The European recommendation that shaped the label, and why it is not a law

One document behind most of the label

If you look at a British sun protection pack and ask where each element comes from, an unusual proportion of the answers point to the same source: a European Commission recommendation issued in 2006 on the efficacy of sunscreen products and the claims made relating to them.

From it come the four protection categories, the recommended set of printed figures, the practice of rounding down, the cap at 50 plus, the recommended relationship between ultraviolet A protection and the labelled factor, the critical wavelength criterion, the circled ultraviolet A mark and a list of claims that should not be made, including wording implying total protection and wording implying protection for a whole day.

That is close to the whole visual grammar of a sun protection pack. It comes from a document that creates no legal obligation.

What a recommendation is

In the hierarchy of European instruments, a regulation binds directly, a directive binds as to the result to be achieved, and a recommendation does neither. It sets out what the Commission considers member states and industry should do.

The recommendation on sunscreen efficacy claims is therefore advisory in form. It does not create an offence, it does not itself make any wording unlawful, and a product departing from it is not automatically in breach of anything.

This surprises people who have read that a particular claim is banned, and it is worth being precise rather than repeating a simplification. Wording such as sunblock is not prohibited by a named prohibition. What happens is that the recommendation identifies it as a claim that should not be made, and the general obligations that do bind, the requirement that claims be truthful and supported and the requirement that advertising not mislead, make it indefensible in practice.

Why it works anyway

Three mechanisms give an advisory document practical force, and they are worth naming because they explain a great deal about how this field operates.

It supplies the standard against which general obligations are judged. When an enforcement body or an advertising regulator asks whether a claim is misleading, the recommendation is the reference point for what the industry accepts as accurate.

It creates a common vocabulary. Once every manufacturer uses the same four categories, the same permitted figures and the same mark, a business departing from them is visibly departing, and has to explain why.

It is embedded in the supply chain. Testing houses report against it, artwork templates assume it, retailers require it and trade associations promote it. By the time a product reaches a shelf, compliance with the recommendation has been assumed at every step.

Its status in the United Kingdom now

Following the United Kingdom's departure from the European Union, the substantive cosmetics regulation was retained in domestic law, and the enforcement regime continues under the Cosmetic Products Enforcement Regulations 2013. The recommendation, being advisory, was never a binding instrument to retain.

Its practical role has not changed. The categories, the figures, the cap and the circled mark remain in universal use on British packs, because they are what the market, the testing infrastructure and consumers now expect, and because departing from them would raise exactly the question the recommendation exists to answer.

Divergence is possible in principle. It has not happened in practice, and there is no obvious pressure for it, because the arrangement works and because packs move across borders.

The list of claims that should not be made

The part of the recommendation that this publication returns to most often is its treatment of claims. It identifies categories of wording that should not be used because they attribute properties the product does not have.

Two families dominate. Wording conveying total protection, of which sunblock and total protection are the clearest examples, is addressed because no product blocks all ultraviolet radiation. Wording conveying that no reapplication is necessary, whatever the circumstances, is addressed because it discourages the behaviour that most affects delivered protection.

The rulings on those phrases are set out in the ruling on sunblock and in all day protection and once a day claims.

What the recommendation does not do

It does not define broad spectrum, which is why that phrase has no fixed meaning here. It does not set the star rating, which is a separate proprietary system. It does not require the absolute ultraviolet A protection factor to be printed. It does not address environmental claims, which fall under consumer protection rules instead. And it does not tell a reader anything, because it is addressed to member states and industry rather than to consumers.

That last point is the recurring theme. A well designed instrument produced a pack that communicates efficiently to people who already know what the elements mean, and communicates a good deal less to everybody else.

Why an advisory instrument was the right tool

It is worth pausing on why the Commission chose a recommendation rather than proposing binding rules, because the choice looks odd until the alternative is considered.

Binding labelling rules would have had to fix a test method in legislation. Test methods for sun protection have been revised repeatedly since 2006, as measurement improved and as the ultraviolet A determination matured. Legislation that named a method would either have frozen the science or required amendment each time the science moved, and amendment of binding instruments is slow.

A recommendation avoids that by describing what the labelling should communicate and leaving the methods to the standards bodies, which revise on their own cycle. The binding requirements stay general, the technical detail stays in documents designed to be revised, and the two are connected by a convention that everybody follows.

The cost of that elegance is legibility. A reader looking at a pack cannot tell which elements are legal requirements, which are conventions from an advisory document and which are voluntary proprietary systems, and nothing on the pack distinguishes them. That is the price paid for a system that can keep up with its own measurement science.

Reading a pack with this in mind

The useful reframing is that most of the label is a convention rather than a legal requirement, and conventions are worth knowing precisely because they are followed universally. When every product on a shelf follows the same convention, a departure carries information.

A pack with a factor that is not one of the recommended figures, a category word that does not match its figure, or a claim from the list of wording that should not be used, is telling you something about the care taken with it.

What the recommendation did not anticipate

A document written in 2006 addressed the pack as it then existed. Two things have changed around it, and neither is covered.

The first is that most sun protection copy now reaches consumers through channels the recommendation does not contemplate: marketplace listings, search results, category pages, feeds and creator content. The convention governs artwork. It does not govern the words a retailer types into a listing field, which is where the discouraged vocabulary has migrated.

The second is that environmental claims have become a substantial part of sun protection marketing, and the recommendation says nothing about them. That subject is governed instead by consumer protection law and by the Green Claims Code, which arrived from a different direction entirely and applies to every category rather than to this one.

Neither is a criticism of a document that has aged unusually well. It is a reminder that the elegant fit between a convention and a pack does not extend to everything that now describes the product, and that a business auditing its claims cannot stop at the artwork.

What to take from this

The categories, the figures, the cap, the mark and the discouraged claims all come from an advisory document. Its force comes from universal adoption and from the binding general obligations it helps to interpret, which is a more interesting relationship than a rule and a penalty.