[co-author: Silvia López Arnao]

On 12 November 2020, the European Commission’s Sub-Working Group on Borderline Products published a technical document concerning product claims related to leave-on hydro alcoholic hand gels within the context of COVID-19 pandemic. This technical document provides a list of product claims which would not support the classification of leave-on hydro alcoholic hand gels as cosmetic products. The guidance is intended to serve as a tool for national competent authorities and national courts

On 12 November 2020, the European Commission’s Sub-Working Group on Borderline Products published a technical document concerning product claims related to leave-on hydro alcoholic hand gels within the context of COVID-19 pandemic. The technical document complements the Working Group on Cosmetic Product’s Manual on the Scope of the Application of the Cosmetics Regulation and the European Commission’s guidance on the applicable legislation for leave-on hand cleaners and hand disinfectants.

The Sub-Working Group on Borderline Products acknowledges in its guidance that national competent authorities and national courts must classify each product on a case-by-case basis, taking into consideration all product characteristics. Product claims can, however, be a strong indication of the main purpose of a product.

The technical document provides examples of product claims that are likely to give rise to the perception that a hand gel has a mainly biocidal function. These product claims should be considered misleading when affixed to hand gels placed on the market as cosmetic products. Consequently, no explicit or implicit biocidal claims may be placed on cosmetic products. This prohibition applies irrespective of the medium or type of marketing tool used for the products concerned.

All examples listed in the technical document are illustrative and the list is, therefore, not exhaustive.

Labelling elements not to be used on cosmetic products

Manufacturers of cosmetic products must not use the following product claims in relation to their products:

• Product claims using the terms antibacterial, antimicrobial, antiviral, virucide, antifungal, disinfecting, sanitizer, or antiseptic. Labelling which claims that the product kills a certain percentage of bacteria, viruses, or microbes is also not allowed. It is also not possible to provide that the product’s formulation is recommended by the World Health Organisation (“WHO”). Any claim that provides that the product is anti-COVID-19, anti-coronavirus, or anti-SARS is also not permitted.
• References or allusions to infection, pandemic, or diseases cannot be used. Allusions to COVID-19, coronavirus, SARS-CoV-2, microorganisms, bacteria, viruses, and pathogens are equally not allowed. No reference can be made to a medical use of the product or to the percentage of alcohol in the product.
• Pictures or graphical elements of coronavirus, bacteria, or microbes are not permitted. Pictures of red cross, when suggesting a medical connotation, are also not allowed. This is also the case for pictures of shields and STOP signs, when they indicate protection against microorganisms. Use of any sign related to a hospital, pharmacy, ambulance, or first aid, is also precluded for these products.

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