Directive 2003/15/EC of the European Parliament and of the Council

of 27 February 2003

amending Council Directive 76/768/EEC on the approximation of the laws of the Member States relating to cosmetic products

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 95 thereof,

Having regard to the proposal from the Commission(1),

Having regard to the opinion of the European Economic and Social Committee(2),

Acting in accordance with the procedure laid down in Article 251 of the Treaty in the light of the joint text approved by the Conciliation Committee on 3 December 2002(3),

Whereas:

(1) Council Directive 76/768/EEC(4) has comprehensively harmonised the national laws relating to cosmetic products and has as its main objective the protection of public health. To this end, it continues to be indispensable to carry out certain toxicological tests to evaluate the safety of cosmetic products.

(2) The Protocol on protection and welfare of animals annexed by the Treaty of Amsterdam to the Treaty establishing the European Community provides that the Community and the Member States are to pay full regard to the welfare requirements of animals in the implementation of Community policies, in particular with regard to the internal market.

(3) Council Directive 86/609/EEC of 24 November 1986 on the approximation of laws, regulations and administrative provisions of the Member States regarding the protection of animals used for experimental and other scientific purposes(5) has established common rules for the use of animals for experimental purposes within the Community and laid down the conditions under which such experiments must be carried out in the territory of the Member States. In particular, Article 7 of that Directive requires that animal experiments be replaced by alternative methods, when such methods exist and are scientifically satisfactory. In order to facilitate the development and use of alternative methods in the cosmetic sector which do not use live animals, specific provisions have been introduced by Council Directive 93/35/EEC of 14 June 1993 amending for the sixth time Directive 76/768/EEC on the approximation of the laws of the Member States relating to cosmetic products(6).

However, these provisions concern only alternative methods which do not use animals and they do not take account of alternative methods developed in order to reduce the number of animals used for experiments or to reduce their suffering. Therefore, in order to afford optimal protection to animals used for testing cosmetic products pending implementation of the prohibition of animal tests for cosmetic products and the marketing of animal-tested cosmetic products in the Community, these provisions should be amended in order to provide for the systematic use of alternative methods, which reduce the number of animals used or reduce the suffering caused, in those cases where full replacement alternatives are not yet available, as provided by Article 7(2) and (3) of Directive 86/609/EEC, when these methods offer consumers a level of protection equivalent to that of the conventional methods which they are intended to replace.

(4) In accordance with Directive 86/609/EEC and with Directive 93/35/EEC, it is essential that the aim of abolishing animal experiments for testing cosmetic products be pursued and that the prohibition of such experiments becomes effective in the territory of the Member States. In order to ensure that this prohibition is fully implemented, it may be necessary for the Commission to bring forward further proposals to amend Directive 86/609/EEC.

(5) Currently, only alternative methods which are scientifically validated by the European Centre for the Validation of Alternative Methods (ECVAM) or the Organisation for Economic Cooperation and Development (OECD) and applicable to the whole chemical sector are systematically adopted at Community level. However, the safety of cosmetic products and their ingredients may be ensured through the use of alternative methods which are not necessarily applicable to all uses of chemical ingredients. Therefore, the use of such methods by the whole cosmetic industry should be promoted and their adoption at Community level ensured, when such methods offer an equivalent level of protection to consumers.

(6) The safety of finished cosmetic products can already be ensured on the basis of knowledge of the safety of the ingredients that they contain. Provisions prohibiting animal testing of finished cosmetic products can therefore be incorporated into Directive 76/768/EEC. The Commission should establish guidelines in order to facilitate the application, in particular by small and medium-sized enterprises, of methods which do not involve the use of animals for assessing the safety of finished cosmetic products.

(7) It will gradually become possible to ensure the safety of ingredients used in cosmetic products by using non-animal alternative methods validated at Community level, or approved as being scientifically validated, by ECVAM and with due regard to the development of validation within the OECD. After consulting the Scientific Committee on Cosmetic Products and Non-Food Products intended for Consumers (SCCNFP) as regards the applicability of the validated alternative methods to the field of cosmetic products, the Commission should immediately publish the validated or approved methods recognised as being applicable to such ingredients. In order to achieve the highest possible degree of animal protection, a deadline must be set for the introduction of a definitive prohibition.

