Borderline Manual - September 2020 v5.2

MANUAL OF THE WORKING GROUP ON COSMETIC PRODUCTS
(SUB-GROUP ON BORDERLINE PRODUCTS) ON THE SCOPE OF

APPLICATION OF THE COSMETICS REGULATION (EC) NO 1223/2009
(ART. 2(1)(A))
VERSION 5.2 (SEPTEMBER 2020)
PLEASE NOTE: THIS MANUAL IS A DOCUMENT PREPARED BY THE SUB-GROUP

ON BORDERLINE PRODUCTS AND THEN APPROVED BY THE WORKING GROUP
ON COSMETIC PRODUCTS. 1
THIS MANUAL IS NOT A EUROPEAN COMMISSION DOCUMENT. IT SHALL ONLY

SERVE AS “TOOL” AND IS A COLLECTION OF PRACTICE FOR THE
CASE-BY-CASE APPLICATION OF UNION LEGISLATION BY THE MEMBER-STATES.
IT IS FOR THE NATIONAL COMPETENT AUTHORITIES AND NATIONAL COURTS TO
ASSESS ON A CASE-BY-CASE BASIS, WHICH REGULATORY FRAMEWORK
APPLIES.
THE VIEWS EXPRESSED IN THIS MANUAL ARE NOT LEGALLY BINDING; ONLY
THE EUROPEAN COURT OF JUSTICE CAN GIVE AN AUTHORITATIVE
INTERPRETATION OF UNION LAW. THIS MANUAL CANNOT BE REGARDED AS
REFLECTING THE OFFICIAL POSITION OF THE EUROPEAN COMMISSION.
Version 5.2 September 2020 contains the following changes:
 Two new entries: ”Cosmetic kits” and Dual function soap;

 Several minor references updated and improved consistency of
entries (clerical changes).
1 The Working Group is chaired by the European Commission and is composed of representatives of
all Member States of EU and EFTA, Cosmetics Europe, the European Federation for Cosmetic
Ingredients (EFfCI), the International Fragrance Association (IFRA), the International Natural and
Organic Cosmetic Association (NATRUE), the European Organisation of Cosmetic Ingredients
Industries and Services (Unitis), and the European Association of Craft, Small and Medium-sized
Enterprises (UEAPME).
TABLE OF CONTENTS
Table of Contents _________________________________________________________ i

Introduction ______________________________________________________________ 1
1. Type of Product – Substance or Mixture ________________________________ 3
1.1. Tongue brushes releasing a substance or a mixture ______________________ 3
1.2. Clothes releasing a substance or a mixture ______________________________ 3
1.3. Tooth picks and tooth floss _____________________________________________ 4
1.4. Patches _______________________________________________________________ 4
1.5. Washable, temporary “tattoos” __________________________________________ 5
1.6. Wipes _________________________________________________________________ 5
1.7. Wig ___________________________________________________________________ 5
1.8. Tattoo removal devices _________________________________________________ 6
1.9. Wet razors releasing substances/mixtures _______________________________ 6
2. Application site _______________________________________________________ 6
2.1. Vagina ________________________________________________________________ 6
2.2. Ingestion (tablets) ______________________________________________________ 7
2.3. Ingestion (chewing gum)________________________________________________ 8
2.4. Nasal sprays ___________________________________________________________ 9
2.5. Tooth whitening products, placed inside the tooth _______________________ 10
3. Intended Cosmetic Purpose __________________________________________ 11
3.1. Borderline with Toys __________________________________________________ 11
3.1.1. Products which, according to their presentation, are destined to be used as
make-up on dolls _________________________________________________________________ 11
3.1.2. Products which, according to their presentation, are destined to be used as
make-up on children _________________________________________________________ 11
3.1.3. Bath Products for Children with a Play Value ______________________________ 12
3.1.4. Face paints, body paints, aerography _____________________________________ 12
3.2. Borderline with Biocides _______________________________________________ 13
3.2.1. Leave-on products presented as “antiseptic” or “antibacterial” _____________ 13
3.3. Borderline with Pharmaceutical / Medicinal Products ____________________ 13
3.3.1. Products which, according to their presentation, are intended to exclusively or
mainly relieve joint pain ___________________________________________________________ 13
3.3.2. Products which, according to their presentation, are intended to address
“itching”_ ___________________________________________________________________ 14
3.3.3. Product containing substances which restore, correct or modify physiological
functions by exerting a pharmacological, immunological or metabolic action __________ 14
3.3.4. Products containing substances stimulating hair growth or reducing hair loss 15
3.3.5. Products that make eyelashes grow ______________________________________ 16
3.3.6. Products for in-grown hairs ______________________________________________ 17
3.3.7. Products that make the lips swell _________________________________________ 17
3.3.8. Products reducing cellulite ___________________________________________ 18
3.3.9. Substances applied with skin-patches ____________________________________ 18
3.3.10. Products delivered through iontophoresis or similar mechanisms ___________ 19
3.3.11. Products delivered through invasive techniques, such as needle roller ______ 19
i
3.3.12. Product to treat dry mouth _______________________________________________ 20
3.3.13. Products for superficial moisturizing of female genital organ in cases of
extreme mucosal dryness _________________________________________________________ 20
3.3.14. Topical breast augmentation products ____________________________________ 21
3.3.15. Products claiming aromatherapy _________________________________________ 21
3.3.16. Products for atopic skin _________________________________________________ 22
3.3.17. Products to reduce dark circle under the eyes, bruises or blue spots ________ 22
3.3.18. Products with claims related to bruises, bumps and similar _________________ 23
3.3.19. Skin-whitening products _________________________________________________ 23
3.3.20. Products to relieve tired swollen and heavy legs ___________________________ 23
3.3.21. Anti-wrinkle products ____________________________________________________ 24
3.3.22. Tattoo removal products _________________________________________________ 25
3.3.23. Products with “healing the skin” claims ___________________________________ 25
3.3.24. “Hot tanning products” __________________________________________________ 25
3.3.25. Products to remove “hard skin” __________________________________________ 26
3.3.26. Products to change the appearance of skin reddened due a weak dilation or
imperfection of capillary veins _____________________________________________________ 26
3.3.27. Tattoo aftercare products ________________________________________________ 27
3.3.28. Products for acne and spots _____________________________________________ 27
3.3.29. Piercing care products ___________________________________________________ 28
3.3.30. Mouthwashes and dental gels ____________________________________________ 29
3.3.31. Nail care products _______________________________________________________ 29
3.3.32. Massage products _______________________________________________________ 30
3.4. Borderline with Medical Devices________________________________________ 31
3.4.1. Products which, according to their presentation, are intended to peel the skin 31
3.4.2. Products against head lice _______________________________________________ 32
3.4.3. Styptic Pencils __________________________________________________________ 32
3.5. Borderline with Other Legislations _____________________________________ 32
3.5.1. Products which, according to their presentation, are defined to be used to
detect plaque on teeth _____________________________________________________________ 32
3.5.2. Products which, according to their presentation, are destined to remove glue
used to fix articles on the skin cosmetic products? __________________________________ 33
3.5.3. Products which, according to their presentation, are intended to stimulate
sexual activity ____________________________________________________________________ 33
3.5.4. Essential oils ___________________________________________________________ 33
3.5.5. Products intended to simulate wounds, scars, warts, etc. ___________________ 34
3.5.6. "Cosmetic kits" _________________________________________________________ 35
3.5.7. Dual function soap (personal and laundry care) ____________________________ 36
ii
INTRODUCTION
1. The clear determination of the scope of application of Regulation (EC) No

1223/2009 of the European Parliament and of the Council of 30 November 2009
on cosmetic products ("Cosmetics Regulation")2 is crucial for the proper
implementation of the Cosmetics Regulation and its correct interpretation and
enforcement by national competent authorities of the Member States.
2. With regard to Directive 2001/83/EC of the European Parliament and of the

Council of 6 November 2001 on the Community code relating to medicinal
products for human use3 (“Medicinal products Directive”), the Commission has
published a “Guidance document on the demarcation between the cosmetic
products Directive 76/768 and the medicinal products Directive 2001/83 as
agreed between the Commission Services and the competent authorities of
Member States” (“Cosmetics/medicinal products guidance document”)4 setting out
the legal rules for the demarcation between the Cosmetics Directive (now
replaced by the Cosmetics Regulation) and the Medicinal products Directive.
3. In the course of the discussion with Member States the Commission concluded
that guidance is needed which goes beyond abstract rules and addresses their
actual application. To this end, a “Borderline Sub-Group”, comprised of experts
from within the “Working Group on Cosmetic Products” and from other
Commission Services concerned, meets on a regular basis to discuss the
application of Article 2(1)(a) of the Cosmetics Regulation in order to ensure a
uniform approach.
4. This manual represents the views agreed in this group on products, or categories
of products, which have raised doubts in the past.
5. However, please note that the views expressed in this manual are not legally
binding, since only the Court of Justice (“Court”, “ECJ”) can give an authoritative
interpretation of Union law.
6. This manual does not relieve national competent authorities from their obligation
to determine for any individual product, on a case-by-case basis, whether it falls
within the scope of application of the Cosmetics Regulation or within the scope of
application of other sectorial legislation. The Court has repeatedly held that the
national authorities, acting under the supervision of the courts, must proceed on a
case-by-case basis, taking account of all the characteristics of a product.5
7. Therefore, this manual shall not “prescribe” what regulatory framework applies.
Rather, it shall serve as one out of many elements supporting the national
competent authorities in their case-by-case decision on individual products.
2 OJ L 342, 22.12.2009, p. 59.

