www.cossma.com MARKETING bWm
Advertising and promotion of cosmetic products
I
n addition to the imminent application of the new EU Cosmetics Regulation it is also possible that current changes to HWG (German law governing the promotion of medicines) which also applies to the promotion of cosmetic products in §27 para. 2 of the LFGB, may herald a certain liberalisation in the promotion of cosmetics.
The amendment to the HWG due to the 16th German medicines act has liberalised the field of drug advertising. So, for example, the banning of advertising to anyone other than to the general body of professional medical people has been lifted, and impacts to the following extent: – “Professional opinions, attestations, scientific or professional publications as well as references thereto” (§11 para. 1 point 1 of the HWG old version) or – “the illustrated presentation of persons in professional work-wear or exercising the activities of members of the medical profession, healers or medical distribution businesses” (§11 para. 1 point 4 of the HWG old version) or – “foreign or technically oriented product names, insofar as they are not used in general German parlance” (§11 para. 1 point 6 of the HWG old version) or
14
YeiicW I _ HFGI
photo: Yuri Arcurs, Shutterstock.com
– “publications that indicate certain specific illnesses, pains, corporal damage or other sufferings that people could possibly diagnose themselves and using the medicines, articles, processes, treatments or other procedures in the advertisement, treat themselves or follow appropriate methods detailed in audio-visual media“ (§11 para. 1 point. 10 of the HWG old version). The importance of this liberalisation for the cosmetics industry’s promotional activities is however from two points of view really very small and in a few weeks will even be meaningless. If laws banning specific promotions, such as in the medicines law (HWG) are simply lifted or liberalised this does not mean that the prohibitions previously carried in the HWG are now permitted for cosmetics. The rules in the HWG apply to cosmetics adver-
tising and promotion only where the specific cosmetic product refers to a particular and defined illness. The HWG therefore refers to cosmetics advertising only where the promotional message “refers to the diagnosis, cure or relief of illness or suffering etc in humans or animals” (§1 para. 1 point 2 of the HWG). A promotional message that claims to prevent illness or painful symptoms is not covered in the HWG. A promotion for a cosmetic product that is based on helping with some form of illness is a basic problem and so in practice is rarely used because according to the legal definition of cosmetics (§2 para. 5 of the LFGB) the stated cosmetic objective must be the principal aim. It is not a matter of “medical skin care” or “skin care with a therapeutic action” where the cosmetic objective is clearly the principal object of the claim. It is more a question
www.cossma.com bWm
of whether a product, because of its “presentation” (including the promotional activities for that product) is regarded as a freely marketable cosmetic or as a pharmaceutical product that requires approval1. If a substance in a cosmetic product claims a curing or relieving action with regard to any sort of illness then such a product will be seen as a pharmaceutical in its presentation. Even when, according to the HWG, public advertising of cosmetics that claim, at least partially, to help cure an illness, is not explicitly forbidden, this has no impact with regard to the problem of definition and classification.
The general view is that there will also be parameters and/or examples covering illness-related advertising of cosmetic products. This should at the end
Downloads Additional information at www.cossma.com/download or you can just scan the QR code! Your access codes for March: User name: cossma3 Password: body
cosmetic creations
of the day lead to a better understanding of the common criteria and examples, and avoid misleading or illegal advertising.
We are currently not far from the legal application of the HWG in the matter of advertising claims regarding illness (cure or relief) and cosmetic products. From July 11th, 2013, the new EU Cosmetics Regulation will come immediately into force in all EU member countries. Even if German legislators change the LFGB and/or the HWG with respect to cosmetics the new EU Cosmetics Regulation will immediately take precedence. Because the advertising of cosmetics is regulated by article 20 of the new EU Cosmetics Regulation any national advertising legislation covering cosmetics will no longer be valid on July 11th, 2013. According to the new EU Cosmetics Regulation no data or pointers may be used in the advertising of cosmetics which claim characteristics or functions that the products referred to do not possess (ban on deception). Furthermore the EU Regulation states that the Commission, working together with the member states is setting out a list of “common criteria” for advertising claims which are justifiable and legally acceptable, and which may be used in promotional messages about cosmetic products (Art. 20 para. 2 of the EU Cosmetics Regulation). The common criteria are currently being finalised but will probably not be published before the middle of 2013. The general parameters are planned to be published as an EU Regulation and as an attachment expanded by guidelines with examples, probably also covering natural cosmetics.
MARKETING
There is therefore no duty to gain approval for claims, thus none of the legal certainty about cosmetics advertising that we had hoped for. Even in the closely controlled area of foods advertising that makes health claims practice, and in particular the directly relevant legal statements, have shown that in individual cases there are a lot of questions to be answered. It is a fact that the legislation covering foodstuffs (EU Regulation Nr. 1924/2006 – Health Claims Reg.) includes a positive list of authorised health claims for food, so that from that we can expect a great deal of legal guidance. However, in the application of approved health claims (EU Regulation 432/2012) it can be seen that in individual cases, e.g. because of a general impression being awoken, that there is a risk of misguidance or deception. Thus in practice the advertising will continue to be assessed as a one-off case of risk assessment. The authorities, and companies, may still have their traditional desire for legal security, but this desire is, in real terms, still as difficult to find as justice in court. 1
see BayVGH, Beschl. v. 16.02.2012, Az.: 9 CS 11.2908. Further information can be found on the Internet (see Internet panel)
Premium protection for beauty products. Polyfoil® tubes from Neopac are known for:
Fascinating look and touch All-around printing with offset, flexo, silkscreen and hotstamping. High restoring force of the tube, softtouch, brushed and metallic effects.
Excellent protection of fillings Protection against light, diffusion-tight, water vapour, corrosion. A variety of airless tubes from 15–150 ml.
User-friendliness Applicators such as pumps, roll-ons, SofTips™ serum droppers, cool-tips, single-dose tubes, quick threads for an easy opening.
Sustainability and quality Neopac is certified according to ISO 9001, ISO 14001 and ISO 15378. All colors and lacquers are solventless and UV-curing. Thin wall tubes with light weight caps are available as a standard.
www.neopac.com Visit our stand at Cosmoprof, Hall 29, A/14–B/13
www.cossma.com
E 51 2 8 0
COSMETICS S P R AY T E C H N O L O G Y MARKETING
Targeted changes to the figure
China – latest market and product trends
Fragrance allergies – a stormy subject
Cosmopack 2013 – what new ideas can we look forward to?
VIP of the Month
Dr. Andreas Reinhart of the legal firm Meyer. Rechtsanwälte discusses the impact of the new Cosmetics Directive on cosmetics advertising
Focus: Body care
3 / 2 013 www.cossma.com