(8) The Commission should establish timetables of deadlines for the prohibition of the marketing of cosmetic products, the final formulation, ingredients or combinations of ingredients which have been tested on animals, and for the prohibition of each test currently carried out using animals, up to a maximum of six years from the date of entry into force of this Directive. In view, however, of the fact that there are no alternatives yet under consideration for tests concerning repeated-dose toxicity, reproductive toxicity and toxicokinetics, it is appropriate for the maximum deadline for the prohibition of the marketing of cosmetic products for which those tests are used to be 10 years from the date of entry into force of this Directive. On the basis of annual reports, the Commission should be authorised to adapt the timetables within the respective abovementioned maximum time limits.

(9) Better coordination of resources at Community level will contribute to increasing the scientific knowledge indispensable for the development of alternative methods. It is essential, for this purpose, that the Community continue and increase its efforts and take the measures necessary for the promotion of research and the development of new non-animal alternative methods, in particular within its Sixth Framework Programme as set out in Decision No 1513/EC/2002 of the European Parliament and of the Council(7).

(10) The recognition by non-member countries of alternative methods developed in the Community should be encouraged. In order to achieve this objective, the Commission and the Member States should take all appropriate steps to facilitate acceptance of such methods by the OECD. The Commission should also endeavour, within the framework of European Community cooperation agreements, to obtain recognition of the results of safety tests carried out in the Community using alternative methods so as to ensure that the export of cosmetic products for which such methods have been used is not hindered and to prevent or avoid non-member countries requiring the repetition of such tests using animals.

(11) It should be possible to claim on a cosmetic product that no animal testing was carried out in relation to its development. The Commission, in consultation with the Member States, should develop guidelines to ensure that common criteria are applied in the use of claims and that an aligned understanding of the claims is reached, and in particular that such claims do not mislead the consumer. In developing such guidelines, the Commission must also take into account the views of the many small and medium-sized enterprises which make up the majority of the "non-animal testing" producers, relevant non-governmental organisations, and the need of consumers to be able to make practical distinctions between products on the basis of animal testing criteria.

(12) The SCCNFP stated in its opinion of 25 September 2001 that substances classified pursuant to Council Directive 67/548/EEC of 27 June 1967 on the approximation of laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances(8) as carcinogenic (except substances only carcinogenic by inhalation), mutagenic or toxic for reproduction, of category 1 or 2, and substances with similar potential, must not be intentionally added to cosmetic products, and that substances classified pursuant to Directive 67/548/EEC as carcinogenic, mutagenic or toxic for reproduction, of category 3, and substances with similar potential, must not be intentionally added to cosmetic products unless it can be demonstrated that their levels do not pose a threat to the health of the consumer.

(13) Given the special risks that substances classified as carcinogenic, mutagenic or toxic for reproduction, category 1, 2 and 3, pursuant to Directive 67/548/EEC may entail for human health, their use in cosmetic products should be prohibited. A substance classified in category 3 may be used in cosmetics if the substance has been evaluated by the SCCNFP and found acceptable for use in cosmetic products.

(14) In order to improve the information provided to consumers, cosmetic products should bear more precise indications concerning their durability for use.

(15) Certain substances have been identified as an important cause of contact-allergy reactions in fragrance-sensitive consumers. In order to ensure that such consumers are adequately informed, it is therefore necessary to amend the provisions of Directive 76/768/EEC to require that the presence of these substances be mentioned in the list of ingredients. This information will improve the diagnosis of contact allergies among such consumers and will enable them to avoid the use of cosmetic products which they do not tolerate.

(16) A number of substances have been identified by the SCCNFP as likely to cause allergenic reactions and it will be necessary to restrict their use and/or impose certain conditions concerning them.

(17) The measures necessary for the implementation of this Directive should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission(9).

(18) The provisions of Directive 93/35/EEC banning the marketing of cosmetic products containing ingredients or combinations of ingredients tested on animals should be superseded by the provisions of this Directive. In the interests of legal certainty therefore it is appropriate to apply Article 1(1) of this Directive with effect from 1 July 2002, whilst fully respecting the principle of legitimate expectations,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Directive 76/768/EEC is hereby amended as follows:

1. Article 4(1)(i) shall be deleted;

2. the following Articles shall be inserted:

"Article 4a

1. Without prejudice to the general obligations deriving from Article 2, Member States shall prohibit:

(a) the marketing of cosmetic products where the final formulation, in order to meet the requirements of this Directive, has been the subject of animal testing using a method other than an alternative method after such alternative method has been validated and adopted at Community level with due regard to the development of validation within the OECD;