3 OJ L 311, 28.11.2001, p. 67.
4 http://ec.europa.eu/DocsRoom/documents/13032/attachments/1/translations.
5 Cf. for example ECJ judgment of 9 June 2005, HLH Warenvertriebs GmbH, C-211/03,
ECLI:EU:C:2005:370, para. 51; judgment of 20 May 1992, Eye lotions, C-290/90,
ECLI:EU:C:1992:227, para. 17.
1
8. In particular, this manual does not deprive a national authority of the possibility to
consult with colleagues from other regulated sectors concerned in order to reach
a complete view on all aspects related to a given product.
9. The structure of this manual shall follow the definition of “cosmetic product” as set
out in Article 2(1)(a) of the Cosmetics Regulation.
2
1. TYPE OF PRODUCT – SUBSTANCE OR MIXTURE
1.1. Tongue brushes releasing a substance or a mixture
10. Question: Is a tongue brush which releases a substance or a mixture a

cosmetic product?
11. Answer: A tongue brush is neither a substance nor a mixture, but an article.
However, the brush may be the “vehicle” to deliver a substance or mixture to the
tongue and the other mucous membranes of the mouth (for example a gel). In
certain cases, a substance or a mixture and a brush can be sold together.
12. This substance or mixture, if it is intended to be placed in contact with the teeth
and the mucous membranes of the oral cavity with a view exclusively or mainly to
cleaning them, perfuming them, changing their appearance protecting them,
keeping them in good condition or correcting body odours, may fall within the
scope of application of the Cosmetics Regulation.
13. If the article is built in such a way that it releases an anti-microbial substance,
such as silver, for example, or activates an anti-microbial process, it may fall
under the remit of Regulation (EU) No 528/20126 (“Biocidal Products Regulation”).
14. In any case, a decision on the qualification of the products has to be made by the
national competent authorities, on a case-by-case basis, and taking into account
all characteristics of the product, such as the presentation of the products, the
ingredients, the mode of action and the claims.
1.2. Clothes releasing a substance or a mixture
15. Question: Is an item of clothing, which releases a substance or a mixture to

the skin a cosmetic product?
16. Answer: The textile is neither a substance nor a mixture7. However, the textile
may be the “vehicle” to deliver a substance or mixture to the human skin. This
substance or mixture, if it is intended to be placed in contact with the various
external parts of the human body, with a view exclusively or mainly to cleaning
them, perfuming them, changing their appearance, protecting them, keeping them
in good condition or correcting body odours, falls within the scope of application of
the Cosmetics Regulation.8
17. Substances/mixtures contained in the textile which are not intended to be placed
in contact with the external parts of the human body (e.g. skin) in order to achieve
6 OJ L 167, 27.6.2012, p. 1.
7 Cf. above, 1.1.
8 In any case, the rules for determining the “borderline” to medicinal products apply
(cf. “Cosmetics/medicinal products guidance document”).
3
any of the above-listed purposes of use on those body parts are not cosmetic
products.
18. The fact that the textile also falls within the scope of application of Directive
2008/121/EC on textile names9 does not deprive the qualification of released
substances/mixtures for cosmetic purposes as cosmetic products. Thus, the
Cosmetics Regulation may apply alongside this Directive.
19. The fact that Regulation 1907/2006 concerning the Registration, Evaluation,
Authorization and Restriction of Chemicals (REACH) provides restrictions on the
marketing and use of certain hazardous substances and mixtures10 in textiles
does not deprive the qualification of released substances for cosmetic purposes
as cosmetic products. Thus, the Cosmetics Regulation may apply alongside this
Regulation.
1.3. Tooth picks and tooth floss
20. Question: Are tooth picks and tooth floss cosmetic products?
21. Answer: Tooth picks and tooth floss themselves are neither a substance nor a
mixture11, and a priori do not fall within the definition of cosmetic products.
22. However, they may be intended to act as a “vehicle” to deliver a substance or a

mixture to the teeth or the gum. This substance or mixture, if it is intended to be
placed in contact with the teeth and the mucous membranes of the oral cavity,
with a view exclusively or mainly to cleaning them, perfuming them, changing their
appearance, protecting them, keeping them in good condition or correcting body
odours, may fall within the scope of application of the Cosmetics Regulation.
23. This should be determined on a case-by-case basis, taking into account the
characteristics of the substance/mixture delivered, including the quantity released
and the claims, because other legislation may apply such as the Medical Devices
legislation and the Medicinal Products legislation.
1.4. Patches
24. Question: Is a patch a cosmetic product?
25. Answer: The patch as such is an article and therefore not a cosmetic product.
However, the substance or mixture released by the patch may be a cosmetic
product if it falls under cosmetics definition. Alternatively, this substance or
mixture may be a medicinal product “by presentation” or “by function” (see below,
chapter 3.3.).
9 OJ L 19, 23.1.2009, p. 29.

10 OJ L 396/1, 30.12.2006.
11 Cf. above, 1.1.
4
1.5. Washable, temporary “tattoos”
26. Question: Is a washable, temporary “tattoo” (i.e. a little picture which is

moistened and subsequently projected on the skin through pressure) a
cosmetic product?
27. Answer: The moistened picture may be considered as a mixture. It is intended to

be placed in contact with the skin in order to change its appearance.
28. Therefore, such a product is likely to be considered as a cosmetic product,

provided that the moistened picture is a mixture and not an article12.
29. The fact that this product may fall also within the scope of application of Directive
2009/48/EC on the safety of toys13 does not deprive it from its qualification as a
cosmetic product.
1.6. Wipes
30. Question: Is a wipe which releases a substance or a mixture a cosmetic

product?
31. Answer: A wipe itself is neither a substance nor a mixture.14 However, a wipe
may be the “vehicle” to deliver a substance or mixture to the human skin. This
substance or mixture, if it is intended to be placed in contact with the various
external parts of the human body, with a view exclusively or mainly to cleaning
them, perfuming them, changing their appearance, protecting them, keeping them
in good condition or correcting body odours falls within the scope of application of
the Cosmetics Regulation.
1.7. Wig
32. Question: Is a wig a cosmetic product?
33. Answer: No. According to Article 2(1)(a) of the Cosmetics Regulation, a cosmetic
product is either a substance or a mixture. A wig can be considered as an article
according to REACH15 and CLP16 Regulations and therefore does not fall within
the scope of application of the Cosmetics Regulation.
12 Cf. above, 1.1.

13 OJ L 170, 30.6.2009, p. 1.
14 Cf. above, 1.1.
15 Regulation (EC) No 1907/2006 of the European Parliament and of the Council on the Registration,
Evaluation, Authorisation and Restriction of Chemicals.

16 Regulation (EC) No 1272/2008 of the European Parliament and of the Council of 16 December
2008 on classification, labelling and packaging of substances and mixtures.
5
1.8. Tattoo removal devices
34. Question: Is a laser device used to remove tattoos a cosmetic product?
35. Answer: No, laser devices intended to remove tattoos do not fulfil the definition of
cosmetic product, because a laser device is neither a substance nor a mixture.
1.9. Wet razors releasing substances/mixtures
36. Question: Is a wet razor which releases a substances or a mixture a

cosmetic product?
37. Answer: A wet razor itself is neither a substance nor a mixture and therefore
does not fall under the definition of a cosmetic product. However, a wet razor may
be the "vehicle" to deliver a substance or mixture to the human skin. If this
substance or mixture is intended to be placed in contact with the various external
parts of the human body, with a view exclusively or mainly to cleaning them,
perfuming them, changing their appearance, protecting them, keeping them in
good condition or correcting body odours, it falls within the scope of application of
38. A lubricating strip which is only aimed to help the blade glide across the skin
during shaving may not fall within the scope of application of the Cosmetics
Regulation. This should be determined on a case-by-case basis.
39. A formulation (e.g. soap / moisturizing / perfuming) attached to a razor and

released to the skin with a main cosmetic function during shaving falls within the
scope of application of the Cosmetics Regulation. The presentation of the product
will provide a useful indication over the intended main function of the
substance/mixture released.
2. APPLICATION SITE
2.1. Vagina
40. Question: Is a product which is, according to its presentation, intended to

be used for cleaning the vagina a cosmetic product?
41. Answer: No. Cosmetic products are defined as intended to be placed in contact
with the various external parts of the human body (epidermis, hair system, nails,
lips and external genital organs) or with teeth and the mucous organs of the oral
cavity.17 This excludes the vagina.
17 Art. (2)(1)(a) of the Cosmetics Regulation; Cf. also the “Cosmetics/medicinal products guidance
document”, para. 13.
6
2.2. Ingestion (tablets)
42. Question: Is a product to mask bad breath which presents itself as tablet to
be dissolved in the saliva and which is ultimately swallowed a cosmetic
product?
43. Answer: Apart from a possible “borderline” with medicinal products 18, this raises
the question of the “borderline” between a “cosmetic product” and “food”. For the
purpose of this manual, only the latter shall be considered.
44. The Cosmetic Regulation defines “cosmetic product” as “any substance or

mixture intended to be placed in contact with the various external parts of the
human body (epidermis, hair system, nails, lips and external genital organs) or
with the teeth and the mucous membranes of the oral cavity with a view
exclusively or mainly to cleaning them, perfuming them, changing their
appearance and/or correcting body odours and/or protecting them or keeping
them in good condition.” This definition is thus based on two cumulative aspects:
the target site of application “placing on body/teeth/mucous membranes” and the
“intended main (cosmetic) function” (i.e. cleaning, perfuming, changing
appearance, correcting body odours, protecting, keeping in good condition).
45. Article 2(2) of the Cosmetics Regulation clarifies that “for the purposes of point (a)
of paragraph 1, a substance or mixture intended to be ingested, inhaled, injected
or implanted into the human body shall not be considered to be a cosmetic
product.”.
46. “Food” is defined in Regulation (EC) No 178/2002 of the European Parliament

and of the Council of 28 January 2002 laying down the general principles and
requirements of food law, establishing the European Food Safety Authority and
laying down procedures in matters of food safety (“Food Regulation 178/02”)19 as
“any substance or product, whether processed, partially processed or
unprocessed, intended to be, or reasonably expected to be ingested by
humans.”20 According to the Food Regulation 178/02, ‘food’ includes drink,
chewing gum and any substance, including water, intentionally incorporated into
the food during its manufacture, preparation or treatment. According to Article 2 of
the Food Regulation 178/02, “food” “shall not include cosmetics within the
meaning of Council Directive 76/768/EEC” (now replaced by the Cosmetics
Regulation).
47. The definition of “food” does not refer to any specific purpose of the product.
Therefore, the “intended cosmetic purpose” of the product is not decisive. Rather,
the decisive criterion is the target site: While the intended target site for food is the
ingestion, a product which is intended to be ingested or which contains
substances intended to be ingested is under no circumstances a cosmetic
product. It follows from this that the regulatory frameworks for food and cosmetics
are in any case mutually exclusive and that it is crucial to determine whether a
product in question or a substance contained therein is intended to be ingested.
18 Cf. Art. 1(2) Medicinal products Directive.
19 OJ L 31, 1.02.2002, p. 1.
20 Art. 2 of the Food Regulation 178/02.
7
48. This assessment has to be done on a case-by-case basis taking into
consideration objective criteria, such as the presentation of the product and the
usual mode of application. In this context, one may consider inter alia
– whether the mixture/substance is meant to be entirely swallowed (normally

