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Focus on Regulation

Are We Due for a Makeover?

Many have questioned what affect a proposed legislative facelift, to the cosmetic industry, will have on manufacturers, retailers and, of course, on consumers.

According to the Department of Trade and Industry, the total size of the South African cosmetic industry, including personal care products, as far back as 2010, was estimated to be an impressive R25.3 billion, and it is said to contribute approximately 1% to the country’s gross domestic product.

Given the size of this industry, and most consumers’ desire to look and feel good, many consumers have been duped into purchasing products that, not only aren’t able to make good on the claims made, i.e. not “clinically proven”, but also aren’t safe for their intended use.

Misleading labelling and advertising of cosmetic products has left many consumers not only out of pocket, but also feeling disillusioned.

For this reason, the South African Department of Health (“DOH“), in collaboration with the Cosmetic Toiletry and Fragrance Association (“CTFA“), sought to revise the framework in terms of which the cosmetic industry is currently regulated in South Africa. This is mainly to curb irresponsible labelling and advertising, and also to equip consumers with the necessary information in order to make informed decisions when purchasing cosmetic products.

According to draft Regulations relating to the Labelling, Advertising and Composition of Cosmetics (“Draft Cosmetics Regulations”), published by the DOH on 19 August 2016, interested parties were invited to submit comments thereon by 19 November 2016.

As regards labelling and advertising, the Draft Cosmetics Regulations provide, inter alia, as follows:

  • no labelling or advertising of a cosmetic may make use of text, names, trademarks, pictures or other signs, which imply that a particular product has any characteristics that it does not have;
  • the use of claims, whether relating to the nature, effects or quality of a product, that cannot be scientifically substantiated, will be prohibited;
  • it is proposed that it be an offence for any person selling a cosmetic to imply that medical practitioners recommend the use thereof or where the impression that a cosmetic has any health-giving properties, unless it has been scientifically substantiated.

What is key to note is the requirement to keep a product information file in respect of each cosmetic marketed. Furthermore, manufacturers of cosmetics will be required to comply with good manufacturing practices.

The Draft Cosmetics Regulations also provide a list of prohibited substances and a list of permissible colouring agents and preservatives, which is safe for use in cosmetics.

Taking into consideration not only the additional administrative requirements imposed on manufacturers, and the like, but also the possible expenses to be incurred in revising packaging and labelling of cosmetic products, one can only speculate what economic impact this may have on the South African cosmetic industry as a whole.

Despite the purported urgency in issuing the Draft Cosmetics Regulations, more than 6 months have passed since the closing date for submission of comments in respect thereof, without any update from the DOH regarding the proposed date of implementation.

Although some may see this as an opportunity to bide their time, the relevant role players in the supply chain may well wish to consider acquainting themselves with the provisions of the Draft Cosmetics Regulations in anticipation of its inevitable implementation, in order to be able to continue marketing any products affected by the proposed legislation, and to avoid contravening the regulations, once implemented.