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Influential NGO Calls for Investigation into EU’s Unlawful Handling of Nanomaterials Issue in Cosmetic Products Law

On 31 July 2017, ClientEarth, a non-profit environmental organisation, complained to the European Ombudsman, an independent and impartial body that holds EU institutions, bodies, offices and agencies to account. The complaint alleges maladministration in the European Commission as regards publication of a list of nano-chemicals contained in cosmetics.

Nanomaterials, as described on the Commission’s website, are “chemical substances or materials that are manufactured and used at a very small scale” (they can be as small as one-millionth of a millimetre). They are “developed to exhibit novel characteristics (such as increased strength, chemical reactivity or conductivity) compared to the same material without nanoscale features”.

That said, the small size of nanoparticles is also a cause for health and safety, and environmental concern. When compared with larger particles of the same chemical, they have a higher surface-to-volume ratio and are more readily absorbed into the body. As a result, there is a fear that they are generally more toxic. There is much uncertainty about the tangible risks they pose but it has been suggested that they have inflammatory and gene-altering effects.

In light of the danger that these substances may pose to consumers, Article 16 (10)(a) of the European Cosmetics Regulation (Regulation 1223/2009) required the Commission to publish a catalogue of all nanomaterials used in cosmetic products placed on the market. The list was to be regularly updated and made publicly available.

Originally due by 11 January 2014, the Commission continually delayed publishing the catalogue until 12 July 2017. Hong Kong traders might find it odd that despite the three and a half years delay, the list still does not inform consumers which cosmetics contain potentially harmful nanomaterials or what risks they pose to human health.

ClientEarth argues that the Commission unlawfully delayed publication of the list in the first place. Further, even after the list was finally published, it did not contain the information required by consumers to make informed decisions. Thus, ClientEarth is of the view that the Commission has breached consumers’ information rights, and the European Ombudsman ought to open an investigation into the matter.

The Commission’s conduct is viewed as surprising as it had itself stated during a European Parliamentary debate in 2009 that the new rules on cosmetics would provide “… greater security and greater transparency for consumers… [and] improve the level of information provided to consumers”. The alleged unlawful handling of the publication of the catalogue is felt to protect the cosmetics industry rather than consumers.

Additionally, ClientEarth pointed out that the Commission claimed the list did not exist when ClientEarth requested it, and had also misinterpreted EU court precedent on access to documents in order to keep the information secret.

Should the Ombudsman find fault with the Commission and require it to publish a proper list as foreseen by the legislation, Hong Kong traders should keep an eye out for that list. It would mean consumers will be better informed and may even be less likely to purchase cosmetics containing nanoparticles.

Please click on the following to view the Commission’s existing catalogue of nanomaterials used in cosmetic products placed on the EU market.

Content provided by Picture: HKTDC Research
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