food) or whether only parts of it are swallowed “accidentally” (normally
cosmetic product; for example tooth paste21);
– whether the mixture/substance once brought in touch with the mucous

membranes or the teeth, is intended to be spit out again (normally cosmetic
product; for example mouth wash preparations) or whether it is intended to be
ultimately swallowed and thus ingested (normally food);
– whether the mixture/substance is absorbed by the oral mucosa (normally

cosmetic product).
49. In applying these criteria to the present case, the presentation of a product in the
form of a tablet which is intended to be dissolved in saliva and ultimately entirely
swallowed should be seen as an important indicator that this product is intended
to be ingested. Therefore, such a product is usually considered as food.
2.3. Ingestion (chewing gum)
50. Question: Is a product used in order to keep teeth clean or to reduce bad
breath which presents itself as a chewing gum a cosmetic product?
51. Answer: A chewing gum consists of a gum base (acting as a "vehicle") which
releases substances and/or mixtures in the mouth while it is chewed. Apart from a
possible “borderline” with medicinal products22, this raises the question whether
these substances/mixtures are a “cosmetic product” or “food”.
52. The regulatory frameworks of food and cosmetics do not apply cumulatively. 23
53. As shown above24, the determination whether a substance/mixture is “food” or a

cosmetic product requires an assessment whether – from the point of view of the
averagely well-informed consumer – this product is “intended to be ingested”. The
fact that the Food Regulation 178/02 explicitly includes chewing gum in the
definition of food25 does not relieve from this assessment.
21 The fact that little quantities of these products are “accidentally” swallowed does not mean that they
are “reasonably expected to be ingested” (Art. 2 of the Food Regulation 178/02). Rather, the
inclusion of products which are “reasonably expected to be ingested” in the definition of food in the
Food Regulation 178/2002 aims at situations where products are, albeit not (yet) labelled as such,
expected to be sold as food.
22 Cf. Art. 1, 2 of the Medicinal products Directive.
23 Art. 2(3)(e) of the Food Regulation 178/02.
24 Cf. para. 28.
25 Art. 2(2) of the Food Regulation 178/02.
8
54. This assessment has to take into consideration objective criteria, such as the
presentation of the product and the usual mode of application. In this context, one
may consider inter alia
– whether the mixture/substance is meant to be entirely swallowed (normally

food) or whether only parts of it are swallowed “accidentally” (normally
cosmetic product; for example tooth paste26);
– whether the mixture/substance once brought in touch with the mucous

membranes or the teeth, is intended to be spit out again (normally cosmetic
product; for example mouth wash preparations) or whether it is intended to be
ultimately swallowed and thus ingested (normally food);
– whether the mixture/substance is absorbed by the oral mucuosa (normally

cosmetic product).
55. More specifically, in case of a product presented as chewing gum, one may need
to assess whether an averagely well-informed consumer perceives the
mixture/substance released by the chewing gum as “intended to be ingested”
because:
– The mixture/substance released by the chewing gum is usually entirely

swallowed and not only in parts accidentally swallowed.
The mixture/substance released by the chewing gum is – unlike the chewed gum
itself ("vehicle") – usually not spitted out.
2.4. Nasal sprays
56. Question: Are nasal sprays cosmetics products?
57. Answer: No, nasal sprays are not cosmetic products due to their place of
application.
58. The definition of cosmetic products covers "any substance or mixture intended to
be placed in contact with the external parts of the human body (epidermis, hair
system, nails, lips and external genital organs) or with the teeth and the mucous
membranes of the oral cavity27". The mucous membranes of the nasal cavity are
not covered.
26 The fact that little quantities of these products are “accidentally” swallowed does not mean that they
are “reasonably expected to be ingested” (Art. 2 of the Food Regulation 178/02). Rather, the
inclusion of products which are “reasonably expected to be ingested” in the definition of food in
Food Regulation 178/2002 aims at situations where products are, albeit not (yet) labelled as such,
expected to be sold as food.
27 Art. 2(1)(a) of the Cosmetics Regulation.
9
2.5. Tooth whitening products, placed inside the tooth
59. Question: Is a tooth-whitening product, placed inside the tooth, a cosmetic

product?
60. Answer: No. According the Cosmetics Regulation, cosmetic products include
substances or mixtures intended to be placed in contact with the teeth, for
instance with a view to exclusively or mainly changing their appearance 28, but
exclude substances or mixtures which are injected or implanted into the human
body29.
61. Thus, tooth-whitening products may qualify as cosmetic products, if they are
intended to be placed in contact with the teeth. However, tooth whitening products
for which the application involves breaking the tooth so that the product is placed
inside the tooth and not on the outer surface of the tooth, should not fall within the
scope of the Cosmetics Regulation.

29 Art. 2(2) of the Cosmetics Regulation.
10
3. INTENDED COSMETIC PURPOSE
3.1. Borderline with Toys
3.1.1. Products which, according to their presentation, are destined

to be used as make-up on dolls
62. Question: Are products which, according to their presentation, are destined
to be used by children as make-up on children dolls, cosmetic products?
63. Answer: The question whether a substance or mixture is intended to be used

with a cosmetic purpose has to be assessed on a case-by-case basis from the
point of view of the reasonably well informed consumer. In application of this
principle, it is likely that substances and products which are, according to their
presentation, clearly only intended for their use on a doll would not fall within the
scope of application of the Cosmetics Regulation.
64. However, these products might fall within the scope of application of the Directive
2009/48/EC of the European Parliament and of the Council of 18 June 2009 on
the safety of toys (Toy Safety Directive), which defines toys as “products designed
or intended, whether or not exclusively, for use in play by children under 14 years
of age”.
65. According to Article 10(2) of the Toy Safety Directive, “Toys, including the
chemicals they contain, shall not jeopardise the safety or health of users or third
parties when they are used as intended or in a foreseeable way, bearing in mind
the behaviour of children.” In addition, Annex II (10) of the Toy Safety Directive
explicitly foresees that “cosmetic toys, such as play cosmetics for dolls, shall
comply with the compositional and labelling requirements laid down in Council
Directive 76/768/EEC of 27 July 1976 on the approximation of the laws of the
Member States relating to cosmetic products" (now replaced by the Cosmetics
Regulation).

to be used as make-up on children
to be used by children as make-up on children, cosmetic products?
67. Answer: The age of the person on which the substance or mixture is applied for
cosmetic purposes is not a constituent part of the definition of “cosmetic product”.
Therefore, these products are cosmetic products and fall within the scope of the
Cosmetics Regulation.
68. The fact that this product may fall also within the scope of application of the Toy
Safety Directive does not deprive it from its qualification as a cosmetic product.
11
3.1.3. Bath Products for Children with a Play Value
69. Question: Are bath products for children which, according to their
presentation, are destined e.g. to make crackling noises or colour the water
of their bath, cosmetic products?
70. Answer: Bath products with a “play value” for children30 may fall within the
definition of cosmetic products if they are “intended to be placed in contact with
the various external parts of the human body […] with a view exclusively or mainly
to cleaning them, perfuming them, changing their appearance and/or correcting
body odours and/or protecting them or keeping them in good condition.”
71. If the intended purpose of the product is the playing of children (i.e. making a
noise and colouring the water) and if there is no cosmetic purpose, it may fall
under the definition of toys, which are “products designed or intended, whether or
not exclusively, for use in play by children under 14 years of age” according to the
Toy Safety Directive. The Toy Safety Directive already foresees provisions to
ensure safety, such as CE marking and safety assessment.
72. However, the product can be a cosmetic (for example, in cases where the skin is
perfumed) and a toy, because of its “play value”. If the cosmetic is also a toy, the
classification as a toy does not deprive it from its qualification as a cosmetic
product, which has to fully comply with the Cosmetics Regulation (i. e.
requirements concerning ingredients, labelling, notification, etc.).
73. The classification is a case-by-case decision that the national authorities, acting
under the supervision of the courts, must make, taking into account all the
characteristics of the product.
3.1.4. Face paints, body paints, aerography
74. 1. Question: Are face paints and body paints cosmetic products?
75. Answer: Face paints and body paints, including those used via aerography
techniques, are “substances or mixtures intended to be placed in contact with the
external parts of the human body (epidermis, hair system, nails, lips and external
genital organs) […] with a view exclusively or mainly to […] changing their
appearance […]”31. They are therefore to be classified as cosmetic products and
thus fall under the scope of the Cosmetics Regulation.
30 Toy Safety Directive 2009/48/EC - An explanatory guidance document, Rev 1.9, Date: 10/02/2016,
p. 103.
31 Article 2(1)(a) of the Cosmetics Regulation.
12
3.2. Borderline with Biocides
3.2.1. Leave-on products presented as “antiseptic” or “antibacterial”
76. Question: Is a leave-on product which, according to its presentation, is

