Cosmetics Producers Face French Court Action Over Nano Labelling

French consumer rights group UFC-Que Choisir has filed a court action against five major cosmetics manufacturers for failing to disclose on the packaging of some products, substances with a "significant proportion" of nanoparticles.

UFC-Que Choisir filed its case after it said tests it commissioned found five out of nine cosmetics products not conforming with the requirement.

The cosmetics Regulation lays down specific rules for the use of nanomaterials. They must be on the label in the list of ingredients, with the word 'nano' in brackets following the name of the substance, the European Commission says.

The producers, products and substance and detected percentage of nanoforms in the case are:

Colgate-Palmolive – Sanex deodorant (aluminium oxide - 31% nano);

Lavera – sunscreen (titanium dioxide - 100% nano);

Avene – Cold Cream lip balm (titanium dioxide - 100% nano);

Coty – Effet 3D lipgloss from Bourjois (iron oxide - 100% nano); and

GlaxoSmithKline – Aquafresh toothpaste (titanium dioxide - 40% nano).

The definition of a nanomaterial under the cosmetics Regulation is: ‘Insoluble or biopersistent and intentionally manufactured material with one or more external dimensions, or an internal structure, on the scale from 1 to 100nm.'

A threshold of 50% appears in the non-binding EU definition of them in the Commission Recommendation from 2011. The legally binding definition for cosmetics does not refer to this, the Commission says.

Certain groups of nanomaterials must be authorised by the Commission prior to their use in the products. It has authorised three UV-filters as nanomaterials: titanium dioxide (nano), zinc oxide (nano) and tris-biphenyl triazine (nano). It has also allowed carbon black (nano) for use as a colourant in cosmetic products. Iron oxide is authorised for this use, but not in the form of a nanomaterial.

Methodology in question
UFC-Que Choisir said a new methodology used in its tests allowed experts to "concretely visualise the primary particles constituting the targeted substance" under a scanning electron microscope.

The method showed with "incontestable reliability" the proportion of nanoparticles in the substances it targeted, it added. All nine tested products had nanomaterials in those substances, and five of them – although not the same five it took action against – had them entirely in nanoform, but some were labelled correctly.

GlaxoSmithKline said its Aquafresh toothpaste "does not require a nanomaterial declaration (nano titanium dioxide) on the label" according to the EU cosmetics Regulation. And it will "defend proceedings that relate to this allegation".

The company would also "welcome the opportunity to understand more from Que Choisir about the testing methodology, techniques, results and interpretation used in their laboratory tests", marketing director Martine Frey said.

Aurélie Clanchet, director of communications at Avene, said the Cold Cream lip balm does not contain nanomaterials and "our raw material suppliers issued certificates that testifies it". The company also questioned the methodology used in the NGO’s tests.

The other three manufacturers did not respond in time for publication. Meanwhile, the French cosmetics association (FEBEA) said that cosmetics manufacturers don't have to label the presence of any single nanoparticle. "Manufacturers need to have reliable information from their raw material suppliers. But we consider that cosmetic manufacturers properly label their nano-ingredients. We have no evidence that there is any mislabelling."

Cosmetics Europe said it could not comment without further insight into the methodology and individual company test results.

UFC-Que Choisir's investigation comes hot on the heels of a separate report from the French government consumer watchdog DGCCRF in mid-January, which revealed the extent of faulty nano labelling in cosmetics products.

The NGO has asked the DGCCRF and the French economy ministry to publish a list of 'silent' products containing nanoparticles. And "to effectively prosecute the manufacturers in violation of the regulations".