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November 24, 2014

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How Plausible Is Labelling Cosmetics Red or Green?


- Sneha V. Prabhu Chodnekar, [ ]

Sneha V. Prabhu Chodnekar

In a Scenario where many raw materials used in cosmetics and toiletries undergo a slew of iterations till they lose their original identity, it would be very difficult to affix labels as to whether they were animal-based or plant-based in the first place.

Expecting manufacturers to affix Veg/Non-Veg symbols is arbitrary, onerous and bound to adversely impact the beauty and hygiene consumer product industry

India has a history
of vegetarianism that goes well beyond specific food practices in regional communities. But today, opportunities for Indians to experience different cultures are growing. In particular, the middle class in India is growing and due to its growing purchasing power, consumption of meat, fish and other animal derivatives is on the rise. In this changing scenario, a few segments of Indian society and certain Non-Government Organisations have initiated the 'vegetarianism' drive to encompass more than just food consumption habits, be it on religious grounds or to prevent cruelty to animals. These groups continued approaching the courts as well as the Government of India several times. The Government of India through its Department of Consumer Affairs, finally succumbed to such pressures and issued a Notification dated 16th June, 2014 being the Legal Metrology (Packaged Commodities) (Amendment) Rules, 2014 and brought into force the same with effect from 1st July, 2014 in a hurried manner, keeping aside established principles of making subordinate legislation.

The moot question is (due to the above mentioned action of the Government), whether, such a law that makes it mandatory for affixing Veg/Non-veg symbols on Cosmetics, Toiletries and Drugs, really plausible?

Symbols in reference to India

Veg/Non-veg symbols

Background:


In the year 1999, a proposal was made before the Drug Technical Advisory Board (a Committee constituted under the Drugs and Cosmetics Act, 1940) to amend the Drugs and Cosmetics Rules, 1945, to include the requirement of mentioning words such as "V (vegetarian) and NV (non vegetarian)" on the labels of drugs/cosmetics. However, the said proposal was rejected by the Board. Eventually, in 2001, a Government Notification by the Ministry of Health and Family Welfare, made it mandatory for "packaged food manufacturers" to affix Veg/Non-veg symbols consisting of a square with dot within in green/brown and it was made part of the erstwhile (now repealed) Prevention of Food Adulteration Act and Rules replaced by the Food Safety Standards Act and Rules.

In the year 2001, a Public Interest Litigation (PIL) was filed before the Hon'ble High Court of Delhi seeking directions against the manufacturers/packers of 'cosmetics' or 'food' or 'drugs' to declare the ingredients made or derived from animals and affix symbols indicating use of animal-based ingredients. The Hon’ble High Court on 13th November, 2002, citing Article 19(1)(a) - The right to know, Article 21 - the right to life and Article 25 - the freedom of conscience and the right to profess a religion, of the Indian Constitution, held that manufacturers and packers of cosmetics, drugs and articles of food are required to make complete and full disclosure of the ingredients of their products and should bear an easily identifiable symbol conveying that it has an animal origin ingredient. Apart from red and green symbols, the high court had also directed a declaration in writing on the package indicating the nature of the origin of raw materials in the products. The order of the Delhi High Court, however exempted life-saving drugs as labelling for medicines as impractical on grounds that medicines are not a choice of the consumer, unlike food articles and cosmetics.

The Central Government approached the Supreme Court in an appeal against the said judgement of the Hon'ble Delhi High Court and the members of industry through Indian Soaps and Toiletries Makers Association (now known as the Indian Beauty & Hygiene Association ("IBHA")) made an intervention in the said appeal.

Overruling the Hon’ble Delhi High Court's order dated 13th November, 2002, the Hon'ble Supreme Court on 7 March, 2013, held that the Hon'ble Delhi High Court had no jurisdiction to issue such directions and it was the Central Government which in consultation with the Drug Technical Advisory board that was empowered to decide whether any amendment was to be made to the relevant Rules showing the ingredients of vegetarian or non-vegetarian origin or providing a symbol. The Hon'ble Supreme Court also referred to the decision of the Board in its 48th meeting on 8th July, 1999 which rejected such suggestion.