“antiseptic” or “antibacterial” a cosmetic product?
77. Answer: A product which presents itself as “antiseptic” or “antibacterial” may be a

biocidal product, a cosmetic product, a medicinal product or a medical device.
78. With regard to the “borderline” cosmetic products/biocidal products it should be

assessed the applicability Biocidal Products Regulation (useful information can be
retrieved in the ECHA website).32
79. With regard to the “borderline” between cosmetic products and medicinal products
“by virtue of presentation”, the decision whether the product is presented as
treating or preventing diseases is to be taken on a case-by-case basis. A product
which presents itself as antiseptic and antibacterial products for the treatment or
prevention of infection and lesions of the skin is likely to be considered as
medicinal product by virtue of presentation.33, 34
3.3. Borderline with Pharmaceutical / Medicinal Products
3.3.1. Products which, according to their presentation, are intended to

exclusively or mainly relieve joint pain
80. Question: Is a product which, according to its presentation, is intended to

exclusively or mainly relieve joint pain, a cosmetic product?
81. Answer: No. The principal purpose of a cosmetic product is defined by the
Cosmetics Regulation as “cleaning”, “perfuming”, “changing the appearance”,
“correcting body odours”, “protecting”, or “keeping in good condition”. This
principal purpose refers to external parts of the body, oral mucous membrane or
teeth.35 Joints are not external parts of the body.36
32 https://echa.europa.eu/guidance-documents/guidance-on-biocides-legislation.
33 Cf. the “Cosmetics/medicinal products guidance document”, para. 28 (with reference to case law of
the ECJ).
34 Moreover, note that these products may fall within the legislation for medical devices. For the
“borderline” between medicinal products and medical devices, see also the Guidelines relating to
medical devices Directives
(http://ec.europa.eu/DocsRoom/documents/26785/attachments/1/translations).
35 Cf. the “Cosmetics/medicinal products guidance document”, paras. 15, 16.
36 Moreover, the principal purpose to “relieve from pain” is not a cosmetic purpose according to Art.
2(1)(a) of the Cosmetics Regulation (cf. also the “Cosmetics/medicinal products guidance
document”, para. 14).
13
3.3.2. Products which, according to their presentation, are intended to
address “itching”

address itching on the skin a cosmetic product?
83. Answer: With regard to presentation, the Court has ruled that “a product
expressly indicated or recommended as having therapeutic or prophylactic
properties has to be regarded as a medicinal product ‘by virtue of its presentation’
even if it has no known therapeutic effect”37, and that an “averagely well-informed
consumer” is to be considered as the addressee of the presentation.38
84. A Community definition of “disease” does not exist yet.39 The Court has ruled that
a product presented as counteracting certain conditions or sensations, such as
itching is not, per se, a medicinal product. Rather, all its characteristics need to be
considered: Since these sensations may have no pathological significance, “a
reference to such states or sensations in the presentation of a product is not
decisive.”40
85. Thus, while itching may not necessarily be a disease in itself, itching may also be
presented as a symptom of a disease. If, in the framework of a case-by-case
assessment, a product appears to be presented as addressing an underlying
disease, that product may be a medicinal product. The “Cosmetics/medicinal
products guidance document” gives guidance as to the criteria, which may be
looked at when considering how a product is being presented.
3.3.3. Product containing substances which restore, correct or modify

physiological functions by exerting a pharmacological,
immunological or metabolic action
86. Question: Is a product containing substances, which restore, correct or

modify physiological functions by exerting a pharmacological,
immunological or metabolic action a cosmetic product?
87. Answer: If a product is a medicinal product, it falls exclusively within the

regulatory framework of medicinal products41. A product can be a medicinal
product ‘by virtue of its presentation’ or ‘by virtue of function’. The latter is the
case, if the product is a substance or a combination of substances which are used
in or administered to human beings inter alia with a view to restoring, correcting or
modifying physiological functions by exerting a pharmacological, immunological or
37 ECJ judgment of 28 October 1992, Wilhelmus Ter Voort, C-219/91, ECLI:EU:C:1992:414, para. 18.
With regard to the former, the case provides slightly different-worded definition to “any substance
or combination of substances presented for treating or preventing disease in human beings or
animals”.
38 ECJ judgment of 30 November 1983, Van Bennekom, C-227/82, ECLI:EU:C:1983:354, para 18.
39 ECJ judgment of 21 March 1991, Delattre, C-369/88, ECLI:EU:C:1991:137, para. 12.
40 ECJ judgment, Delattre, paras. 33-35.
41 Art. 2(2) of the Medicinal products Directive, Cf. “Cosmetics/medicinal products guidance
document”, paras. 12, 40-47.
14
metabolic action.42 However, not any minor modification of physiological function
suffices to render a product a medicinal product by virtue of function.43
88. The question whether a product or its substance(s) restores, corrects or modifies
physiological functions by exerting a pharmacological, immunological or metabolic
action has to be taken on a case-by-case basis.
89. The fact that the same substance is also contained in medicinal products as
active ingredient is not decisive. However, this may be an indicator for a
pharmacological, immunological or metabolic action of the substance
independently of the question whether the product is ingested or used topically.
90. In assessing this, one has to consider all characteristics of the product, including,
for example, absorption, concentration, route of administration, frequency of
application, application site, and the degree of penetration.44
3.3.4. Products containing substances stimulating hair growth or reducing

hair loss
91. Question: Are products containing substances stimulating hair growth or

reducing hair loss cosmetic products?
92. Answer: The question whether a product or its substance(s) restores, corrects or
modifies physiological functions by exerting a pharmacological, immunological or
metabolic action has to be taken on a case-by-case basis.
93. The fact that the same substance is not only contained in a cosmetic, but also in
medicinal products as an active ingredient is not decisive. However, this may be
an indicator for a pharmacological, immunological or metabolic action of the
product.
95. In particular, the claims may give a useful indication to the competent authorities,
without, however, replacing a careful assessment of the mode of action and all
the elements indicated above. The claim “promoting hair growth” usually relates to
pharmaceutical products, such as, for instance, those containing minoxidil, a
substance that is prohibited as a cosmetic ingredient46; while the claim “reducing
hair loss” usually relates to cosmetic products. A product “preventing hair fall”, on
the other hand, may be a cosmetic product.
42 Art. 1(2) of the Medicinal products Directive.

43 Cf. ECJ judgment of 16 April 1991, Upjohn, C-112/89, ECLI:EU:C:1991:147, paras. 21, 22.
Cf. “Cosmetics/medicinal products guidance document”, paras. 31-34.
44 Cf. “Cosmetics/medicinal products guidance document”, paras. 37,38.
45 Cf. “Cosmetics/medicinal products guidance document” paras. 37,38.
46 See entry II/372 of Annex II to Directive 76/768/EC.
15
3.3.5. Products that make eyelashes grow
96. Question: Are products that influence the growth of eyelashes cosmetic
products?
97. Answer: The question of whether such products significantly restore, correct or
modify physiological functions by exerting a pharmacological, immunological or
metabolic action has to be assessed on a case-by-case basis.
98. In assessing the proper classification of these eyelash products, one has to
consider all characteristics of the product, including, for example, the presentation
of the product, any promotional literature, the composition, the product's specific
pharmacological, immunological or metabolic properties47, the mode of
application under normal and reasonably foreseeable conditions of use, the
frequency of application, the application site, the degree of penetration, and the
risk which its use may entail48.
99. The fact that a substance is used in medicinal products49 as an active ingredient
is not decisive. However, this may be an indicator for a pharmacological,
immunological or metabolic action of the product.
100. On the other hand, other substances with an influence on eyelash growth may
exist (or be designed), which are not used as active drug ingredients, but the
product containing them could still restore, correct or modify physiological
functions by exerting a pharmacological, immunological or metabolic action (e.g.
some specially designed peptides).
101. The presentation of the product may give useful indications to the competent
authorities, without, however, replacing a careful assessment of the mode of
action and all the elements indicated above. For example, the claim to the effect
of "eyelash growth" would indicate an intention to modify a physiological function.
The absence of such claims, however, does not necessarily mean that the
product does not influence eyelash growth.
47 "It follows that products containing a substance which has a physiological effect cannot
automatically be classified as medicinal products by function unless the competent administration
has made an assessment, with due diligence, of each product individually, taking account, in
particular, of that product’s specific pharmacological, immunological or metabolic properties, to the
extent to which they can be established in the present state of scientific knowledge" (ECJ
judgment of 15 January 2009, Hecht-Pharma, C‑140/07, ECLI:EU:C:2009:5, para. 40).
48 "In its case-law prior to the amendment of Directive 2001/83 by Directive 2004/27, the Court
indicated that, for the purpose of determining whether a product falls within the definition of a
medicinal product by function, the national authorities, acting under the supervision of the courts,
must decide on a case-by-case basis, taking account of all the characteristics of the product, in
particular its composition, its pharmacological properties to the extent to which they can be
established in the present state of scientific knowledge, the manner in which it is used, the extent
of its distribution, its familiarity to consumers and the risks which its use may entail" (ECJ
judgment Hecht-Pharma, para. 32).
49 E.g. prostaglandines and their analogues.
16
3.3.6. Products for in-grown hairs
102. Question: Are products for in-grown hairs cosmetic products?
103. Answer: An in-grown hairs problem can be unsightly, painful, and very
bothersome for men and women, but, though it may be associated to irritation
and inflammation, it is not a disease.
104. A product that helps liberate in-grown hairs from under the skin through a
mechanical or keratolitic action may be a cosmetic.
105. However, the question whether a product or its substance(s) restores, corrects or
modifies physiological functions by exerting a pharmacological, immunological or
metabolic action has to be taken on a case-by-case basis.
106. The fact that the same substance is not only contained in a cosmetic, but also in
medicinal products as an active ingredient is not decisive. However, this may be
an indicator for a pharmacological, immunological or metabolic action of the
product.
108. In particular, the claims may give a useful indication to the competent authorities,
without, however, replacing a careful assessment of the mode of action and all
the elements indicated above. A claim referring to "soothing irritations", for
example, may be associated to a cosmetic product, while claims referring to
"inflammation" and "infection" are more likely to refer to medicinal products.
3.3.7. Products that make the lips swell
109. Question: Are products that plump up the lips cosmetic products?
110. Answer: Products that make lips more voluminous may in principle fulfil the
definition of cosmetic products because they are intended to be placed in contact
with the lips “with a view to exclusively or mainly changing their appearance”.
111. However, these products may also meet the definition of medicinal products “by
virtue of function”, whereby the product is used or administered with a view to
“restoring, correcting or modifying physiological functions by exerting a
pharmacological, immunological or metabolic action, or to making a medical
diagnosis”. The ECJ is of the opinion that: “As regards the meaning of ‘restoring,
correcting or modifying physiological functions’, it is clear from the aim of health
protection pursued by the Community legislature that the phrase must be given a
sufficiently broad interpretation to cover all substances capable of having an effect
on the actual functioning of the body. However, this criterion does not serve to
include substances such as certain cosmetics which, while having an effect on the
17
human body, do not significantly affect the metabolism and thus do not strictly
modify the way in which it functions.”51
112. Therefore, if these products act through inflammation and/or irritation (e.g.
products containing capsaicin), the deliberate induction of a swelling effect could
be perceived as a significant modification of one or more physiological functions
in the lips, thus bringing the products under the definition of medicinal products.
3.3.8. Products reducing cellulite
113. Question: Is a product which reduces cellulite in the skin a cosmetic

