Consumer Products (Non-Food)

From ‘A’ for all-purpose cleaners to ‘Z’ for zippers: consumers use a wide variety of products every day. The legal requirements are just as diverse. There is no such thing as “the” non-food law. Rather, there is a large number of European and national legal regulations that must be observed in the context of product law compliance. For this reason, the term “regulated industries” is used as an umbrella term for the consumer products sector. In particular, the respective requirements for the composition, safety and labelling of the products are regulated. Non-food articles include food contact materials, textiles, cosmetics, toys, personal protective equipment, detergents (incl. washing, cleaning and cleaning agents) and much more.

The general (e.g. German Food and Feed Code (LFGB), German Product Safety Act (ProdSG)) and product-specific regulations (e.g. Regulation (EU) No 10/2011 (Plastics Regulation), Directive 2009/48/EC (Toys Directive)) are often supplemented by regulations from other regulatory areas, e.g. Regulation (EC) No 1907/2006 (REACH Regulation), Regulation (EC) No 1272/2008 (CLP Regulation) and Regulation (EU) No 995/2010 (Timber Trade Regulation).

Food contact materials and articles are products that are intended or are expected to come into contact with food, e.g. food packaging, pots, plates, drinking vessels, cutlery and baking pans. In practice, difficult questions of demarcation from decorative articles often arise. Classification is fundamental to determining the relevant legal regulatory scope. The European Regulation (EC) No 1935/2004 (Framework Regulation) together with the German Food and Feed Code (LFGB) form the basis of any compliant production and marketing of food contact materials and articles. In addition, special material or substance-specific regulations such as those of Regulation (EU) No 10/2011 (Plastics Regulation), Regulation (EC) No 450/2009 (Active and Smart Materials Regulation) and Directive 84/500/EEC (Ceramics Directive) must be observed. In essence, this is about consumer health protection. This is taken into account through specifications on migration behaviour, material prohibitions and restrictions, and through conformity assessment (declarations of conformity) of the individual products. In the event of deviations, a safety and risk assessment must carefully examine whether market-related measures (public product recall/withdrawal) and a RASFF rapid alert are required. The recommendations of the Commodity Commission of the Federal Institute for Risk Assessment (BfR) are of particular importance in this context. There are also clear requirements for labelling and traceability for food contact materials and articles.

The composition and labelling of textiles are subject to special requirements. Textiles that come into contact with the skin (e.g. clothing, bed linen, blankets and towels) are considered consumer goods and are therefore subject to the regulations of the German Food and Feed Code (LFGB). Textiles must also be safe and must not harm the consumer, e.g. through their chemical composition or physical design (cord standard). Regulation (EC) No 1907/2006 (REACH Regulation) also regulates substance restrictions (e.g. for azo dyes/amines). In the event of a deviation, a safety and risk assessment must determine whether market-related measures (public product recall/withdrawal) and a RAPEX rapid alert are necessary. Regulation (EU) No 1007/2011 (Textile Labelling Regulation) lays down specific regulations on the designation and labelling of the fiber composition of textile products.

The broad definition of toys as “all products intended or designed exclusively or non-exclusively for use by persons under 14 years of age for the purpose of play” already suggests that comprehensive protection of a very sensitive consumer group is intended. The question of which product is a toy and which product is not, is a recurring source of debate in practice. The demarcation decision is particularly important in the case of decorative articles, but also in the case of animal toys. Equally decisive is the age classification, i.e. the determination of whether a toy is suitable for children under or over 3 years of age. This also results in detailed specifications, for example, on the prohibition of small parts that can be swallowed or the necessary age warnings. Directive 2009/48/EC (Toy Safety Directive) and the Second Ordinance to the Product Safety Act (Ordinance on the Safety of Toys – 2nd ProdSV) form the core of European and national toy legislation. The DIN EN 71 series of standards is of particular importance. The toy law regulates the physical/mechanical, the chemical, the electrical properties and specifies requirements for hygiene and radioactivity. Regulation (EC) 1907/2006 (REACH Regulation) provides, among other things, for a number of substance prohibitions and restrictions for toys (e.g. for benzene and certain phthalates (plasticisers)). In case of deviation, a safety and risk assessment must determine whether market-related measures (public product recall/withdrawal) and a RAPEX rapid alert are necessary. Toys must be labelled in accordance with the specifications (e.g. CE marking, warnings) and have undergone a conformity assessment procedure (declaration of conformity).

The traditional thinking “If you want to be beautiful, you have to suffer” has long been outdated. Regulation (EC) No 1223/2009 (EC Cosmetics Regulation) is the central provision of European cosmetics law. This area of law is also a source of exciting questions of demarcation, for example, to foodstuffs, medicinal products, medical devices. The EC Cosmetics Regulation sets out requirements for the safety, composition and labelling of cosmetic products. In addition, the general regulations of the German Food and Feed Code (LFGB) apply. In particular, the general prohibition of misleading statements also applies to the marketing of cosmetic products. For the substantiation of advertising claims in connection with cosmetic products, Regulation (EC) No 655/2013 sets out a common criteria.

The Corona virus not only represents a major social challenge, but is also accompanied by a host of constantly evolving legal requirements (e.g. Vaccination Protection Act (IFSG) or state Corona protection regulations), which also affect the retail sector to a large extent. For example, in Germany the Corona regulations require the establishment and maintenance of a hygiene concept. Time and again, the business measures and the fulfillment of tasks are monitored by the authorities, which results in a large number of sanction procedures. Short-term changes in the law lead to far-reaching acute situations, e.g. the question of whether an establishment must close completely or partially. The admissibility of official measures must then ultimately be assessed by the administrative courts. However, the corona pandemic also affects product offerings. For example, the marketing rules and product requirements for FFP-2 masks are regulated in detail in Regulation (EU) No 2016/425 (Personal Protective Equipment Regulation) or for medical masks in Regulation (EU) No 2017/745 (Medical Devices Regulation). The same applies to the marketing and use of Corona rapid tests or disinfectants in accordance with Regulation (EU) No 528/2012 (Regulation on Biocidal Products).


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