Current Scenario:


The Hon’ble High Court on 13th November, 2002, citing Article 19(1)(a) - The right to know, Article 21 - the right to life and Article 25 - the freedom of conscience and the right to profess a religion, of the Indian Constitution, held that manufacturers and packers of cosmetics, drugs and articles of food are required to make complete and full disclosure of the ingredients of their products and should bear an easily identifiable symbol conveying that it has an animal origin ingredient.

Without exactly following what the judgment of the Hon'ble Supreme Court laid out, the Government of India through the Department of Consumer Affairs issued a Notification dated 16th June, 2014 being the Legal Metrology (Packaged Commodities) (Amendment) Rules, 2014 to come into force with effect from 1st July 2014, providing the following amendments:

"2. In the Legal Metrology (Packaged Commodities) Rules 201, in rule 6, after sub-rule (7), the following shall be inserted, namely:-

(8) Every package containing soap, shampoos, toothpastes and other cosmetics and toiletries shall bear at the top of its principal display panel a red or as the case may be, brown dot for products of non-vegetarian origin and a green dot products of vegetarian origin".

The Central Government’s hasty decision to see through implementation and issue the above referred notification smacks of arbitrary exercise of power, gives a complete go-by to established principles of subordinate legislation making and such act is not being mindful of the relevant legislation for cosmetics i.e. the procedure of labelling laid down under the Drugs and Cosmetics Act 1945 and Rules.

The new amendment in the Packaged Commodities Rules 2011 is bound to create chaos in the Industry.

The notification referred above needs to be reconsidered on the following grounds:

1. Cosmetics and Food cannot be treated on par.

Words "vegetarian" and "non-vegetarian" as defined in any dictionary relates to the act of eating especially for moral, religious, or health reasons. The rationale that cosmetics and toilet preparations such as soaps are items that people use on their bodies, lips and that the ingredients used might be objectionable to many on grounds of vegetarianism or religious sentiments cannot be applied to cosmetics on account that cosmetics are not for oral consumption but for external application.

Many of the raw materials used in cosmetics go through various processes and eventually lose their original identity. In such a scenario, it is very difficult to identify whether the origin of such raw materials is animal based or plant based. Further, there is no technology available, to make such an identification. The requirement of affixing symbols on labels would be impractical and would lead to chaos and confusion, in the absence of any such technology being available. For instance, oil, fats and waxes are few of the main ingredients in the cosmetic and used in preparation of creams, lotions, brilliantine, hair oil, lipsticks etc. The source of oil, fat and wax can be mineral source & animal source.

A possibility of cosmetics with animal origin ingredients carrying vegetarian symbol or vice versa cannot be refuted as traceability of origin of such ingredients cannot be established by any scientifically proven technology. In the event of such a happening, the very purpose of depiction of either logo red or green will be defeated.

Ingredients such as honey, bees wax, silk essence, milk and the like are all of animal origin.

The question here is, would all the cosmetics manufactured with a base of such ingredients be considered of non-vegetarian origin?

Apart from cosmetics, drugs and toiletries, there are various other products which contain ingredients which originate from animals, for e.g. shoes, belts, garments, fabrics, wallets, fertilisers, lubricants, paint brushes etc. Application of the said notification to these products has been completely ignored in the hasty implementation of the said Notification. Non application of the recent notification to these consumer products of everyday use and singling out cosmetics is arbitrary, and discriminatory.

2. Cosmetic products are a complex mixture of compounds and the formulations contain many ingredients hence it is impossible to identify the vegetarian and/or non-vegetarian origin of the ingredients in cosmetics.

There are as many as 66 dosage forms in cosmetic formulations as listed in one of the standard reference books- 'The Chemistry & Manufacture of Cosmetics by Maisonde Navaree, Allured Publishing'. Schedule S of Drugs & Cosmetics Act recognises 29 of such types of cosmetics. Each type of formulation has a wide choice of 12,000 ingredients approved by the Personal Care Products Council (formerly known as CTFA) directory of ingredients and are safe for use in cosmetic products. Ref.:www.personalcarecouncil.org;

Many of these ingredients are prepared by processes involving multiple processes, irrespective of whether the origin is a plant or an animal. Thus, the original identity of the ingredient is lost. Hence, even if the final ingredient in the formulation would have animal origins initially, it would be incorrect to call it non-veg. For e.g. the basic source key ingredients in cosmetic formulations such as stearic acid or cetyl alcohol is oil which either originates from a Synthetic, plant, animal or Spermaceti (fatty substance derived from animal). The oil is first split and then distilled, fractionated & hydrogenated to get the acid and then oxidised to get the alcohol. As tracing back the origin of certain ingredients is not possible, accuracy of affixing veg/non-veg logo on final products of cosmetics will be difficult, even if made mandatory under the law.

