Friday, 4 September 2015

Misleading presentation of lenses as cosmetic products - CJEU in Colena (C-321/14)

3 September 2015: CJEU judgment in Colena (C-321/14)

Directive 1223/2009 on cosmetic products defines as such products that are either substances or mixtures of substances that are intended to come in contact with a part of the human body with a purpose to exclusive or mainly clean it, perfume it, change its appearance, protect it, keep it in good condition or correct body odors (Art. 2 par. 1). A German company promoted lenses that were to change the appearance of their users' eyes, without having any corrective function as to the visual deficiencies. On the outer packaging of these lenses an information was placed "cosmetic eye accessory, subject to the EU Cosmetics Directive". The CJEU decides, however, that presentation of a product as a cosmetic product does not influence its assessment as such. The above-described lenses do not fulfil any of the above-mentioned criteria from the definition of a cosmetic product (e.g. they are placed on the eye's cornea, which is not referred to on the exhaustive list of body parts with which cosmetic products come in contact with) and as such are excluded from having to comply with the rules of the Directive. However, national authorities may consider a practice of marketing a product as a cosmetic product even if it is not such, as a misleading commercial practice and proceed accordingly. (Par. 26)

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