(b) the marketing of cosmetic products containing ingredients or combinations of ingredients which, in order to meet the requirements of this Directive, have been the subject of animal testing using a method other than an alternative method after such alternative method has been validated and adopted at Community level with due regard to the development of validation within the OECD;

(c) the performance on their territory of animal testing of finished cosmetic products in order to meet the requirements of this Directive;

(d) the performance on their territory of animal testing of ingredients or combinations of ingredients in order to meet the requirements of this Directive, no later than the date on which such tests are required to be replaced by one or more validated alternative methods listed in Annex V to Council Directive 67/548/EEC of 27 June 1967 on the approximation of laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances(10)or in Annex IX to this Directive.

No later than 11 September 2004 the Commission shall, in accordance with the procedure referred to in Article 10(2) and after consultation of the Scientific Committee on Cosmetic Products and Non-Food Products intended for consumers (SCCNFP) establish the contents of Annex IX.

2. The Commission, after consultation of the SCCNFP and of the European Centre for the Validation of Alternative Methods (ECVAM) and with due regard to the development of validation within the OECD, shall establish timetables for the implementation of the provisions under paragraph 1(a), (b) and (d), including deadlines for the phasing-out of the various tests. The timetables shall be made available to the public not later than 11 September 2004 and be sent to the European Parliament and the Council. The period for implementation shall be limited to a maximum of six years after the entry into force of Directive 2003/15/EC in relation to paragraph 1(a), (b) and (d).

(2.1) In relation to the tests concerning repeated-dose toxicity, reproductive toxicity and toxicokinetics, for which there are no alternatives yet under consideration, the period for implementation of paragraph 1(a) and (b) shall be limited to a maximum of 10 years after the entry into force of Directive 2003/15/EC.

(2.2) The Commission shall study possible technical difficulties in complying with the ban in relation to tests, in particular those concerning repeated-dose toxicity, reproductive toxicity and toxicokinetics, for which there are no alternatives yet under consideration. Information about the provisional and final results of these studies should form part of the yearly reports presented pursuant to Article 9.

On the basis of these annual reports, the timetables established in accordance with paragraph 2 may be adapted within a maximum time limit of six years as referred to in paragraph 2 or 10 years as referred to in paragraph 2.1 and after consultation of the entities referred to in paragraph 2.

(2.3) The Commission shall study progress and compliance with the deadlines as well as possible technical difficulties in complying with the ban. Information about the provisional and final results of the Commission studies should form part of the yearly reports presented pursuant to Article 9. If these studies conclude, at the latest two years prior to the end of the maximum period referred to in paragraph 2.1, that for technical reasons one or more tests referred to in paragraph 2.1 will not be developed and validated before the expiry of the period referred to in paragraph 2.1 it shall inform the European Parliament and the Council and shall put forward a legislative proposal in accordance with Article 251 of the Treaty.

(2.4) In exceptional circumstances where serious concerns arise as regards the safety of an existing cosmetic ingredient a Member State may request the Commission to grant a derogation from paragraph 1. The request shall contain an evaluation of the situation and indicate the measures necessary. On this basis, the Commission may, after consultation of the SCCNFP and by means of a reasoned decision, authorise the derogation in accordance with the procedure referred to in Article 10(2). This authorisation shall lay down the conditions associated with this derogation in terms of specific objectives, duration and reporting of the results.

A derogation shall only be granted if:

(a) the ingredient is in wide use and cannot be replaced by another ingredient able to perform a similar function;

(b) the specific human health problem is substantiated and the need to conduct animal tests is justified and is supported by a detailed research Protocol proposed as the basis for the evaluation.

The decision on the authorisation, the conditions associated with it and the final result achieved shall be part of the annual report to be presented by the Commission in accordance with Article 9.

3. For the purposes of this Article:

(a) 'finished cosmetic product' means the cosmetic product in its final formulation, as placed on the market and made available to the final consumer, or its prototype.

(b) 'prototype' means a first model or design that has not been produced in batches, and from which the finished cosmetic product is copied or finally developed.

