Perfumery and Cosmetic Products: Legal Regulation in Russia

April 20, 2022

BRACE ©

The perfumery and cosmetic industry is one of the most dynamically developing sectors of the economy. The structure of the perfumery and cosmetic market is constantly changing. In recent years, due to the coronavirus pandemic, online trade has actively developed, significantly changing the structure of consumer demand. The assortment of pharmacy cosmetics has expanded, and sales through marketplace aggregators have increased.

Due to the complex composition of perfumery and cosmetic products, the state establishes requirements for their quality and safety, as well as rules for their circulation in the market.

This article discusses the main regulatory requirements for the circulation of perfumery and cosmetic products.

General Requirements for Perfumery and Cosmetic Products

The main regulatory document establishing mandatory requirements for perfumery and cosmetic products in the territory of the EAEU (Russia, Belarus, Kazakhstan, Armenia, Kyrgyzstan) is the Technical Regulation of the Customs Union 009/2011 "On Safety of Perfumery and Cosmetic Products" (hereinafter – "TR CU 009/2011").

It applies to perfumery and cosmetic products in consumer packaging produced in the territory of the Customs Union member states, as well as to products imported from third countries.

TR CU 009/2011 establishes safety requirements for perfumery and cosmetic products (hereinafter – "PCP"), as well as requirements for the processes of production, storage, transportation, and disposal.

In particular, the Regulation establishes requirements for:

• Composition;
• Physical and chemical indicators;
• Microbiological indicators;
• Content of toxic elements;
• Toxicological indicators;
• Clinical (clinical-laboratory) indicators;
• Manufacturing;
• Consumer packaging;
• Labeling of products.

Prior to the release of PCP into circulation in the customs territory of the Customs Union, the products are subject to a conformity assessment.

Conformity assessment of perfumery and cosmetic products is carried out in the following forms:

1. Declaration of conformity.

It is carried out for the majority of perfumery and cosmetic products. The declaration of conformity of perfumery and cosmetic products is registered for one or several names of products of the same name and is valid until the introduction of changes to the name of the PCP and (or) to the formulation, leading to changes in safety indicators.

The validity period of the declaration of conformity is:

• 5 years (for mass-produced products);
• Or equals the shelf life of the products (for a batch of products).

2. State registration.

State registration with the issuance of a State Registration Certificate (SRC) is carried out for the following types of products listed in Appendix No. 12 to TR CU 009/2011:

• Perfumery and cosmetic products for artificial tanning;
• Perfumery and cosmetic products for skin whitening (lightening);
• Cosmetic products for permanent makeup;
• Intimate cosmetics;
• Perfumery and cosmetic products for protecting the skin from exposure to harmful occupational factors;
• Children's cosmetics;
• Perfumery and cosmetic products for chemical coloring, lightening, and highlighting of hair;
• Perfumery and cosmetic products for chemical waving and straightening of hair;
• Perfumery and cosmetic products manufactured using nanomaterials;
• Perfumery and cosmetic products for depilation;
• Peels;
• Fluoridated oral hygiene products containing a mass fraction of fluorides exceeding 0.15% (for liquid oral hygiene products – 0.05%);
• Teeth whitening products containing hydrogen peroxide or other components that release hydrogen peroxide, including carbamide peroxide and zinc peroxide, with a hydrogen peroxide concentration (as a substance or released) of 0.1%–6.0%.

The validity period of the SRC is:

• 5 years (since May 5, 2017);
• For SRCs issued before the entry into force of the amendments (before May 5, 2017) – perpetual.

The conformity assessment of PCP confirms the product's safety. The turnover of perfumery and cosmetic products without documents confirming compliance with the requirements of TR CU 009/2011 is prohibited [1].

Labeling of Perfumery and Cosmetic Products

To ensure the transparency of the market and to combat counterfeit products, a national digital labeling system "Chestny ZNAK" has been created in Russia.

By Decree of the Government of the Russian Federation No. 1957 dated December 31, 2019, rules for the labeling of perfumes and eau de toilette were approved. The mandatory labeling of this group of goods began on October 1, 2020. From this date, the circulation of unmarked goods is prohibited.

According to said decree, participants in the circulation of perfumes and eau de toilette must:

• Register in the state information system for monitoring the circulation of goods subject to mandatory labeling by means of identification (GIS MT) by March 31, 2020 (inclusive), or after March 31, 2020, within 7 calendar days from the date of the need to engage in activities related to the circulation of perfumes and eau de toilette;
• Ensure the readiness of their own software and hardware resources for information interaction with the monitoring system and send an application for remote access testing to the operator within 30 calendar days from the date of registration in the monitoring system;
• Undergo testing of information interaction within 60 calendar days from the date of readiness of their own software and hardware resources;
• Beginning October 1, 2020, enter information into the monitoring system regarding the labeling of perfumes and eau de toilette, as well as the turnover and withdrawal from circulation of these goods.

For labeled products, participants in the turnover are obliged to submit information to the "Chestny ZNAK" system regarding the entry of goods into circulation, their movement, and sale.

It should be noted that testers and samples of perfumery products intended not for sale directly to the consumer but for marketing and advertising purposes are not subject to labeling [2].

In addition, currently, in accordance with the Decree of the Government of the Russian Federation dated January 15, 2024, No. 24, an experiment is being conducted on the labeling of certain types of perfumery and cosmetic products intended for hand hygiene with antimicrobial activity [3].

Sale of Perfumery and Cosmetic Products by Remote Method

Currently, the sale of goods by remote method is regulated by the Law of the Russian Federation "On Protection of Consumer Rights" and the Rules for the Sale of Goods under Retail Sale and Purchase Contracts approved by the Decree of the Government of the Russian Federation No. 2463 dated December 31, 2020.

