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March 29, 2018

EC Ombudsman Issues Recommendation in Case Regarding Lack of Access to Catalog of Nanomaterials Used in Cosmetics

Lynn L. Bergeson Carla N. Hutton

On March 13, 2018, the European Commission (EC) Ombudsman issued its recommendation in a case concerning the EC’s refusal to grant access to its catalog of nanomaterials used in cosmetics, as well as to related notification from cosmetics manufacturers.  As reported in our August 8, 2017, blog item, ClientEarth announced on July 31, 2017, that it filed a complaint with the Ombudsman about the EC’s “unlawful handling of a long-delayed list of nano-chemicals in cosmetics.”  As reported in our June 19, 2017, blog item, the EC published on June 15, 2017, a catalog of nanomaterials used in cosmetic products on the European Union (EU) market.  ClientEarth criticized the catalog, stating that it “does not let people identify which cosmetics contain potentially harmful nanomaterials, or assess the threat they may pose to human health.”  ClientEarth called on the EC Ombudsman to “open an investigation into these acts of maladministration and hold the Commission to account for frustrating consumers’ and civil society’s rights to know about the risks of products people use every day.”

The EC Ombudsman found that while the final version of the catalog had not been published when the complainant made its access request, the EC failed to consult ClientEarth as to whether it would want access to any of the existing draft versions.  The Ombudsman states that “[t]his constituted maladministration.”  The Ombudsman also found that some of the notifications could have been extracted from the EC’s database.  Concerning the other notifications, according to the Ombudsman, the EC failed to look for a solution in consultation with ClientEarth.  “These failures also constituted maladministration.”  The EC Ombudsman recommends that the EC “grant the complainant access to those notifications that can be extracted from its database and that it [try] to find a solution regarding the others.”  As the catalog of nanomaterials used in cosmetics has been published, “the Ombudsman does not consider it necessary to recommend the disclosure of any drafts.”  ClientEarth’s March 23, 2018, press release states:  “We welcome this support from the European Ombudsman and expect the Commission to fully comply with the recommendations and restore trust.”  The EC’s opinion on the Ombudsman’s recommendation is due June 15, 2018.