Article 4b

The use in cosmetic products of substances classified as carcinogenic, mutagenic or toxic for reproduction, of category 1, 2 and 3, under Annex I to Directive 67/548/EEC shall be prohibited. To that end the Commission shall adopt the necessary measures in accordance with the procedure referred to in Article 10(2). A substance classified in category 3 may be used in cosmetics if the substance has been evaluated by the SCCNFP and found acceptable for use in cosmetic products."

3. Article 6(1)(c) shall be replaced by the following:

"(c) The date of minimum durability shall be indicated by the words: 'best used before the end of' followed by either:

- the date itself, or

- details of where it appears on the packaging.

The date shall be clearly expressed and shall consist of either the month and year or the day, month and year in that order. If necessary, this information shall be supplemented by an indication of the conditions which must be satisfied to guarantee the stated durability.

Indication of the date of durability shall not be mandatory for cosmetic products with a minimum durability of more than 30 months. For such products, there shall be an indication of the period of time after opening for which the product can be used without any harm to the consumer. This information shall be indicated by the symbol given in Annex VIIIa followed by the period (in months and/or years).";

4. Article 6(1)(g) shall be replaced by the following:

"(g) a list of ingredients in descending order of weight at the time they are added. That list shall be preceded by the word 'ingredients'. Where that is impossible for practical reasons, an enclosed leaflet, label, tape or card must contain the ingredients to which the consumer is referred either by abbreviated information or the symbol given in Annex VIII, which must appear on the packaging.

The following shall not, however, be regarded as ingredients:

- impurities in the raw materials used,

- subsidiary technical materials used in the preparation but not present in the final product,

- materials used in strictly necessary quantities as solvents or as carriers for perfume and aromatic compositions.

Perfume and aromatic compositions and their raw materials shall be referred to by the word 'perfume' or 'aroma'. However, the presence of substances, the mention of which is required under the column 'other limitations and requirements' in Annex III, shall be indicated in the list irrespective of their function in the product.

Ingredients in concentrations of less than 1 % may be listed in any order after those in concentrations of more than 1 %.

Colouring agents may be listed in any order after the other ingredients, in accordance with the colour index number or denomination adopted in Annex IV. For decorative cosmetic products marketed in several colour shades, all colouring agents used in the range may be listed, provided that the words 'may contain' or the symbol '+/-' are added.

An ingredient must be identified by the common name referred to in Article 7(2) or, failing that, by one of the names referred to in Article 5a(2), first indent.

In accordance with the procedure referred to in Article 10(2), the Commission may adapt the criteria and conditions set out in Commission Directive 95/17/EC of 19 June 1995 laying down detailed rules for the application of Council Directive 76/768/EEC as regards the non-inclusion of one or more ingredients on the list used for the labelling of cosmetic products(11) under which a manufacturer may, for reasons of trade secrecy, apply not to include one or more ingredients on the abovementioned list."

5. the last sentence of Article 6(3) shall be deleted and the following subparagraph shall be added:"Furthermore, the manufacturer or the person responsible for placing the product on the Community market may take advantage, on the product packaging or in any document, notice, label, ring or collar accompanying or referring to the product, of the fact that no animal tests have been carried out only if the manufacturer and his suppliers have not carried out or commissioned any animal tests on the finished product, or its prototype, or any of the ingredients contained in it, or used any ingredients that have been tested on animals by others for the purpose of developing new cosmetic products. Guidelines shall be adopted in accordance with the procedure referred to in Article 10(2) and published in the Official Journal of the European Union. The European Parliament shall receive copies of the draft measures submitted to the Committee."

6. Article 7a(1)(d) shall be replaced by the following:

"(d) assessment of the safety for human health of the finished product. To that end the manufacturer shall take into consideration the general toxicological profile of the ingredients, their chemical structure and their level of exposure. It shall take particular account of the specific exposure characteristics of the areas on which the product will be applied or of the population for which it is intended. There shall be inter alia a specific assessment for cosmetic products intended for use on children under the age of three and for cosmetic products intended exclusively for use in external intimate hygiene.

Should the same product be manufactured at several places within Community territory, the manufacturer may choose a single place of manufacture where that information will be available. In this connection, and when so requested for monitoring purposes, it shall be obliged to indicate the place so chosen to the monitoring authority or authorities concerned. In this case this information shall be easily accessible;"

7. the following point shall be added to Article 7a(1):

"(h) data on any animal testing performed by the manufacturer, his agents or suppliers, relating to the development or safety evaluation of the product or its ingredients, including any animal testing performed to meet the legislative or regulatory requirements of non-member countries.

