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5.2 Sectoral Labelling, Packaging and Marking Requirements

5.2.1 CE Marking

The CE marking symbolises the conformity of the product with the applicable Community requirements imposed on the manufacturer. This requirements emanate from a number of product safety directives, including the Directive on general product safety, the EMC Directive, the low voltage Directive and the Directive on toys (all these have been dealt with in this Business Guide). There is no equivalent of the CE marking at only national level, as the CE marking applies throughout the Community in a fully harmonised manner.

The CE marking is mandatory and must be affixed before any product subject to it is placed on the market and put into service (save where specific directives require otherwise). Where products are subject to several directives, which all provide for the affixing of the CE marking, the marking indicates that the products are presumed to conform to the provisions all these directives.

A product may not be CE marked, unless it is covered by a directive providing for its affixing. The obligation to affix the CE marking extends to all products within the scope of directives providing for its affixing, and which are intended for the Community market. Thus, the CE marking must be affixed:

  • to all new products, whether manufactured in the Member States or in third countries;
  • to used and second-hand products imported from third countries; and
  • to substantially modified products that are subject to directives as new products.

The manufacturer, whether established inside or outside the Community, is the person ultimately responsible for the conformity of the product with the provisions of the relevant directive and for the affixing of the CE marking. The manufacturer may appoint an authorised representative established in the Community to act on his behalf. The person responsible for placing the product on the market may, exceptionally, be deemed to have assumed the responsibilities of the manufacturer.

The CE marking shall, as a rule, be affixed to the product or to its data plate. In addition, it can be affixed, for instance, to the packaging or to the accompanying documents. However, it may exceptionally be moved from the product or its data plate if this rule cannot be followed. This would be justified where affixing it to the product was impossible (for example on certain types of explosives), or not possible under reasonable technical or economic conditions, or where the minimum dimensions could not be respected, or it could not be ensured that the CE marking was visibly, legibly and indelibly affixed. In such cases, the CE marking has to be affixed to the packaging, if it exits, and to the accompanying document, where the directive concerned provides for such documents the CE marking on the product may neither be omitted nor be moved to the packaging or accompanying documents on purely aesthetic grounds.[56]

5.2.2 Origin Marking

Hong Kong traders familiar with the EU market will know that, generally speaking, there is no EU law requiring commonly used consumer (non-edible) goods to bear marks indicating their origin[57], nor is there a law preventing voluntary origin marking where traders wish to do so. However, in the event that such marks are applied to goods, the competent authorities of the Member States will require these marks to be accurate. It is, indeed, considered an offence for a supplier to apply false or misleading descriptions to goods, including as regards their origin.

Some Member States and some sectors (particularly those of interest to mainland traders) have nonetheless been pushing the European Commission to introduce a proposal for EU-wide legislation, which would make origin marking (“made in [...]”) compulsory for at least some commonly sold products, including textiles and footwear.

The Commission has, accordingly, presented a proposal on 16 December 2005, for a Council Regulation on the indication of the country of origin of certain products imported from third countries. The proposed Regulation applies to the categories of product laid down in its Annex (reproduced in the table below), if these are manufactured outside the EEA (EU plus Norway, Iceland and Liechtenstein), Bulgaria, Romania and Turkey. In consequence, Hong Kong and Chinese mainland goods are covered.

Goods that require origin marking may nonetheless be exempt where, for technical or commercial reasons it appears impossible to mark them. It should be kept in mind that the terms “origin” and “originating” refer to non-preferential origin in accordance with the Community Customs Code. Furthermore, the proposed Regulation will not apply to goods of a non-commercial nature contained in travellers’ personal luggage.

The proposed Regulation requires that the country of origin must be marked on the goods covered by it, and where they are packaged then the marking shall be made separately on the package. The words “made in [country-of-origin]” will have to appear in an official language of the EU which is easily understood by final customers of the Member State in which the products are to be marketed. The marking has to be clearly legible and indelible; must be visible during normal handling; markedly distinct from other information; and not be misleading. Furthermore, the Commission will be given the power to adopt implementing measures which could further determine other details of origin marking; establish a list of commonly used terms or abbreviations; and establish for which goods marking is not needed.

