On November 29, 2018, the European Commission published a Notice to Stakeholders on the "Withdrawal of the United Kingdom and EU rules in the field of cosmetic products"1 (the "Notice")
The Notice provides a useful reminder to companies active in the marketing of cosmetic products in relation to Brexit, i.e., the UK ceasing to be an EU member and becoming a third country as from March 30, 2019, or as from another date provided by the transitional period to be agreed upon by the EU and the UK (the "withdrawal date").2
It, however, addresses neither the more specific issues that companies active in the cosmetic sector may face due to Brexit, such as those related to REACH (e.g. suppliers of ingredients located in the UK) or to customs, nor the general issues such as the GDPR or the adaption of commercial agreements. Therefore, the Notice must be also read in conjunction with other documents published by the EU Commission that are relevant to specific industry sectors.
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Regulation (EC) No 1223/20093 on cosmetics products (the "Cosmetic Regulation") will no longer apply to the UK from the withdrawal date. This will have an impact on the following aspects of the cosmetics industry:
Responsible person: Pursuant to Article 4 of the Cosmetic Regulation, only cosmetic products for which a responsible person (i.e., a legal or natural person responsible for ensuring compliance with regulatory obligations) has been appointed within the EU can be placed on the EU market.
The responsible person is either:
- The manufacturer (or any other designated legal/natural person established in the EU) for cosmetics products manufactured in the EU; or
- The importer (or any other designated legal/natural person established in the EU) for cosmetics products imported into the EU.
The responsible person must be established in the EU (in reality, the EEA, i.e., the EU plus Iceland, Lichtenstein and Norway), which means that from the withdrawal date, responsible persons can no longer be established in the UK. Thus, if the manufacturer of the cosmetic product is established in the UK, an importer has to be appointed in the EEA state.
Cosmetic Product Notification Portal ("CPNP"): In accordance with Article 13(1) of the Cosmetic Regulation, the responsible person must provide to the EU Commission—through the CPNP—a list of information on the cosmetic product before placing it on the market.
The CPNP allows transfer to a responsible person established in the EU the notifications made before the withdrawal date by a responsible person established in the UK. The new manufacturer, or the new importer, will have to amend those notifications.
Moreover, responsible persons can already indicate that, from the withdrawal date, their cosmetic products manufactured in UK will be imported into the EEA (they have to indicate "UK" as country of origin).
Product Information File ("PIF"): Pursuant to Article 11 of the Cosmetic Regulation, the responsible person must keep the PIF—for each cosmetic product—for a period of 10 years.
The PIF must be accessible at the address of the responsible person and in the language of the member state where the responsible person is located. Thus, responsible persons must ensure that, as of the withdrawal date, the PIF is made available in one EEA state different from the UK and that it has been translated in the relevant language.
Labelling: According to Article 19 of the Cosmetic Regulation, the label of a cosmetic product must contain, among other items, (i) the name and address of the responsible person and, in case the product has been imported, (ii) the country of origin. As of the withdrawal date, cosmetic products manufactured in the UK and placed on the EEA market must indicate the UK as country of origin.
1European Commission, DG for Internal Market, Industry, Entrepreneurship and SMEs, Notice to Stakeholders—"Withdrawal of the United Kingdom and EU rules in the field of cosmetic products," November 29, 2018.
2 See the draft "Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Energy Community," agreed at negotiators' level on November 14, 2018.