Without prejudice to the protection, in particular, of commercial secrecy and of intellectual property rights, Member States shall ensure that the information required under (a) and (f) shall be made easily accessible to the public by any appropriate means, including electronic means. The quantitative information required under (a) to be made publicly accessible shall be limited to dangerous substances covered by Directive 67/548/EEC."

8. in Article 8(2) and Article 8a(3), the title "Scientific Committee on Cosmetology" shall be replaced by "Scientific Committee for Cosmetic Products and Non-Food Products intended for Consumers";

9. Articles 9 and 10 shall be replaced by the following:

"Article 9

Every year the Commission shall present a report to the European Parliament and the Council on:

(a) progress made in the development, validation and legal acceptance of alternative methods. The report shall contain precise data on the number and type of experiments relating to cosmetic products carried out on animals. The Member States shall be obliged to collect that information in addition to collecting statistics as laid down by Council Directive 86/609/EEC of 24 November 1986 on the approximation of laws, regulations and administrative provisions of the Member States regarding the protection of animals used for experimental and other scientific purposes(12). The Commission shall in particular ensure the development, validation and legal acceptance of alternative test methods which do not use live animals;

(b) progress made by the Commission in its efforts to obtain acceptance by the OECD of alternative methods validated at Community level and recognition by non-member countries of the results of the safety tests carried out in the Community using alternative methods, in particular within the framework of cooperation agreements between the Community and these countries;

(c) the manner in which the specific needs of small and medium-sized enterprises have been taken into account.

Article 10

1. The Commission shall be assisted by the Standing Committee on Cosmetic Products.

2. Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.

The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.

3. The Committee shall adopt its rules of procedure."

10. the following shall be added to Annex III, Part I:

">TABLE>"

11. an Annex VIIIa shall be added, consisting of a symbol representing an open cream jar. The Commission shall, in accordance with the procedure referred to in Article 10(2) establish this symbol by 11 September 2003 at the latest.

Article 2

For the application of Article 1, point 3 as regards Article 6(1)(c), third subparagraph of Directive 76/768/EEC as well as of Article 1, point 4 as regards Article 6(1)(g), third subparagraph of Directive 76/768/EEC:

Member States shall take all necessary measures to ensure that from 11 March 2005 neither manufacturers nor importers established within the Community place on the market cosmetic products which fail to comply with this Directive.

Article 3

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before 11 September 2004. They shall forthwith inform the Commission thereof.

When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.

2. Member States shall communicate to the Commission the text of the provisions of national law which they adopt in the field covered by this Directive.

Article 4

This Directive shall enter into force on the day of its publication in the Official Journal of the European Union.

By way of derogation from Article 3, Article 1, point (1) shall apply from 1 July 2002.

Article 5

This Directive is addressed to the Member States.

Done at Brussels, 27 February 2003.

For the European Parliament

The President

P. Cox

For the Council

The President

M. Chrisochoïdis

(1) OJ C 311 E, 31.10.2000, p. 134 and OJ C 51 E, 26.2.2002, p. 385.

(2) OJ C 367, 20.12.2000, p. 1.

(3) Opinion of the European Parliament of 3 April 2001 (OJ C 21 E, 24.1.2002, p. 24), Council Common Position of 14 February 2002 (OJ C 113 E, 14.5.2002, p. 109) and Decision of the European Parliament of 11 June 2002 (not yet published in the Official Journal). Decision of the European Parliament of 15 January 2003 and Decision of the Council of 27 February 2003.

(4) OJ L 262, 27.7.1976, p. 169. Directive as last amended by Commission Directive 2002/34/EC (OJ L 102, 18.4.2002, p. 19).

(5) OJ L 358, 18.12.1986, p. 1.

(6) OJ L 151, 23.6.1993, p. 32.

(7) OJ L 232, 29.8.2002, p. 1.

(8) OJ 196, 16.8.1967, p. 1. Directive as last amended by Commission Directive 2001/59/EC (OJ L 225, 21.8.2001, p. 1).

(9) OJ L 184, 17.7.1999, p. 23.

(10) OJ 196, 16.8.1967, p. 1. Directive as last amended by Commission Directive 2001/59/EC (OJ L 225, 21.8.2001, p. 1).

(11) OJ L 140, 23.6.1995, p. 26.

(12) OJ L 358, 18.12.1986, p. 1.