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