Fact sheet: Misleading marketing of cosmetics

The regulation in the Cosmetics Statutory Order on misleading marketing prohibits the marketing of cosmetic products in a way that misleads consumers about product applications and the risks associated with them. Labels, sales packaging and advertisements for cosmetic products must not use texts, names, labels, depictions or other figures or symbols that attribute less dangerous properties to products than is the case.

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

Cosmetic products include all substances or preparations intended to be placed in contact with the various external parts of the human body (epidermis, hair system, nails, lips and external genital organs) or with the teeth and the mucous membranes of the oral cavity. The aim of such products is purely or primarily to cleaning them, perfume them, changing their appearance and/or correcting body odours and/or protecting them or keeping them in good condition.

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.

In practise, 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.

The authorities must have access to documentation
In addition to the prohibition against misleading marketing, the Cosmetics Statutory Order stipulates that the party responsible for putting the product on the market must ensure the authorities have easy access to the following documentation:

• An evaluation of safety in respect to human health associated with use of the finished product
• The existing data regarding undesirable effects on human health resulting from use of the cosmetic product
• Evidence for the claimed effects of the cosmetic product where this is appropriate given the nature of the effect or product
• Information about all animal tests carried out in connection with safety evaluation or development of the product or its ingredients

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.

“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 (seventh amendment to the Cosmetic Directive). 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.

Such a fallacious claim might mislead the consumer concerning the risks associated with the product.

“Mild”, “gentle” or “naturally occurring” claims
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 practise 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.

General statements
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.

The marketing coordinator is responsible for ensuring compliance with the regulations
The person responsible for marketing is also responsible for ensuring the consumer is not mislead – and that the regulations are complied with. This might be the producer, importer, wholesaler or retail distributor.

The Environmental Protection Agency’s chemical inspectors monitor compliance with the regulations 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 regulations may additionally face a fine or prison sentence of up to two years.

More information
The entire text of the regulations is available (in Danish) on the Retsinfo website:
Statutory Order no. 422 of 4 May 2006 on cosmetic products, with later amendments. Section 11 of the Statutory Order deals with marketing of cosmetic products, and section 33 deals with the documentation the coordinator must hold.

The Marketing Act,
Act no. 839 of 31 August 2009 (in Danish at www.retsinfo.dk), also governs this area. Section 3 of the act stipulates that “incorrect, misleading or unreasonably inadequate descriptors capable of impacting on the supply of or demand for products may not be used …”.

The Marketing Act applies to the marketing of products not subject to special marketing regulations such as the Cosmetic Statutory Order.
Marketing must generally be correct, honest and truthful, and commercial enterprises must act in a loyal and honest manner. The Consumer Ombudsman monitors compliance with the Act. Find out more at the Danish Consumer Agency website: www.forbrug.dk (in Danish)

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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.
 

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