Labeling [nano]

Labeling [nano]

By AVICENN Team – Last Modified June 2022

Three categories of products supposed to be labeled “nano”

[Nano] labeling is mandatory in Europe for three categories of products: cosmetics, biocides et food.

[Nano] labeling of cosmetics: mandatory since July 2013

Le Cosmetic Regulationss requires manufacturers to mention the presence of nanomaterials in the list of cosmetic ingredients, with the term “nano” in square brackets, after the name of the ingredient. In the case of TiO₂, we can read for example: Titanium dioxide [nano].

In force since July 2013, this [nano] labeling obligation, applied to a small number of cosmetics, is still very marginally respected by cosmetic brands – sometimes by ignorance of the nano character of their ingredient(s), sometimes by wait-and-see attitude or even in bad faith.

The (nano) labeling of biocides: mandatory since September 2013

Le Biocides Regulation also requires that the label indicate the presence of nanomaterials in biocidal products, with the term “nano” » in parentheses, after the ingredient name.

It also requires that mention be made " the risks specific issues related to it” : this provision constitutes an exception, the labeling obligations in the other sectors being limited to the sole mention of the term “nano”.

However, almost no mention [nano] has been observed on products marketed in Europe since 2013, even before the implementation of non-approval (2021) and/or classification of nano-silver (planned for 2022).

In June 2022, the Directorate General for Competition, Consumer Affairs and Fraud Prevention (DGCCRF) announced that it had conducted a survey in 2021 on so-called “technical” textiles¹See Technical textiles: between innovation and one-upmanship, DGCCRF, June 3, 2022 : two of the six antibacterial or “anti-odour” products analyzed were treated with silver nanoparticles, currently being classified due to their risks… and without this information being brought to the attention of consumers, contrary to what is required by the Biocides regulation. Following the DGCCRF investigation, the two operators marketing these two products withdrew them from the market. To our knowledge, these are the first checks by national public authorities on the presence of biocidal nanoparticles in non-medical textiles.

[Nano] labeling in food: mandatory since December 2014

In food, the INCO Regulation had provided for the obligation to affix on the label the mention “nano” in square brackets, before the ingredient name concerned, from the end of 2014. But pressure from industrial lobbies for a reduction in this obligation has delayed the entry into force of this measure. The obstacle was legally lifted in October 2015, with the vote of the Novel Foods Regulations ("Novel Foods").

However, almost no mention [nano] appears on the ingredient lists of food products sold in supermarkets, as shown by several surveys carried out in France²See in particular:
- Nanoparticles in food: dangerous, useless and uncontrolled, a moratorium is needed!, Acting for the environment, Press kit, June 15, 2016
- Stop nanoparticles, 60 Millions de consommateurs, Monthly – No. 529 – September 2017 (published August 27, 2017)
- Nanoparticles – Beware, they are hiding everywhere!, Que Choisir, Monthly n° 566, February 2018, then abroad (in Germany³See in particular:
- Hintergrundpapier zu den BUND-Tests bei Wrigleys-Kaugummi und Jacobs-Cappuccino-Pulver , BUND (Friends of the Earth Germany), September 2018
- Presence of titanium dioxide in Dr. Oetker products in Germany, Foodwatch, August 2019, in Italy⁴See Nanoparticle di additivi negli alimenti. Chidiamo il bando dell'E171, Altroconsumo, May 2019, in Belgium⁵See “Nanomaterials – Everywhere without us knowing it”, Health Test n°151June 2019 or in Spain⁶See “Comemos nanopartículas sin saberlo”, OCU-Compra Maestra No. 449, July-August 2019).

In 2017 and 2018, the DGCCRF (repression of fraud) revealed the results of its analyses, which confirmed those published by the associations mentioned above: in almost all the food products tested, nanoparticles were detected... without the labeling does not mention [nano]. For its part, the UFC Que Choisir filed complaints with the Paris tribunal de grande instance in February 2018⁷See 9 complaints from UFC-Que Choisir against food and cosmetics manufacturers, What to Choose, January 2018 – still awaiting instruction several years later!