product?
114. Answer: A product which reduces cellulite may be a medicinal product by virtue
of function. This is the case if the product is a substance or a combination of
substances which are used in or administered to human beings inter alia with a
view to restoring, correcting or modifying physiological functions by exerting a
pharmacological, immunological or metabolic action.52 However, not any minor
modification of physiological function suffices to render a product a medicinal
product by virtue of function.53
3.3.9. Substances applied with skin-patches
115. Question: Is a product which is applied through a skin-patch a cosmetic

product?
116. Answer: A substance or mixture which is applied on the skin by way of a patch
may be a cosmetic product or a medicinal product. Apart from issues of
presentation of the product (cf. above, 4.), this depends of the question whether
the substance or mixture restores, corrects or modifies physiological functions by
exerting a pharmacological, immunological or metabolic action.
117. This has to be assessed on a case-by-case basis.54 In the case of patches,

consideration has to be given inter alia as to whether active ingredients enter the
general blood circulation thereby modifying physiological functions to an extent
that qualifies the product as medicinal product by virtue of function. On the other
hand, patches may have a merely local activity on the skin without
pharmacological action. One criterion to assess this may be whether the patch is
occlusive or not: occlusive patches may allow for a deeper penetration of the
substance thereby making the substance systemically available.
51 ECJ judgment of 16 April 1991, Upjohn, C-112/89, ECLI:EU:C:1991:147, paras. 21, 22.
53 Cf. ECJ judgment Upjohn, paras. 21, 22. Cf. “Cosmetics/medicinal products guidance document”,
paras. 31-34.
18
3.3.10. Products delivered through iontophoresis or similar
mechanisms
118. Question: Can products specifically intended to be delivered through

iontophoresis or similar mechanisms be cosmetic products?
119. Answer: Iontophoresis and similar mechanisms are techniques which exploit a
small electric charge to deliver a medicinal product or other mixtures through the
skin and they are commonly used by physical therapists, for instance, for the
application of anti-inflammatory products.
120. Such techniques could be used for cosmetic purposes, for example plumping up
lines and wrinkles, to deliver an ingredient whose penetration would be
significantly increased by the above-mentioned mechanisms. If the use of device
only results in a superficial penetration of the product in the epidermis, then the
product is still a cosmetic product and its safety should be assessed taking into
account this mode of delivery. On the other hand, if the use of device induces a
deeper penetration of certain ingredients, then the product could not be qualified
as a cosmetic.
121. A case-by-case evaluation of all characteristics of the product, including

absorption, concentration, route of administration, frequency of application,
application site, and the degree of penetration, in light of the specific mode of
delivery, should be carried out by the national competent authority, in order to
decide on the qualification of the product.
3.3.11. Products delivered through invasive techniques, such as

needle roller
122. Question: Can products intended to be used with needle rollers or similar
mechanisms be cosmetic products?
123. Answer: Needle-rollers are not cosmetic products; they are articles used to
enhance the absorption rate of cosmetic ingredients by the skin. The needle
rollers should only be used with products intended for such devices, otherwise, it
could be considered as a misuse of the cosmetic products.
124. The needles can have different lengths and reach different layers of the skin. If
the use of the roller only enables the application of the product in the epidermis,
then the product is a cosmetic and its safety should be assessed taking into
account the composition and the mode of delivery. On the other hand, if the
needles reach the dermis, the use of the roller induces a deeper application of the
product, and therefore this product cannot be qualified as a cosmetic.
125. A case-by-case evaluation of all characteristics of the product, including,

concentration, route of administration, frequency of application, sequence of
application55, application site, and the degree of penetration, in light of the specific
55 It is possible to use the roller first or apply the product first. This sequence of use may have an
impact on the penetration of the product.
19
mode of delivery, should be carried out by the national competent authority, in
order to decide on the classification of the product. The recommendation to use
the roller after applying an anaesthetic cream to the area to be treated may be an
indication that the depth of application intended by the device is greater than what
is usually expected for a cosmetic product.
3.3.12. Product to treat dry mouth
126. Question: Are products to treat dry mouth cosmetic products?
127. Answer: Products to treat dry mouth act by stimulating the production of saliva.
This mode of action is not compatible with a cosmetic function; therefore, they are
not cosmetic products.
3.3.13. Products for superficial moisturizing of female genital organ in

cases of extreme mucosal dryness
128. Question: Are products for moisturizing of female genital organs in cases of
extreme mucosal dryness cosmetic products?
129. Answer: Products for female genital organs may be considered cosmetic
products if they are intended to "be placed in contact with the various external
parts of the human body (… external genital organs) […]] with a view exclusively
or mainly to cleaning them, perfuming them, […] and/or correcting body odours
and/or protecting them or keeping them in good condition56".
130. The definition of cosmetic product explicitly refers to the external genital organs
only and the vagina is clearly excluded57.
131. In addition to the site of application, one should also consider that such products
may contain substances which significantly "restore, correct or modify
physiological functions by exerting a pharmacological, immunological or metabolic
action"58. Therefore, their qualification has to be decided on a case-by-case basis,
considering all the characteristics of the product, including, for example,
absorption, concentration, route of administration, frequency of application,
application site, and degree of penetration.

57 Ref. paragraph 2.1 of this Manual.
20
3.3.14. Topical breast augmentation products
132. Question: Are topical breast augmentation products cosmetic products?
133. Answer: Topical breast augmentation products achieve their objective through
the action of hormones59 or hormone-like substances (e.g. phyto-oestrogens).
They therefore significantly "restore, correct or modify physiological functions by
exerting a pharmacological, immunological or metabolic action"60 and cannot be
qualified as cosmetic products.
134. On the other hand, products only claiming to improve the breast's firmness may
be considered as cosmetic products. In any case, their qualification has to be
decided on a case-by-case basis, taking into account all the characteristics of the
product, including ingredients, concentration, absorption, frequency of application,
and degree of penetration.
3.3.15. Products claiming aromatherapy
135. Question: Are products claiming aromatherapy cosmetic products?
136. Answer: There is no harmonized definition of aromatherapy across the EU. The
intended function of such products may range from simple mood enhancing to
medical treatment.
137. The term “aromatherapy” is often found on the labelling of products which contain
essential oils or other plant extracts as a claim or even as part of a trademark, but
is does not prevent a product to be qualified as a cosmetic if it is "a substance or
mixture intended to be placed in contact with the various external parts of the
human body or with the teeth and the mucous membranes of the oral cavity with a
view exclusively or mainly to cleaning them, perfuming them, changing their
appearance and/or correcting body odours and/or protecting them or keeping
them in good condition".
national competent authorities on a case-by-case basis, and taking into account
all the relevant elements, such as the presentation of the products, the ingredient,
the mode of action and the claims.
59 The use of oestrogens in cosmetic products is prohibited according to Annex II, entry 260, of the
Cosmetics Regulation.
21
3.3.16. Products for atopic skin
139. Question: Are products for atopic skin cosmetic products?
140. Answer: According to common understanding, atopy is a type of hypersensitivity.
141. It seems that in the general meaning, atopy and atopic dermatitis are used as
synonyms in relation to cosmetic products. This makes the notion of atopy
ambiguous. WHO classified several diseases due to atopy: acute atopic
conjunctivitis, allergic asthma, atopic dermatitis, neurodermatitis, etc.
142. In light of these definitions, the products using claims related to atopy seem to fall
outside of the scope of the Cosmetics Regulation. However, the use of such
terms as "atopy" or “atopic skin” should be assessed on a case-by-case basis.
143. For instance, products presented as “appropriate for/suitable to skins with atopic
tendency/atopic skin” can be qualified as cosmetic products, if their purpose is to
place them in contact with the various external parts of the human body (…) in
order to exclusively or mainly clean them, perfume them, change their
appearance and/or correct body odours and/or protect them or keep them in good
condition. On the other hand, products presented as having properties to treat or
prevent atopy/atopic skin cannot be qualified as cosmetic products.
3.3.17. Products to reduce dark circle under the eyes, bruises or blue
spots
144. Question: Are products to reduce dark circle under the eyes, bruises or blue
spots cosmetic products?
145. Answer: Reduction of the visibility of discoloration of the skin can be achieved
either by covering it up through make-up or by acting on its causes.
146. Products to reduce the visibility of dark circles under the eyes, bruises or blue
spots, such as concealers, foundations and similar products are considered
cosmetics if they act only by masking or covering such discolorations.
147. On the other hand, products that act on the causes of discoloration in most cases
restore, correct or modify physiological functions by exerting a significant
pharmacological, immunological or metabolic action61. In this case, they are not
cosmetic products. The fact that the ingredients used are particularly suited for
the claimed purpose suggests that the product is likely to fall outside the scope of
148. In order to decide definitely about the qualification, the national competent
authorities should consider all the characteristics of the product, including, for
example, absorption, concentration, route of administration, frequency of
22
3.3.18. Products with claims related to bruises, bumps and similar

resorb bruises, swellings, bumps, a cosmetic product?
150. Answer: No, a product which is intended to resorb bruises, swellings, and bumps
is likely to exert a significant influence on physiological functions. Therefore, these
products are not cosmetic products. The classification of
anti-bruises/bumps/swelling products is a borderline issue between medicinal
product and medical device.
3.3.19. Skin-whitening products
151. Question: Are skin-whitening products cosmetic products?
152. Answer: Yes, in principle skin-whitening is considered as a cosmetic purpose.