For instance, a perfume is a component of cosmetic preparation. All the perfumes have patented formula and have mixtures of several ingredients. For e.g. a natural base perfume can be of plant or animal origin and also colours used in perfumes can be of plant or animal base. As per the requirement of INCI, these ingredients are purified several times and during this process, these ingredients lose their original properties making it difficult to trace back its originality.

Under such scenario, the manufacturers would have to completely rely solely on representations made by its suppliers for the purposes of affixing the symbol of veg/non-veg on the cosmetics. It is therefore impossible for a manufacturer to be aware and comply with the labelling requirements.

3. The list of Ingredients on cosmetics or drugs is a requirement under the Drugs and Cosmetics Act 1940 and not under the Legal Metrology Act and Rules.

The requirements of labelling of cosmetics are governed by Rule 6 of the Legal Metrology (Packaged Commodity) Rules 2011 and Drugs and Cosmetics Act 1940. However, the requirement of specifying ingredients on cosmetics is mandatory only under the Drugs and Cosmetics Act 1940 and Legal Metrology Act or Rules are completely silent on the same. The Government has also conveniently ignored that Rule 6 of the Legal Metrology (Packaged Commodity) Rules 2011 mentions that "for packages containing cosmetic products, the provisions of the Drugs and Cosmetics Rules, 1945 shall apply".

The legislative intent and understanding is clear that the packaging and labelling of cosmetics will throughout be governed by the Drugs and Cosmetics Act, 1940 and the rules made thereunder and not by Legal Metrology Act and Rules made thereafter.

4. Notification has been issued without seeking comments from the public and stakeholders.

The Ministry of Law and Justice, Legislative Department D.O. letter No. 11(35)/2013-L.1 dated 5th February 2014 makes it mandatory for the concerned Department/Ministry to seek Public comments and objections and pre-legislative consultation on the subject of policies. The Government has completely ignored the said Letter of the Ministry of Law and Justice.

In the past, Government's practice has always been to put any proposed policy changes in the public domain for comments/concerns/objects from the public and relevant stakeholders before passing the policy/changes/amendment, the most recent examples being the Companies Act 2013 and Consumer Protection (Amendment) Act 2014.

The Central Government ought to have given an opportunity to public and the relevant stakeholders for their comments/views so that all relevant considerations are taken into account.

5. Exemption under Rule 26 of the Packaged Commodities Rules applicable to small volume packs has been ignored.

The Rule 26 of the Packaged Commodities Rules exempts any product below 10g or 10ml in volume to make label disclosures required under said Legal Metrology (Packaged Commodities) Rules, 2011 including the disclosures under the Rule 6. As a result, cosmetics such as lipsticks, lip balms, nail paints, etc. which weigh less than 10g or 10ml, fall within this exemption under Rule 26 and would not be required to give the Rule 6 or any other declarations under the said notification. This clearly shows the non-application of mind by the authorities in passing this amendment.

Conclusion:

This mandatory declaration of green / brown dot on cosmetic products to signify vegetarian / animal origin is bound to impact the entire beauty and hygiene consumer product industry. It is arbitrary and onerous to expect the manufacturers/packers of cosmetics to affix the symbol of veg/non-veg on final products.

It is learnt that the industry having been left with no other options, has resorted to tap the doors of justice due to the Government's action.

On 9th September, 2014, the Hon'ble Bombay High Court stayed the operation of this controversial notification, with a notice to the Government to respond.

Round two of the legal battle on this issue has begun. Let's wait to see what's in store!

Disclaimer - The views mentioned here are personal views and not of the company

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