The “nano” labeling obligation is very insufficiently implemented

Of the three sectors concerned by a [nano] labeling obligation, it is the cosmetics sector in which we observe the most [nano] mention – in any case more for sun creams than for make-up products. In fact, the cosmetics sector is not particularly exemplary, far from it: the controls carried out by the associations or the DGCCRF for several years in 2016 show each year that many cosmetics contain nanoparticles but are not labeled [nano].

Note: in the other Member States of the European Union, controls by the public authorities are non-existent.

One of the most frequently cited arguments to justify the absence of labelling? According to the sector considered (cosmetics, biocide, food), the “nanomaterials” to be labeled are not defined in the same way, which can complicate the qualification (“nano” or not) of substances by suppliers who do not always know for which application(s) the substances they sell will be used:

• the definition of the term "nanomaterial" which applies for the "nano" labeling obligation in biocides includes a threshold of 50% of the particles (by number) of which at least one of the external dimensions is between 1 nm and 100nm
• this is not the case for the definitions that apply to cosmetics and food, which do not contain a threshold, but other concepts (such as solubility or bio-persistence for the definition applicable to nanomaterials in cosmetics).

La revision of the European recommendation for the definition of the term “nanomaterial” (implemented in 2022) lead to the harmonization of these definitions in the various community regulations, regardless of the sectors? This objective, legitimate in itself, has been used as an argument by companies or their federations to explain the absence of labelling, on the grounds that the current definitions would be modified following the revision. Many companies have thus played the clock and the wait-and-see card since 2013-2014, by not applying a “nano” labeling obligation, which is nevertheless enshrined in law. They have thus "gained" at least ten years not to label, without this seeming to move the European Commission...

However, some brands are more observant today than ten years ago; the most prudent are not content to ask their suppliers for certificates of the “non-nanometric” nature of the ingredients they buy from them, they also carry out tests on their side.

For the other sectors, the silence of the industrialists prevails

Apart from these obligations imposed by Europe, few indications emanate from manufacturers concerning the presence of nanomaterials in marketed products not covered by the regulations mentioned above, but to which we are nevertheless largely exposed: textiles, detergents, phytosanitary and veterinary products ( including animal feed), paints, toys, medicines and medical devices for example.

There is still a lot of vagueness (even taboo) about their presence, their nature, but also about the risks that are associated with it.

Behind the reluctance of companies to communicate: the concern to protect commercial or industrial secrecy, the fear of seeing consumers turn away from the products concerned⁸See in particular on this subject:
- Linnovation tested against fears and risks, Parliamentary Office for the Evaluation of Scientific and Technological Choices (OPECST), 2012
- - Nanotechnologies – Risks, opportunities or taboo: what communication for European companies?, Novethic, September 2010
- Report of the public meeting of October 27, 2009 du national public debate on nanotechnology : L'Oréal and the Federation of Beauty Industries (FEBEA) underline the "anxiogenic" effect of nano labeling, which "would risk inducing attempts to refuse to buy"
- Nanotechnologies and nanoparticles in food and feed, Afssa (now ANSES), March 2009: "the growing questions at the international level on the risks associated with nanotechnologies have resulted in the disappearance of the reference to these nanotechnologies on certain communication media"and/or the risk of seeing their liability incurred in the event of a problem (which constitutes a risky bet: the strategy of "not seen, not taken" can conversely turn against companies which have seen fit to apply it and who are finally unmasked…).

Those who, on the contrary, bet on the "high tech" and trendy marketing effect of the nano prefix⁹See the actor's notebook of the association Sciences et Démocratie carried out within the framework of the national public debate on nanotechnology 2010 are rather the exception that proves the rule. Especially since these are, in some cases, products that do not necessarily contain more nanomaterials than others¹⁰For example, Ipod-Nano (digital walkmans), Tata Nano (cars) or Franprix convenience stores, Bultex Nano mattresses, Kelloggs chocolate cereal mini packs, …!).

Difficult, under these conditions, to have a precise idea of ​​the consumer products marketed which contain nanomaterials : None inventories of nano-products exist, but their reliability is limited.

Towards a generalization of the [nano] labeling obligation?

