You can view it as an interesting legal issue, but, from a manufacturer’s perspective, including French-language ingredients on cosmetics labels is nothing but a pain in the butt.
The issue is whether a cosmetic product that complies with the yet-to-be-law mandatory ingredient disclosures violates the Quebec Charter of the French Language (the ‘Charter’).
Health Canada has released its proposal for mandating ingredient listings on the outer labels of cosmetic products. The ingredients must be listed in a language known as INCI – the International Nomenclature Cosmetic Ingredient – that is considered multilingual and multinational and is based on Latin chemical names of ingredients.
The proposed legislation, which will amend the Cosmetic Regulations, is expected to be published in Canada Gazette Part I in December of this year. Gazette I calls for public comment before a regulation is passed into law. Once it becomes law (likely sometime in 2004), it will provide a two-year transitional period for manufacturers to achieve compliance. INCI has already been adopted in the United States and in the European Union.
In the view of the Office québécois de la langue française, the fact that the mandatory labelling is in Latin is irrelevant. Under section 51 of the Charter, all information that appears on a product label in a language other than French must also appear in French and the French wording must be at least as prominent as the other language.
As a result, if a label complies with the proposed federal law but does not include the French translation of the Latin chemical names, it will be in violation of the Charter. As we understand it, this is the Office’s position notwithstanding that the federal draft legislation contemplates that if a manufacturer chooses to use the English version of a ‘trivial name’ (which is given in the INCI dicitionary in Latin or English for certain compounds), that term must also be translated in French. Still this is not enough for the Office.
In the past six months, the Office has been on a rampage going after various cosmetic companies that are already using INCI ingredient labelling and warning retailers against carrying such products, as under the Charter retailers can be charged for selling non-compliant products. (Note that the Office tends to go after industry sectors on a rotational basis – so just because your products haven’t been targeted yet does not mean they are safe.)
The Canadian Cosmetic Toiletry and Fragrance Association (CCTFA) has been working diligently to get the Office to change its position and successfully obtained a ceasefire under which the Office has agreed not to send any complaints up to the attorney general for potential prosecution until Oct. 1. By the time this column goes to press, we will have a better idea of what the Office’s next steps will be.
This recent attack on cosmetic companies is particularly frustrating because the Quebec government has taken the position that it will not consider the issue (which would require an amendment to its Charter) until the federal legislation has at least been published in Canada Gazette Part I.
As a result, the CCTFA is encouraging Health Canada to push for publication as soon as possible. Even still, a change in the Charter would have to go through the Quebec legislative process and could take years. In the meantime, companies that are compliant with the federal legislation would be offside the Charter unless a moratorium on enforcement against cosmetic manufacturers is issued.
The idea behind requiring ingredient disclosure on cosmetics is to allow people with allergies to be aware of the contents of the product and if an allergy occurs for people to know the possible source of the reaction. The INCI dictionary also allows for consistency in describing chemical compounds that can accurately be referred to using various nomenclature. I am willing to bet that most people do not understand the Latin terminology in INCI. But if you had an allergic reaction, you’d certainly be able to remember the chemical compound name to stay away from, whether buying cosmetics in Canada, the U.S. or the E.U. It’s a useful tool for the purpose for which it was designed.
If the purpose of the Charter is to protect the French language (which on some level I believe is laudable), will the use of Latin to list ingredients on cosmetic products really diminish that goal? Will French-speaking Quebecois lose out on their language rights because they are not offered the French names for the chemical compounds? Clearly, Health Canada does not think so, nor does it appear to think that any Canadians require that the ingredients be provided in either official language.
And bilingual ingredient labelling is commercially impracticable given the sizing of many cosmetic products. I think INCI is actually a good compromise – it’s in no one’s language and therefore shouldn’t offend either of our two founding cultures.
But if the Quebec government uses this issue to try to prove to the French-speaking majority that the Liberals really do care about protecting their language and culture, the Quebec marketplace might notice a distinct drop in the availability of cosmetic products.
Shelley Samel is an advertising and marketing lawyer at Gowling Lafleur Henderson LLP in Toronto. She can be reached at shelley.samel@gowlings.com.
