EN   EN 
 
 
 EUROPEAN  
COMMISSION   
Brussels, XXX  
SANTE/10018/2022 
(POOL/E4/2022/10018/10018 -EN.docx)  
[…](2022) XXX  draft  
 
COMMISSION IMPLEMENTING DECISION  
of XXX  
determining whether a product containing ' Capsicum  oleoresin expeller pressed' is a 
biocidal product, pursuant to Article 3(3) of Regulation (EU) No 528/2012 of the 
European Parliament and of the Council  
(Text with EEA relevance)  
This draft has not been adopted or endorsed by the European Commission. Any 
views expressed are the preliminary views of the Commission services and may not 
in any circumstances be regarded as stating an official position of the Commission.    
EN 1  EN COMMISSION IMPLEMENTING DECISION  
of XXX  
determining whether a product containing ' Capsicum  oleoresin expeller pressed' is a 
biocidal product, pursuant to Article 3(3) of Regulation (EU) No 528/2012 of the 
European Parliament and of the Council  
(Text with EEA relevance)  
THE EUROPEAN COMMISSION,  
Having regard to the Treaty on the Functioning of t he European Union , 
Having regard to Regulation (EU) No  528/2012 of the European Parliament and of the 
Council of 22  May 2012 concerning the making available on the market and use of biocidal 
products1, and in particular Article  3(3) thereof,  
Whereas:  
(1) On 8 September 2021 , Belgium  requested the Commission to decide  whether  a 
product  which contains ‘Capsicum  oleoresin expeller pressed’ and  is marketed  in 
Belgium  by the manufacturer as a repellent against cats and dogs  (‘the product’ ), is a 
biocidal product as defined in  Article 3(1) , point (a), of Regulati on (EU) No 528/2012 . 
(2) According to the information provided by Belgium, the product is a spray for use  in 
outdoor  spaces and on outdoor surfaces ( such as  terraces, gardens, fences, etc.) in 
order to deter  cats and dogs from those spaces and surfaces .  
(3) According to Article 3(2) of Regulation (EU)  No 528/2012, the definition of 
‘substan ce’ for the purposes of that Regulation is the one laid down in Article 3(1) of 
Regulation (EC) No 1907/2006 , which  defines  a substance as a chemical element and 
its compounds in the natural state or obtaine d by any manufacturing process.  
(4) According to t he guidance of the European Chemicals Agency , whole living or 
unprocessed dead organisms or parts thereof (for instance , branches, fruits or flowers  
etc.) are not considered substances within the meaning of Regulation (EC) No 
1907/20062. 
(5) ‘Capsicum oleoresin expeller pressed ’ is an oily organic resin obtained by expeller 
pressing from the fruits of plants of the Capsicum  genus. Consequently, ‘Capsicum  
oleoresin expeller pressed ’ is made of compound s of chemical elements  in the natural 
state, but is not a whole living or unprocessed dead organism or parts thereof .  
                                                 
1 OJ L  167, 27.6.2012, p.  1. 
2 Guidance for Annex V - Exemptions from the obligation to register  (see page 19), available at 
https://echa.europ a.eu/documents/10162/2324906/annex_v_en.pdf/8db56598 -f7b7-41ba -91df-
c55f9f626545   
EN 2  EN (6) Furthermore, a ccording to the information on the European Chemicals Agency  
website , Capsicum  oleoresin is a substance , identified by CAS Registry N umber 8023 -
77-63.  
(7) ‘Capsicum  oleoresin expeller pressed’ should therefore be considered as a substance 
within the meaning of Article 3( 1) of Regulation (EC) No 1907/20 06, and 
consequently, in accordance with Article 3(2), point (a), of Regulation (EU) No 
528/2012, it should be considered also as a substance within the meaning of  that 
Regulation.  
(8) Under certain circumstances, c ats and dogs may have an unwanted presence or a 
detrimental effect on humans , their activities or the products they use or produce and, 
therefore, could  fall within the definition of a harmful organism within the meaning of 
Article 3(1) , point (g), of Regulation (EU) No 528/2012 . Since ‘ Capsicum  oleoresin 
expeller pressed’ contained in the product is intended to have an action against such 
harmful organisms, it is an active substance within the meaning of Article 3(1), point 
(c), of that Regulation.  
(9) Given that the  product contains an active substan ce and is intended  to deter  harmful 
organism by a mode of action that is not merely physical or mechanical , the product 
should be considered  a biocidal product as defined in  Article 3(1) , point (a), of 
Regulation (EU) No 528/2012 . 
(10) Product -type 19, as defined in Annex V to Regulation (EU) No 528/2012, includes 
products used to control harmful organisms by repelling or att racting them. Since the 
product  is used with the intention of repelling cats and dogs , such use falls under the 
description of product -type 19 . 
(11) The measures provided for in this Decis ion are in accordance with the opinion of the 
Standing  Committee on Biocidal Products,  
HAS ADOPTED THIS DECISION:  
Article 1  
A product containing ‘ Capsicum  oleoresin expeller pressed’ used for the purpose of repelling 
cats and dogs , shall be considered a biocidal product within the meaning of Article 3(1) , point 
(a), of Regulation (EU) No 528/2012  and shall fall within product -type 19 as defined in 
Annex V to that Regulation.  
Article 2 
This Decision shall enter into force on the twentieth day following that of its publication in 
the Official Journal of the European Union . 
Done at Brussels,  
 For the Commission  
 The President  
 Ursula VON DER LEYEN  
                                                 
3 https://echa.europa.eu/substance -information/ -
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