The proposal states that the Regulation will enter into force at the EU level on the twentieth day following its publication in the Official Journal. As for the actual marking requirements, these will have to be implemented by producers 12 months after entry into force of the Regulation, subject to the Commission extending this period, in case it comes up with further implementing measures which will then provide producers with more time for compliance.

The Annex to the Proposed Regulation

CN Code

Description

4104 41 / 4104 49 / 4105 30 / 4106 22 / 4106 32 / 4106 40 / 4106 92 / 4107 to 4114 / 4302 13 / ex4302 19 (35, 80)

Crust & Finished Leather

4008 21 / 4008 11 / 4005 99 / 4204 / 4302 30 (25, 31)

8308 10(00) / 8308 90(00) /

9401 90 / 9403 90

Heels, Soles, Bands, Parts, synthetics, others

4201 / 4202 / 4203 / 4204/ 4205 / 4206

Saddlery and harness, travel goods, handbags and similar containers, articles of animal gut (other than silkworm gut)

4303 / 4304

Articles of apparel, clothing accessories and other articles of furskin, artificial fur and articles thereof

CN Chapter 50 – 63

Textiles and textile articles

6401 / 6402 / 6403 / 6404 / 6405 / 6406

Footwear, gaiters and the like

6907 / 6908 / 6911 / 6912 / 6913 / 691490100

Ceramic products

7013 21 11 / 7013 21 19 / 7013 21 91 /

7013 21 99 /

7013 31 10 / 7013 31 90 /

7013 91 10 / 7013 91 90

Glassware of kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than headings 7010 or 7018) of lead crystal .

7113 / 7114 / 7115 / 7116

Articles of jewellery and parts thereof, of precious metal or of metal clad with precious metal, Articles of goldsmiths’ or silversmiths’ wares and parts thereof, of precious metal or of metal clad with precious, Other articles of precious metal clad with precious metal, Articles of natural or cultured pearls, precious or semi-precious stones (natural, synthetic or reconstructed)

CN Chapter 94

Furniture, bedding, mattresses, cushions, lamps and lighting fittings, illuminated signs and the like, prefabricate buildings.

9603

Brooms, brushes (including brushes constituting parts of machines, appliances or vehicles), hand-operated mechanical floor sweepers, not motorised, mops and feather dusters; prepared knots and tufts for broom or brush making; paint pads and rollers; squeegees (other than roller squeegees)

On 21 October 2010, the EU came closer to the adoption of the origin labelling law. The European Parliament voted in support of the abovementioned Commission proposal. The key provisions and amendments being sought are listed below:

  • The European Parliament has voted for products that are destined for the end consumer (thus not, e.g., components for only industry use) to be covered by the future Regulation, broadly accepting the Commission’s 2005 proposal.
  • The European Parliament wants screws, nuts, bolts and similar articles added to the above list, as well as tools and implements falling within chapter 82 of the Combined Nomenclature.
  • All such goods imported from outside the EU will have to be origin marked, although goods originating in Norway, Liechtenstein and Iceland, as well as Turkey, are exempt, as are goods whose marking is seen as impossible due to technical reasons.
  • The country of origin will have to be marked on the goods, and in the case where packaging is used, then also on the packaging. What may come as some relief for Hong Kong traders is that Made in + name of country may be in any of the EU’s official languages, or else the English language. Being allowed to use only English for pan-European sales will save costs for Hong Kong and mainland Chinese exporters.
  • The European Parliament also wants to see a harmonised penalty system in place, in order to prevent errant exporters from targeting national markets which have the lowest penalties.

Member States’ customs authorities will be able to perform border checks and controls on the correct implementation of the future Regulation. this should, the European Parliament hopes, increase the withdrawal of counterfeit products entering the EU and could enhance the discovery of unsafe products that breach the EU’s environmental and product safety laws. Furthermore, according to the Parliament, it will enable consumers to identify products with the social, environmental and safety standards that are generally associated with the country of origin, and make their purchasing decisions accordingly.

The Commission’s proposal has to be voted in by the Council of the EU before it can become law.