The sale of goods by remote method is understood as the sale of goods under a retail sale and purchase contract concluded based on the consumer's familiarization with the description of the goods offered by the seller via catalogs, prospectuses, booklets, photographs, means of communication (television, postal, radio communication, and others) or other means excluding the possibility of direct acquaintance of the consumer with the goods or a sample of the goods upon conclusion of such a contract.

When selling goods by remote method, the seller is obliged to provide the consumer with complete and reliable information characterizing the offered goods, including information on the main consumer properties of the goods, the place of manufacture, the price, and the conditions for the purchase of the goods, its delivery, service life, shelf life, and warranty period, the order of payment for the goods, and the period during which the proposal to conclude the contract is valid.

It is important to note the specifics of the return of perfumery and cosmetic products purchased remotely.

In general, perfumery and cosmetic products of proper quality are not subject to exchange or return. This rule is enshrined in the List of Non-Food Goods of Proper Quality Not Subject to Exchange, approved by the Decree of the Government of the Russian Federation No. 2463 [4].

However, this restriction applies to sales in stationary retail networks. When selling by remote method, different rules apply.

In accordance with Paragraph 4 of Article 26.1 of the Law on Protection of Consumer Rights, the consumer has the right to refuse the goods at any time before its transfer, and after the transfer of the goods – within 7 days. If information on the procedure and terms for returning goods of proper quality was not provided in writing at the time of delivery of the goods, the consumer has the right to refuse the goods within 3 months from the moment of transfer of the goods.

At the same time, the law does not establish exceptions for any categories of goods, including perfumery and cosmetic products. Judicial practice confirms this approach [5].

Thus, when selling perfumery and cosmetic products by remote method, the consumer has the right to return goods of proper quality within the time limits established by law, provided that the goods' presentation, consumer properties, and a document confirming the fact and conditions of purchase of the specified goods are preserved.

Parallel Import and Counterfeit of Perfumery and Cosmetic Products

Under current legislation, the use of a trademark is the exclusive right of the rights holder. No one has the right to use a trademark without the permission of the rights holder.

Goods labeled with a trademark and introduced into civil circulation in the territory of the Russian Federation directly by the rights holder or with his consent are recognized as legally introduced into circulation. This principle is called the national principle of exhaustion of exclusive rights [6].

Parallel import is the importation of original goods labeled with a trademark into the territory of the country by persons not authorized by the rights holder (importers), but where these goods were legally introduced into circulation in the territory of another country by the rights holder or with his consent.

From a legal point of view, parallel import in the Russian Federation, in general, constitutes a violation of the exclusive right to a trademark, since the national principle of exhaustion of rights applies.

However, in 2022, against the background of sanctions pressure, the Government of the Russian Federation legalized parallel import for certain groups of goods. The Ministry of Industry and Trade of Russia approved a list of goods (groups of goods) in respect of which the provisions of the Civil Code of the Russian Federation on the protection of exclusive rights to the results of intellectual activity expressed in such goods and the means of identification applied to such goods do not apply [7].

It is important to distinguish parallel import from counterfeit. Counterfeit products are goods on which a trademark or a confusingly similar designation is illegally placed. Counterfeit products are often of poor quality and can pose a danger to consumer health.

The circulation of counterfeit perfumery and cosmetic products is strictly prohibited. For the sale of counterfeit products, administrative and criminal liability is provided.

The consumer has the right to purchase goods of proper quality, safe for life and health. If the consumer is sold counterfeit goods, he has the right to demand a refund of the amount paid, as well as compensation for damages and moral harm.

Thus, the circulation of perfumery and cosmetic products is subject to strict legal regulation aimed at ensuring the safety and quality of products, as well as protecting the rights of consumers. Participants in the turnover must comply with the requirements of technical regulations, labeling rules, and trade rules to avoid liability and ensure the legitimate circulation of goods.

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References

[1] Technical Regulation of the Customs Union 009/2011 "On Safety of Perfumery and Cosmetic Products" (TR CU 009/2011).

[2] Decree of the Government of the Russian Federation dated December 31, 2019, No. 1957 "On Approval of the Rules for Labeling Perfumes and Eau de Toilette with Identification Means".

[3] Decree of the Government of the Russian Federation dated January 15, 2024, No. 24 "On Conducting an Experiment on Labeling Certain Types of Perfumery and Cosmetic Products Intended for Hand Hygiene with Antimicrobial Activity with Identification Means in the Territory of the Russian Federation".

[4] Decree of the Government of the Russian Federation dated December 31, 2020, No. 2463 "On Approval of the Rules for the Sale of Goods under Retail Sale and Purchase Contracts, the List of Durable Goods Not Subject to the Requirement of the Consumer for Free Provision of Goods Possessing the Same Basic Consumer Properties for the Period of Repair or Replacement of Such Goods, and the List of Non-Food Goods of Proper Quality Not Subject to Exchange, as well as on Making Changes to Certain Acts of the Government of the Russian Federation".

[5] Resolution of the Supreme Court of the Russian Federation dated June 1, 2021, No. 46-AD21-1-K6.

[6] Article 1487 of the Civil Code of the Russian Federation.

[7] Resolution of the Constitutional Court of the Russian Federation dated February 13, 2018, No. 8-P; Order of the Ministry of Industry and Trade of Russia dated April 19, 2022, No. 1532 "On Approval of the List of Goods (Groups of Goods) in Respect of Which the Provisions of Subparagraph 6 of Article 1359 and Article 1487 of the Civil Code of the Russian Federation Do Not Apply, Provided That Said Goods (Groups of Goods) Were Introduced into Circulation Outside the Territory of the Russian Federation by Rights Holders (Patent Holders), as well as with Their Consent".