This is confirmed by the listing of skin-whitening products in recital 7 of the
Cosmetics Regulation. However, pigmentation disorders, such as melasma,
chloasma and lentigo, are considered as medical conditions, and products
intended to treat them fall in the scope of the Medicinal products legislation.
153. In order to achieve the cosmetic whitening effect, several substances may be
legally used.
154. Other substances - such as hydroquinone, mercury compounds and

glucocorticoids (e.g. clobetasol propionate) – are banned when used in cosmetic
skin-whitening products. In this case, if skin-whitening products are marketed as
cosmetics, they are illegal cosmetics.
155. Some skin-whitening products containing hydroquinone and glucocorticoids,

although marketed as cosmetics, may actually qualify as medicinal products 63.
3.3.20. Products to relieve tired swollen and heavy legs
156. Question: Are topical products to relieve tired, swollen or heavy legs
cosmetic products?
157. Answer: No, leave-on products presented as relieving tired, swollen or heavy
legs are considered as intending to address minor peripheral circulatory disorders
and therefore cannot be qualified as cosmetics.
158. However, leave-on products with a primary cosmetic function (e.g. a moisturizer)
which are also presented as refreshing, cooling, soothing for the legs could be

63 See point 7 of the Introduction to this Manual.
23
qualified as cosmetic products, if they do not significantly restore, correct or
modify physiological functions by exerting a pharmacological, immunological or
metabolic action.
159. A case-by-case evaluation of all characteristics of the product, including the

ingredients, the mode of action, the degree of penetration, and the claims should
be carried out by the national competent authority, in order to decide on the
qualification of the product.
3.3.21. Anti-wrinkle products
160. Question: Are anti-wrinkle products cosmetic products?
161. Answer: Yes, in principle anti-wrinkle products can be cosmetic products. This is
confirmed by the listing of anti-wrinkle products in Annex I to Directive
76/768/EEC and recital 7 of the Cosmetics Regulation.
162. However, some products presented as anti-wrinkle may significantly restore,

correct or modify physiological functions by exerting a pharmacological,
immunological or metabolic action. In that case, they would not qualify as
cosmetics.
163. A decision on the qualification of the products has to be made by the national
competent authorities on a case-by-case basis, and taking into account all the
relevant elements, such as, for example, the presentation of the product, any
promotional literature, the composition, the product's specific pharmacological,
immunological or metabolic properties, the mode of application under normal and
reasonably foreseeable conditions of use, the frequency of application, the
application site, the degree of penetration and the risk which its use may entail.
164. In order to achieve the anti-wrinkle effect, several substances are typically used
and have different modes of action.
165. Some substances - such as tretinoin64 (all-trans retinoic acid), gerotine65

(spermine), phenol66 and progesterone67 are banned when used in cosmetic
products. In this case, if anti-wrinkle products containing these ingredients are
marketed as cosmetics, they are illegal cosmetics.
64 Annex II, 375.

65 Annex II, 411.
66 Annex II, 1175.
67 Annex II, 194.
24
3.3.22. Tattoo removal products
166. Question: Are products intended to chemically remove tattoos cosmetic

products?
167. Answer: No, chemical tattoo removers that require the injection of a substance or
mixture under the epidermis with a device/pen are not cosmetic products. They
generally create a local inflammatory reaction, which induces the extraction of the
inks from the dermis by the body's natural immune system.
168. In general, the final decision on the classification of these products should be
made on a case-by-case basis by the national competent authorities taking into
account all the characteristics of the product including its presentation,
composition, mode of action etc.
3.3.23. Products with “healing the skin” claims

promote the healing of the skin, a cosmetic product?
170. Answer: No, a product which, according to its main presentation, is intended to
promote the healing of the skin or to treat wounds does not fulfill the definition of
cosmetic as far as it does not correspond to a cosmetic purpose (cleaning,
perfuming, changing the appearance, protecting, keeping in good condition or
correcting body odours).
171. In addition, a claim on healing the skin leads to predict a significant metabolic
and/or pharmacological action, which is incompatible with the status of cosmetic
product.
172. The classification of these products is an issue of borderline between medicinal

products and medical devices, which should be addressed on a case-by-case
basis.
3.3.24. “Hot tanning products”
173. Question: Are products which contain substances that act by vasodilation
cosmetic products?
174. Answer: Products which contain substances acting by vasodilation, e.g. benzyl
and methyl nicotinate, are likely to restore, correct or modify physiological
functions by exerting a significant pharmacological, immunological or metabolic
action. It is therefore unlikely that they would be classified as cosmetic products.
175. Products which claim to enhance tanning in a solarium have been found to
contain such substances. The question of whether the formulated product causes
vasodilation in the skin has to be assessed by the competent authority on a
case-by-case basis taking into account all the characteristics of the product.
25
3.3.25. Products to remove “hard skin”
176. Question: Are products claiming reduction or removal of hard skin cosmetic
products?
177. Answer: "Hard skin" products soften the skin, e.g. on feet, knees and elbows, so
as to make it easier to remove keratinized layers of the skin using pumice stone,
file, scrub or other suitable tools. The softening effect is obtained through
moisturizing or mild keratolysis, which leaves live skin layers unchanged and does
not impact significantly on physiology and barrier function. They fulfil a cosmetic
function by maintaining the skin in good condition. They are cosmetic products.
3.3.26. Products to change the appearance of skin reddened due a

weak dilation or imperfection of capillary veins
178. Question: Are products claiming to change the appearance of skin

reddened due to a weak dilation or imperfection of capillary veins, typically
of the face (e.g. couperose), cosmetic products?
179. Answer: Products that change the appearance of skin reddened due a weak
dilation or imperfection of capillary veins may be considered to fulfil the definition
of cosmetic products.
180. Changing the appearance can be achieved either by covering the reddened skin
through make-up or by acting on its causes.
181. Products to cover up reddened skin may be concealers, foundations and similar
products. These are considered cosmetics if they act only by masking or covering
the reddening.
182. On the other hand, products that act on the causes of skin reddening through
restoring, correcting or modifying physiological functions by exerting a
pharmacological, immunological or metabolic action may fulfill the definition of
pharmaceutical product. However, "that criterion does not serve to include
substances such as certain cosmetics which, while having an effect on the human
body, do not significantly affect the metabolism and thus do not strictly modify the
way in which it functions"68. Such modification should be "significant" for the
product to qualify as a medicine.
183. In order to decide definitely about the qualification of the product, the national
competent authorities should consider all of its characteristics, including, for
example, presentation, composition, absorption, concentration, frequency of
application, and degree of penetration.
68 Cf. ECJ judgment of 16 April 1991, Upjohn, C-112/89, ECLI:EU:C:1991:147, paras. 21, 22.
26
3.3.27. Tattoo aftercare products
184. Question: are products for treating the non-intact skin after tattooing
cosmetic products?
185. Answer: No. The principal purpose of a cosmetic product is defined by the
“correcting body odours”, “protecting”, or “keeping in good condition”.
186. An aftercare product applied on non-intact skin just after tattooing, which
according to its main presentation, is intended to promote the healing of the skin,
the treatment of wounds or the prevention of infection does not have an exclusive
or main cosmetic function and thus does not fall within the scope of the Cosmetics
Regulation. This qualification is not precluded by the fact that the substances
contained in the formulation of that aftercare product may also be used in
cosmetics.
3.3.28. Products for acne and spots
187. Question: Can products for acne or spots that are intended to be used on
the skin be considered as cosmetic products?
188. Answer:
189. Products for spots
190. Spots are understood to be clogged sebum duct (commonly referred to as

"clogged pores") that form on the skin as a result of the skin’s normal functions
such as cell renewal, shedding and sebum production and which may be correctly
defined as primary comedones. They are transient conditions of the skin and may
present as blackheads (open comedones) or whiteheads (closed comedones).
191. Therefore, products that function to prevent the formation of spots or function to
protect the face from spots through a cleansing action may fulfil the cosmetic
definition depending on how the product is presented, the claims that are made
about the product and the ingredients used in the product. Such products should
not make any explicit or implicit claims related to the prevention or treatment of
acne.
192. Claims made for products used for spots should comply with the functions
expected of a cosmetic product such as to clean, protect or keep the skin in good
condition by effectively removing clogged sebum duct (so-called "pores"),
accumulated sebum and debris from the skin given that such effects are generally
considered to only affect the appearance of primary comedones but do not
prevent or treat acne. The ingredients used in such products should not restore,
correct or modify physiological functions by exerting a pharmacological,
immunological or metabolic action (e.g. with regard to anti-inflammatory effects;
27
anti-infective effects; sebum production controlling effects), significantly affecting
the metabolism69, nor should the product claim any such effects.
193. Products for spots may also claim “suitable for acne-prone skin” provided undue
prominence is not given to the claim; as such, the product should be presented in
a manner that does not give the impression, either explicitly or implicitly, that it is
for the prevention or treatment of acne or skin disease.
194. The classification of products for spots is decided on a case-by-case basis taking
into account all of the characteristics of the product, such as the function of the
product, how the product is presented, the claims made about the product, the
ingredients used, the mode of action, and how the product is to be used.
195. Products for acne
196. Acne is a state of the skin that is often characterised by the presence of persistent
spots, excessive seborrhoea, infection, inflammation, and skin damage.
Therefore, products that are presented, either explicitly or implicitly, for use in the
prevention or treatment of acne (e.g. Acne vulgaris) or other inflammatory
lesions of the skin (such as papules and pustules) do not fulfil the definition of a
cosmetic product and, as such, should not be placed onto the EU market under
the cosmetics regulatory framework. For example, a product that is presented as
an ‘anti-acne’ product should not be marketed as a cosmetic product.
3.3.29. Piercing care products
197. Question: Are piercing care products cosmetic products?
198. Answer: The principal purpose of a cosmetic product is defined by the Cosmetics
Regulation as “cleaning”, “perfuming”, “changing the appearance”, “protecting”,
“keeping in good condition”, or “correcting body odours”.70
199. A piercing care product applied on pierced skin which according to its main
presentation, is intended to promote the healing of the skin, the treatment of
wounds or the prevention of infection does not have an exclusive or main
cosmetic purpose and thus does not fall within the scope of the Cosmetics
Regulation.
200. In addition, a claim on healing the skin leads to predict a significant metabolic
and/or pharmacological action, which is incompatible with the status of a cosmetic
product.
201. A piercing care product used on pierced "external parts of the human body" 71
which have healed, mainly to clean and / or perfume, without a main antimicrobial
or antiseptic function, may fall within the scope of the Cosmetics Regulation.
69 Cf. ECJ judgment of 16 April 1991, Upjohn, C-112/89, ECLI:EU:C:1991:147, paras. 21,22.
28
202. In order to decide definitely about the qualification of the product, the national
competent authorities should consider all of its characteristics, including, for
application, degree of penetration and claims.
3.3.30. Mouthwashes and dental gels
203. Question: Is a mouthwash or a dental gel (other than regular toothpaste) a