The 4th national environmental health plan (PNSE 4) French, published in 2021, plans to “bring to European level the implementation of labeling of the presence of nanomaterials on consumer products which are not yet subject to this obligation, in particular for objects in contact with the body”. There is indeed a need for better information concerning the presence of nanomaterials in the products around us.

A strong expectation from society

The labeling of nanomaterials in consumer products has been demanded by many players aware of nanomaterials for more than fifteen years now:

Necessary but not sufficient labeling

Labeling should not lead manufacturers or public authorities to discharge the consumer of all responsibility.
According to jurist Stéphanie Lacour, “ providing the public with satisfactory information on nanotechnologies, the risks they are likely to induce and the composition of the products to which they are exposed in order to enable them to make, individually and collectively, the most relevant choices is a laudable objective and responds to an indisputable social demand. Since the risks associated with nanomaterials remain, for the most part, uncertain, the implementation of labeling obligations does not, however, constitute, in itself, a relevant tool.. “It must be, according to the lawyer, “properly integrated into a more global management of emerging risks – ranging from the adoption of upstream precautionary measures to transparent procedures when placing products on the market and the implementation of shared vigilance obligations« ²¹See The ins and outs of labeling nano-products, Stéphanie Lacour, Scientific Watch Bulletin, ANSES 2011.
On France Culture in 2014²²See Are nanos toxic?, program Science publique, France Culture, June 20, 2014, Stéphanie Lacour warned again that labeling alone, if not accompanied by other measures, would amount to "Making the consumer bear the responsibility for a choice that the manufacturer has made for him upstream or that the public authorities refuse to make in favor or against the marketing of a certain number of products".
During the same broadcast, Roger Lenglet, author of the book Nanotoxics hit the nail on the head: “We are completely out of democracy, on a public health problem where the scandal is already constituted since we have put on the market, once again, things that we have not sufficiently tested and when we all had clues to beware. We are in a situation where labeling is really the minimum! »

Business-to-business traceability (labeling called "B2B" for "Business to Business") is more necessary than ever to guarantee the sincerity of labeling towards consumers ("B2C" for "Business to Consumers")²³See "The challenges of labeling consumer products containing nano-objects", Françoise Roure, presentation to AFNOR, June 5, 2014.

→ If labeling is necessary, there is today a quasi-consensus on the fact that it must be supplemented by other actions of information, traceability and supervision, such as:

• safety data sheets (FDS), the environmental and health declaration sheets (FEDS)
• prior registration for marketing authorization (theoretically compulsory for biocides, cosmetics andfood, even if practice shows that this is not the case in reality)
• the statement in REACH, in the French R-nano register (which needs to be improved and made less opaque) and the others national registers who should be extended across Europe (before being, ideally, on an international scale, globalization of exchanges obliges…)

For all practical purposes, the DGCCRF and the ANSM also recalled, in July 2021, that the article 1112-1 of the civil code establishes a general obligation of information of the seller with regard to the buyer and provides that the first must inform the second of any "information whose importance is decisive for the consent" of the latter. According to the public authorities, the data transmitted by the supplier should therefore be accompanied by all the relevant data obtained through reliable methods suitable for the characterization of nanomaterials.²⁴See Information note for the application of the definition of nanomaterials in the context of Regulation (EC) No 1223/2009 on cosmetic products, DGCCRF & ANSM, July 5, 2021.

NB: The National Consumer Institute (INC) had proposed in 2009 a arsenal of concrete but relatively heavy measures which are not all implemented today but nevertheless remain completely relevant:

• obligation for those responsible for placing products containing nanomaterials on the market to provide the information to a reference organization (this recommendation is partially implemented via the R-nano register),
• implementation of a systematic procedure for transparent consumer information on the product and its benefit/risk ratio,
• creation of databases accessible to the general public of information on the products concerned,
• creation of a structure whose mission is to deal with complaints relating to the non-communication of information or the inadequacy of this information in relation to the information systems defined jointly by the actors (this joint structure would be made up of representatives of consumers, manufacturers and distributors of products containing nanomaterials; to facilitate consumer access to this structure, a single entry point must be provided).