27 May 2022
The Office for Product Safety and Standards (OPSS), the UK government's product safety body, recently announced the government's intention to revise the Cosmetic Products Regulations 2009 (UK Cosmetic Regulations) and the Toys (Safety) Regulations 2011 (UK Toys Regulations), as applicable in England, Wales and Scotland.
These proposed reforms are the first we have seen since the end of the Brexit transition period on 31 December 2020 and will bring the UK regulations into line with recent restrictions and prohibitions that have been introduced in the European Union. This indicates that the UK is seeking to ensure its product safety regime will remain aligned with that of the EU, at least where regulated products are concerned. However, the OPSS is currently undergoing a full-scale review of the UK's product safety regime for consumer products, which could lead to radical reform, and result in divergence from the existing EU-based framework.
The proposed measures will amend the permitted levels of, or prohibit, certain chemicals in both the UK Toys Regulations and the UK Cosmetics Regulations, with the aim of safeguarding consumers against potentially harmful exposure to these chemicals.
The following changes are expected to be made to the applicable regulations:
Substances classified as Carcinogen Mutagen and Reprotoxic (CMR) under the EU's Classification, Labelling and Packaging Regulation (as retained in the UK) will be banned for use in cosmetic products in the UK. These substances will be added to Annex 2 of the UK Cosmetic Regulations, which includes a list of prohibited chemicals.
The need to protect consumers from potentially allergenic substances continues to be a major focus for legislators and the Food Standards Agency, which regulates the safety of food products. However, given the scope for allergens to be used in products such as toys, in this case to add a fragrance to the product, the OPSS is also seeking to ensure it is alive to this key product safety issue.
The use of three allergenic fragrances (methyl heptane carbonate, atranol and choloratranol) will be prohibited for use in toys by the proposed reforms. This mirrors the prohibition of these three chemicals in toys by the European Commission on 11 December 2020. The ban is a natural extension of current prohibitions on atranol and chloroatranol, and restriction of methyl heptane carbonate to 0.01%, in the UK Cosmetics Regulations.
These three fragrances are commonly used to fragrance products such as finger paints and modelling clay.
The use of certain substances in both toys and cosmetics are to be restricted following the concluded assessments of the Scientific Advisory Group on Chemical Safety in Products' (SAG-CS) regarding the risk to human health of a number of chemicals.
The UK Toys Regulations will be amended to reduce the permitted limits of aluminium, aniline and formaldehyde in toys, following such restrictions in the European regulations.
The UK Cosmetics Regulations will be amended to: (i) prohibit the use of the skin lightening agent (deoxyarbutin); and (ii) permit salicylic acid at 0.5% for uses other than as a preservative in body lotion, mascara, eye shadow, eyeliner, lipstick and roll-on deodorant.
The UK government has stated that 'a shorter entry into force period is necessary to avoid potential negative impacts of the use and limits of certain chemicals currently used in some toys and cosmetics'.
It is therefore intended that: (i) products containing CMR substances and fragrance allergens will not be banned from the market on or after 15 October 2022; and (ii) products containing the chemicals assessed by SAG-CS will not be able to be placed on the market on or after 15 December 2022.
However, there will be transitional periods ending on 15 December 2022 for products containing CMR substances and fragrance allergens, and 15 March 2023 for chemicals assessed by SAG-CS. During these periods, such products will be allowed to be made available. It will be unlawful to supply the non-complying products after these dates.
Please contact our product liability and safety team for further information.
by multiple authors