cosmetic product?
204. Answer: Mouthwashes and dental gels may be considered as cosmetic products
provided that they are intended to be placed in contact with the teeth and the
mucous membranes of the oral cavity and the purpose of their use is “exclusively
or mainly cleaning them, perfuming them, changing their appearance, protecting
them, keeping them in good condition or correcting body odours”.
205. Mouthwashes and dental gels with secondary "antimicrobial" claims may be
considered as cosmetic products provided that the main purpose of use is that of
a cosmetic product.
206. A product which is presented or intended for the treatment or prevention of

infections, inflammation or other oral cavity diseases should not be considered as
a cosmetic product.
national competent authorities, on a case-by-case basis, and taking into account
all the characteristics of the product, such as the presentation of the products, the
ingredients, the mode of action and instructions of use.
3.3.31. Nail care products
208. Question: Are all nail care products cosmetic products?
209. Answer: Nail products including for toenails, which are not presented as a
medicinal product or intended as a medical device, cover a wide range of
products, with different functions and modes of action (creams, nail polishes, oils,
etc., for example to moisturize, strengthen, smooth or decorate nails).
210. Nail products with an exclusive or main cosmetic purpose, such as protecting the
nails, keeping them in good condition or changing their appearance, may fall
within the scope of the Cosmetics Regulation provided they do not restore, correct
or modify physiological functions (i.e. by affecting significantly the metabolism and
modifying the way in which it functions)72 by exerting a pharmacological,

72 ECJ judgment of 16 April 1991, Upjohn, C-112/89, ECLI:EU:C:1991:147, para. 22.
29
immunological or metabolic action. Products which according to their overall
characteristics are intended to treat or to prevent fungal nail infections or other
diseases cannot be qualified as cosmetic products.
211. The fact that the product contains an ingredient which is also contained in
medicinal products as active ingredient is not decisive. However, this may be an
indicator for a pharmacological, immunological or metabolic action of the
substance.
212. A case-by-case assessment of all characteristics of the product, including, for

application, degree of penetration and claims, should be carried out by the
national competent authority, in order to decide on the qualification of the product.
213. Products against nail biting
214. Products against nail biting are usually understood as nail polishes with a bitter
tasting ingredient to discourage users from biting their nails. The main function
claimed is usually that of preventing nail biting.
215. The purpose of prevention of nail biting cannot as such be considered as a

cosmetic purpose (defined as “cleaning”, “perfuming”, “changing the appearance”,
“protecting”, “keeping in good condition”, or “correcting body odours”73).
216. A product intended exclusively or mainly for the prevention of nail biting should
not be qualified as a cosmetic product. The intended main purpose of use should
be determined on a case-by-case basis.
3.3.32. Massage products
217. Question: Are massage products cosmetic products?
218. Answer: The exclusive or main purpose, of a cosmetic product is defined by the
“protecting”, “keeping in good condition”, or “correcting body odours”.74
219. The assessment of the product should be made on a case-by-case basis, taking
into account all characteristics of the product.
220. A product, for example an oil, which is only aimed to help the act of massage may
not fall within the scope of application of the Cosmetics Regulation.
221. However, a product, for example an oil, with an exclusive or main cosmetic
purpose, such as protecting the skin, moisturizing, nourishing or perfuming it,
which might be used for a massage falls within the scope of application of the

30
Cosmetics Regulation. The overall presentation of the product, product claims
and ingredients will provide a useful indication over its intended main purpose.
222. Question: Are products intended to have effect on muscles cosmetics

products (for example before or after sport)?
223. Answer: No, products mainly intended to have an effect on muscles, for example
provide muscle relief or warming or cooling, before or after sport, cannot be
qualified as cosmetic products.
3.4. Borderline with Medical Devices
3.4.1. Products which, according to their presentation, are intended to peel

the skin
224. Question: Is a skin-peeling product a cosmetic product?
225. Answer: Skin-peeling products are understood as products which remove dead
cells or cell layers from the surface of the skin through mechanical or chemical
action.
226. They may fulfil a cosmetic function (e.g. cleansing the skin, changing its
appearance and keeping it in good condition), but may also be used in some
circumstances to restore, correct or modify physiological functions of the skin (e.g.
removal of scar tissue).
227. Depending on their composition and intended use, skin peeling products can
increase the desquamation of isolated dead cells from the outermost skin surface
or they can remove some or all cell layers of the stratum corneum.
228. Products that are intended to remove isolated cells or the top layers of the stratum
corneum are not expected to significantly impact the normal skin physiology and
barrier function. They can be considered as cosmetics.
229. Peelings that expose the deeper layers of the stratum corneum, or result into the
complete removal of the stratum corneum significantly impact the skin physiology
and barrier function. Such product could not be considered as a cosmetic
product75.
230. Therefore, in order to decide about the qualification of a skin-peeling product, the
competent authorities have to consider all the characteristics of the product and in
particular the claims, the depth of peeling per application and the frequency of
application.
75 Cf. Manual on Borderline for Medical Devices, Section 4.11, available at:
http://ec.europa.eu/DocsRoom/documents/26785/attachments/1/translations.
31
3.4.2. Products against head lice
231. Question: Are products against head lice cosmetic products?
232. Answer: Products against head lice are not cosmetic products, because they do
not have a cosmetic purpose. They are indeed not meant to "be placed in contact
with the various external parts of the human body (epidermis, hair system, nails,
lips and external genital organs) […] with a view exclusively or mainly to cleaning
them, perfuming them, changing their appearance and/or correcting body odours
and/or protecting them or keeping them in good condition76".
233. The qualification of anti-lice products is a borderline issue between medicinal

products, medical devices and biocides.
3.4.3. Styptic Pencils
234. Question: Are styptic pencils cosmetic products?
235. Answer: Styptic or haemostatic pencils are sticks generally used to seal small
cuts, especially from razors. They are applied directly to the bleeding site and will
stop the bleeding immediately.
236. The purpose to stop bleeding or seal a wound cannot be considered a cosmetic
purpose.
3.5. Borderline with Other Legislations
3.5.1. Products which, according to their presentation, are defined to

be used to detect plaque on teeth
to be applied on the teeth in order to subsequently detect remaining plaque,
cosmetic products?
238. Answer: These substances or mixtures are applied on the teeth. The question is
whether they are exclusively or mainly intended to change the appearance of the
teeth. While this has to be considered on a case-by-case basis, the exclusive
purpose of these substances is the detection of plaque, rather than colouring the
teeth. The fact that the plaque is detected by colouring certain parts of the teeth
(those parts which have plaque) does not alter this assessment: the colouring
effect is not the exclusive or main function, but a by-effect of the actual intended
function, i.e. detecting plaque.
239. Therefore, these products are not cosmetic products.
32
to remove glue used to fix articles on the skin cosmetic
products?
to remove glue used to fix articles on the skin or nails cosmetic products?
241. Answer: Substances and mixtures which are intended to remove glue from the
skin or nails are intended to cleaning them and thus have a cosmetic function.
242. Therefore, these products fall within the scope of the Cosmetics Regulation.
3.5.3. Products which, according to their presentation, are intended

to stimulate sexual activity
243. Question: Is a product which, according to its presentation, is exclusively or

mainly intended to stimulate sexual activity more agreeable by facilitating
penetration a cosmetic product?
244. Answer: No. Article 2(1)(a) of the Cosmetics Regulation defines “cosmetic
product” as “any substance or mixture intended to be placed in contact with the
various external parts of the human body (epidermis, hair system, nails, lips and
external genital organs) or with the teeth and the mucous membranes of the oral
cavity with a view exclusively or mainly to cleaning them, perfuming them,
changing their appearance and/or correcting body odours and/or protecting them
or keeping them in good condition.” This does not entail the purpose as described
above.
3.5.4. Essential oils
245. Question: Are (pure) essential oils cosmetic products?
246. Answer: An essential oil is defined as a volatile part of a natural product, which
can be obtained by distillation, steam distillation or expression (the latter in the
case of citrus fruits). It contains mostly volatile hydrocarbons. Essential oils are
derived from various sections of plants. The oil is "essential" in the sense that it
carries a distinctive scent, or essence of the plant.77
247. Essential oils are used for instance as ingredients of cosmetic products, including
perfumes and soaps, for flavouring food and drinks, and for adding scents to
incense and household cleaning products. Essential oils are also used in the field
of aromatherapy.
248. Essential oil which is only intended for use under aromatherapy 78 practices
without identifying an exclusive/main cosmetic purpose or (pure) essential oils,
77 https://echa.europa.eu/support/substance-identification/sector-specific-support-for-substance-
identification/essential-oils.
78 There is no harmonized definition of aromatherapy across the EU.
33
which are intended to be inhaled or ingested, would fall outside the scope of the
Cosmetics Regulation.79
249. Similarly, (pure) essential oils may be considered as cosmetic products, provided
that they are “intended to be placed in contact with the external parts of the
human body […] or with the teeth and the mucous membranes of the oral cavity”
and the purpose of their use is “exclusively or mainly cleaning them, perfuming
them, changing their appearance, protecting them, keeping them in good
condition or correcting body odours” and provided they do not fall under the
medicinal product definition.
250. In practice, the application of undiluted essential oils directly on the parts of the
human body as listed in the cosmetic product definition is limited.
251. If a (pure) essential oil does not fall within the cosmetic product definition based
on all the characteristics of the product, it is not affected by the mere fact that the
labelling/packaging states that it is a cosmetic product80.
252. A case-by-case assessment of the product, taking into account all its
characteristics, such as overall presentation, composition, claims, should be
carried out by the national competent authority, in order to decide on the
qualification of the product.
3.5.5. Products intended to simulate wounds, scars, warts, etc.
253. Question: Is a product intended to simulate wounds, scars, warts, etc. on

the skin a cosmetic product?
254. Answer: Products consisting of substances or mixtures, e.g. based on wax or

liquid latex, used on the skin to simulate/ give the impression of scars, wounds,
warts, etc. can be considered as cosmetic products to the extent that they are
intended to be placed in contact with the external parts of the human body and
the purpose of their use is exclusively or mainly to changing their appearance.
255. The fact that an article (paper or other material) is used in combination with those
products should not prevent their qualification as cosmetic products, provided that
they are intended to be placed in contact with the external parts of the human
body and that their purpose of use is to change the appearance of those parts,
once an article is attached.
256. Ready to use articles simulating/ giving the impression of scars, wounds, warts,
etc. which are attached to the skin are not cosmetic products.
79 Article 2(2) of the Cosmetics Regulation.

