic Regulation and will ensure that illegal situations are brought into compliance. This may involve withdrawing the product from the Danish market, or making the product legal in some other way. Anyone who breaches the Regulation may additionally face a fine or prison sentence of up to two years.

More information

Regulation (EC) No 1223/2009 on cosmetic products

Commission Regulation (EU) No 655/2013 laying down common criteria for the justification of claims used in relation to cosmetic products.

Guideline to Commission Regulation (EU) 655/2013 

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(1) The aim of declaring the 26 perfumes is to help consumers with known allergies to the substances to avoid products containing these substances.