3.3.3. Aesthetic Products / treatments and similar

Annex I, N. 9 also applies in relation to products or services, such as for instance cosmetics, aesthetic treatments, wellness products and similar, which (based on the way they are marketed) are intended to produce certain improvements of the physical conditions of human or animal bodies but whose marketing is not necessarily regulated by overriding sector specific legislation.

As regards cosmetics products, the Directive 76/768/EEC provides that "Member States shall take all measures necessary to ensure that in the labelling, presentation for sale and advertising of cosmetic products, the wording, use of names, trade marks, images or other signs, figurative or otherwise, suggesting a characteristic which the products in question do not possess, shall be prohibited" (Article 6 (2)).

Annex I point 17 of the Directive on Unfair Commercial Practices thus complements these specific rules and applies to wellness products which are not cosmetics or to false claims which are not covered by specific rules.

Examples include traders who claim that their products can make your hair grow back or claims for detox foot patches which will improve the functioning of kidneys.

In order not to trigger the prohibition, traders must be able to substantiate any factual claims of this type with scientific evidence. The fact that the burden of proof rests on the trader appears to be a logical enforcement approach reflecting the principle, more broadly formulated in Article 12 of the Directive whereby "Member States shall confer upon the courts or administrative authorities powers enabling them in the civil or administrative proceedings [...]: (a) to require the trader to furnish evidence as to the accuracy of factual claims in relation to a commercial practice if, taking into account the legitimate interest of the trader and any other party to the proceedings, such a requirement appears appropriate on the basis of the circumstances of the particular case".

From a trader's perspective, failure to produce the appropriate and relevant evidence on the physical effects that a consumer can expect from a product's use will trigger the prohibition of Annex I, N. 17 on the basis of the fact that the claim is false.

Footnotes

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