80 Judgment of 3 September 2015, C-321/14, Colena AG, EU:C:2015:540, para. 25: "the definition in
Article 2(1)(a) of Regulation No 1223/2009 does not contain a category of cosmetic products
defined by reference to their ‘presentation’, whereby it is possible to categorise a product as a
‘cosmetic product’ as a matter of law for the sole reason that it is presented as such".
34
3.5.6. "Cosmetic kits"
257. Question: Are “Cosmetic kits” covered by the Cosmetics Regulation?
258. Answer: There are several types of “kit products” on the market, including
cosmetic kits. However, there is no definition of a cosmetic kit in the Cosmetics
Regulation. For the purpose of this manual, cosmetic kits are defined as cosmetic
products consisting of components to be mixed (e.g. soap chips or a cream base
to be mixed with a colouring mixture and/or a fragrance mixture, hair dyes etc.)
that require some form of manipulation/preparation by the end-user
(e.g. processing/mixing/diluting ingredients, etc.), according to associated
instructions and a specified formulation.
259. Therefore, “Cosmetic kits” consisting of components to be mixed according to

clear associated/linked instructions, where the intended final product has an
exclusive or main cosmetic purpose, are considered cosmetic products.
260. In such a case, the Cosmetics Regulation applies and the “cosmetic kit” must be
assessed, labeled, etc. and notified, by the responsible person as a
multi-component cosmetic product to the Cosmetic Products Notification Portal
(CPNP). In this case, CLP Regulation81 does not apply since the product can be
considered in the finished state and intended for the final user (Article 1(5)(c) of
the CLP Regulation). Nonetheless, appropriate precautions and warnings should
be provided to the end-user in respect of each ingredient used and in respect of
the final cosmetic product e.g. by means of label warnings on the ingredients
used.
261. If the end-user is supposed to add any ingredient that is not provided in the kit
(e.g. water), to the formulation, this should also be taken into account in the safety
assessment.
262. Single ingredients for use within a cosmetic kit are considered subject to the
Cosmetics Regulation as long as there is a link with the “recipe” (instructions and
formulation) for the final cosmetic product (e.g. same label or clear reference to
the original cosmetic kit).
263. Substances and mixtures, which are not linked to specific instructions on how to
make a cosmetic product from them, and where the components are not cosmetic
products on their own, are not cosmetics. For these substances and mixtures, the
CLP Regulation applies. If the substances and mixtures are then mixed and
placed on the market as cosmetic products, the Cosmetics Regulation applies
and the manufacturer becomes a responsible person.
264. Cosmetic kits that are toys82 are covered by both the Cosmetics Regulation and
the Toy Safety Directive. The Directive defines a cosmetic kit as “a toy, the
purpose of which is to assist a child to learn to make products such as fragrances,
81 Regulation (EC) No 1272/2008 on classification, labelling and packaging of substances and

mixtures, OJ L 353, 31.12.2008.
82 Toys are products designed or intended, whether or not exclusively, for use in play by children
under 14 years of age.
35
soaps, creams, shampoos, bath foams, glosses, lipsticks, other make-up, tooth-
paste and conditioners”. The Directive sets specific safety requirements for toy
cosmetic kits, in particular regarding allergenic fragrances. Technical
specifications can be found in standard EN 71-13 Olfactory board games,
cosmetic kits and gustative games, of which the edition referenced most recently
in the Official Journal applies.83
3.5.7. Dual function soap (personal and laundry care)
265. Question: Is a product that has a dual function: as a body soap and laundry
detergent a cosmetic product, a detergent product or both?
266. Answer: A product falls within the definition of a cosmetic product if it is “a

substance/mixture intended to be placed in contact with the various external parts
of the human body […] with a view exclusively or mainly to cleaning them,
perfuming them, changing their appearance, protecting them, keeping them in
good condition or correcting body odours.”
267. If a soap-based mixture is intended for washing laundry, it falls under the
definition of a detergent, which is “a substance or mixture containing soaps and/or
other surfactants intended for washing (i.e. cleaning of laundry, fabrics, dishes
and other hard surfaces) and cleaning processes. […]” (Article 2(1) and (2) of the
Detergents Regulation84).
268. A soap may qualify as a cosmetic product only if its primary use is for a cosmetic
purpose (such as cleaning the human body). The Cosmetics Regulation may also
apply to soaps that have a main cosmetic function while having secondary
non-cosmetic functions. In most cases of these personal care soaps, the cosmetic
function will be considered as the primary one and only the Cosmetics Regulation
will apply. However, some soaps may have a main cosmetic function together
with another essential function.
269. In the specific case of dual use soaps – products claiming to have both a function
with a main cosmetic purpose of cleaning the body and a secondary non-cosmetic
function of a laundry detergent – the Cosmetics Regulation applies (provided that
all the other criteria are met), since the product has the main function of cleaning
external parts of the human body. This classification as a cosmetic product is not
precluded by the fact that such a dual-use product may also qualify as a detergent
under the Detergent Regulation.
270. If a soap claims dual function as a cosmetic product and a detergent, and if it falls
under the scope of both Regulations, it has to comply with both legal regimes and
their requirements (i.e. concerning ingredients, labelling, notification etc.).
83 https://ec.europa.eu/growth/single-market/european-standards/harmonised-standards/toys_en.
84 Regulation (EC) No 648/2004 on detergents, OJ L 104, 8.4.2004, p. 1–35.
36
271. In any case, a decision on the qualification of each product has to be made by the
national competent authorities on a case-by-case basis, and taking into account
all characteristics of the product, such as the presentation of the product, the
ingredients, the mode of action and the claims. The intended dual use of a
product is also to be determined on a case-by-case basis for each product.
37

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MANUAL OF THE WORKING GROUP ON COSMETIC PRODUCTS

(SUB-GROUP ON BORDERLINE PRODUCTS) ON THE SCOPE OF

VERSION 5.2 (SEPTEMBER 2020)

PLEASE NOTE: THIS MANUAL IS A DOCUMENT PREPARED BY THE SUB-GROUP

THIS MANUAL IS NOT A EUROPEAN COMMISSION DOCUMENT. IT SHALL ONLY

Version 5.2 September 2020 contains the following changes:

 Two new entries: ”Cosmetic kits” and Dual function soap;

Table of Contents _________________________________________________________ i

1. The clear determination of the scope of application of Regulation (EC) No

2. With regard to Directive 2001/83/EC of the European Parliament and of the

2 OJ L 342, 22.12.2009, p. 59.

1.1. Tongue brushes releasing a substance or a mixture

10. Question: Is a tongue brush which releases a substance or a mixture a

1.2. Clothes releasing a substance or a mixture

15. Question: Is an item of clothing, which releases a substance or a mixture to

(cf. “Cosmetics/medicinal products guidance document”).

1.3. Tooth picks and tooth floss

22. However, they may be intended to act as a “vehicle” to deliver a substance or a

24. Question: Is a patch a cosmetic product?

9 OJ L 19, 23.1.2009, p. 29.

26. Question: Is a washable, temporary “tattoo” (i.e. a little picture which is

27. Answer: The moistened picture may be considered as a mixture. It is intended to

28. Therefore, such a product is likely to be considered as a cosmetic product,

30. Question: Is a wipe which releases a substance or a mixture a cosmetic

32. Question: Is a wig a cosmetic product?

12 Cf. above, 1.1.

Evaluation, Authorisation and Restriction of Chemicals.

2008 on classification, labelling and packaging of substances and mixtures.

34. Question: Is a laser device used to remove tattoos a cosmetic product?

1.9. Wet razors releasing substances/mixtures

36. Question: Is a wet razor which releases a substances or a mixture a

39. A formulation (e.g. soap / moisturizing / perfuming) attached to a razor and

40. Question: Is a product which is, according to its presentation, intended to

44. The Cosmetic Regulation defines “cosmetic product” as “any substance or

46. “Food” is defined in Regulation (EC) No 178/2002 of the European Parliament

– whether the mixture/substance is meant to be entirely swallowed (normally

– whether the mixture/substance once brought in touch with the mucous

– whether the mixture/substance is absorbed by the oral mucosa (normally

2.3. Ingestion (chewing gum)

53. As shown above24, the determination whether a substance/mixture is “food” or a

– whether the mixture/substance is meant to be entirely swallowed (normally

– whether the mixture/substance once brought in touch with the mucous

– whether the mixture/substance is absorbed by the oral mucuosa (normally

– The mixture/substance released by the chewing gum is usually entirely

2.4. Nasal sprays

56. Question: Are nasal sprays cosmetics products?

59. Question: Is a tooth-whitening product, placed inside the tooth, a cosmetic

28 Art. 2(1)(a) of the Cosmetics Regulation.

3.1. Borderline with Toys

3.1.1. Products which, according to their presentation, are destined

63. Answer: The question whether a substance or mixture is intended to be used

3.1.2. Products which, according to their presentation, are destined

3.1.4. Face paints, body paints, aerography

3.2.1. Leave-on products presented as “antiseptic” or “antibacterial”

76. Question: Is a leave-on product which, according to its presentation, is

77. Answer: A product which presents itself as “antiseptic” or “antibacterial” may be a

78. With regard to the “borderline” cosmetic products/biocidal products it should be

3.3. Borderline with Pharmaceutical / Medicinal Products

3.3.1. Products which, according to their presentation, are intended to

80. Question: Is a product which, according to its presentation, is intended to