Due to some unique aspects of the EU Cosmetics Regulation compared to other EU product safety regulations, the cosmetics industry has been particularly impacted by Brexit. Given that Brexit has now taken place, it is timely to reconsider this ongoing impact on industry and provide some guidance on forward-looking planning.

Background – Brexit

The UK exited the EU on 31 January 2020, under a “deal” scenario governed by the Withdrawal Agreement.

There is now a one year transition period to allow the UK and EU to determine their ongoing regulatory relationship, if any, and for the UK to legislate its own laws. The main point of negotiations are likely to be tariffs, customs (“Free Trade Agreements” generally) and regulatory cooperation.

During this transition period EU laws continue to apply in the UK, and the UK remains part of the single market.

The end of the transition period is currently 31 December 2020. Whilst it is possible for this period to be extended, the UK government has currently indicated this is unlikely.

 Current status of cosmetics laws

Currently, the EU Cosmetics Regulation, and complementary chemical legislation (CLP and REACH) continue to apply in the UK, including any amendments made during the year, until 31 December 2020. The EU laws will, evidently, also continue to apply in the EU.

Legislation and associated preparation made to address a “no deal” scenario for the cosmetics industry is no longer applicable.

 Future status of cosmetics laws in UK

As above, the UK is in the process of drafting its own cosmetics laws to apply from 1 January 2021. The shape of the UK cosmetics laws and the nature of the relationship between UK/EU is likely to be more evident in June this year. Any legislation is likely to be agreed in approximately September this year to allow each country to implement those laws in time for 1 January 2021.

Based on the above, though it is unclear whether that will be the case, cosmetics companies should continue to consider the worst case scenario of compliance with two very disparate systems – the EU and UK.

Specific issues in cosmetics laws

 During this transition period, there are some legal uncertainties under cosmetics laws. Some of those main issues, which many companies have already begun to deal with in anticipation of Brexit, are as follows:

  • Importer/distributor: If there is a UK-based distributor, from 1 January 2021, if no other arrangements are put in place, that entity will automatically become the importer in the UK and therefore the Responsible Person (“RP”) there. Similarly, EU-based distributors could be considered the EU importer and therefore EU RP if no other arrangements are put in place to assign an EU RP. Where there are multiple possible RPs a decision would need to be taken about who acts in RP capacity.
  • Responsible Person: A RP previously based in UK will not satisfy requirements under EU laws. A UK RP must be UK based. These requirements will kick in from 1 January 2021, however, as a legal entity is required for RP set-up and labelling obligations that follow companies should start preparing now.
  • PIF: The PIF needs to be made available in the location of the Member State where the RP address is. Practically, this may mean the PIF can be stored elsewhere until a request by an authority requires its transfer to the location of the RP. The PIF must always be translated into the language of the RP address however. The location of the PIF for EU must be underlined in packaging also.
  • Labelling: The transition period for labelling requirements was more generous under the “no deal” scenario legislation, a 2 year period in total. Currently, from 1 January 2021 companies must be fully compliant with dual EU and UK systems if they intend to continue to sell in both markets. There would be no need to amend underlining practices for PIF, as above, because the UK and EU would each disregard the existence of the RP addresses for those markets, as they would a third party country.
  • Notification/CPNP: There is unlikely to be communication between EU and UK systems (UK had set up a system for “no deal” that is currently on hold) in regards to notification. Data in EU system can be copied and pasted across to UK systems, however. This will need to be done before 1 January 2021.
  • Material Safety Data Sheets (MSDS): Where required (i.e. not for finished cosmetic products), the use of a single sheet for US/EU should suffice currently for EU and UK requirements.
  • Safety Assessor Qualification: Qualifications of safety assessors will still need to be evidenced as required under EU law. The safety assessor will need to be qualified in the relevant Member State. EU countries that do not accept third country qualifications may cause concern for UK-qualified safety assessors going forward.

We will continue to provide updates as they become available, as well as tips and insights gained through our extensive experience in this area in practice.

Posted by Sarah-Jane Dobson

International products lawyer, Cooley LLP