5.2.3 General Product Safety (Directive 2001/95/EC)

The General Product Safety Directive (GPSD) is complementary to specific product safety legislation. Where consumer products are covered by sector-specific legislation (e.g. toys), those provisions take priority over the general provisions of the GPSD (in accordance with the lex specialis principle).

The relevant provision of the GPSD for the purposes of comparison with the labelling, packaging and marking requirements contained within certain sector specific legislation is Article 5(1). This Article obliges producers to provide consumers with relevant information on the risks inherent in a product, where such risks are not immediately obvious without adequate warnings. The objective is to enable consumers to assess these risks and to take precautions against them.

Three sectors which are of particular interest to Hong Kong businesses will now be examined.

5.2.4 The Safety of Toys (Directive 88/378/EEC)

Directive 88/378/EEC, published on 7 June 1988 and as amended by Directive 93/68/EC, contains specific provisions on the labelling, marking and packaging of toys. Thus, these sector specific provisions take precedence over Article 5(1) of the GPSD.

Article 3 of the Toys Directive obliges Member States to take all steps necessary to ensure that toys cannot be placed on the market unless they meet the essential safety requirements set out in Annex II to the Directive. Annex II contains the “essential safety requirements for toys” and includes requirements in relation to, among others:

  • the physical and mechanical properties of toys;
  • the flammability of toys;
  • the chemical properties of toys; and
  • the electrical properties of toys.

Of more importance for the purposes of labelling, marking and packaging are Article 11(5) of, and Annex IV to, the Directive. Together, these provisions ensure that toys are accompanied by appropriate clearly legible warnings in order to reduce inherent risks in their use, as described in the essential requirements. In particular:

  • toys which might be dangerous for children under 36 months of age must bear a warning as such;
  • slides and similar toys must be accompanied by instructions drawing attention to the need to carry out regular checks and maintenance of the main parts;
  • functional toys or their packaging must bear a marking advising use under the direct supervision of an adult;
  • toys containing inherently dangerous substances must bear a corresponding warning;
  • skates and skateboards must bear a warning regarding protective equipment; and
  • toys intended for use in the water must contain a warning.

Directive 88/378/EEC will be replaced on 20 July 2011 by new Directive 2009/48/EC, which was published on 30 June 2009. The new Directive amends the list of toys that need to be accompanied by appropriate warning of information. In particular:

  • instructions about the need to carry out regular checks and maintenance must accompany all activity toys;
  • the distinction between toys containing different hazardous substances will be deleted, as specific obligations will apply to all chemical toys;
  • toys contained in food or co-mingled with food should be accompanied by appropriate warnings;
  • imitations of protective masks and helmets must contain information that they do not provide protection;
  • specific instructions have to be attached to toys intended to be strung across a cradle, cot or perambulator by means of strings, cords, elastics or straps;
  • packaging for fragrances need to warn about the possibility of causing allergies.

Moreover the new Directive provides for a clearer distinction between warnings and information that have to accompany toys.

5.2.5 Electrical Equipment Designed for Use within Certain Voltage Limits (Directive 2006/95/EC)

Directive 2006/95/EC contains specific provisions on the labelling, marking and packaging of electrical equipment designed for use within certain voltage limits (LVD). Thus, these sector specific provisions take precedence over Article 5(1) of the GPSD.

The LVD obliges Member States to take all appropriate measures to ensure that electrical equipment is placed on the market only if it does not endanger safety when properly installed and maintained and used in applications for which it was made. Annex 1 to the Directive sets out the principal elements of these safety objectives, which include:

  • the essential characteristics of the electrical equipment must be marked on the product or on an accompanying notice;
  • the manufacturer or brand name or trade mark should be clearly printed on the product or on the packaging; and
  • the product and its parts should be made in such a way as to ensure that it can be safely and properly assembled and connected.

5.2.6 Cosmetic Products (Directive 76/768/EEC)

Directive 76/768/EEC, which was published on 27 September 1976 and as most recently amended by Directive 2005/42/EC, contains specific provisions on the labelling, marking and packaging of cosmetic products. Thus, these sector specific provisions take precedence over Article 5(1) of the GPSD.

Article 2 of the Directive provides that a cosmetics product which is placed on the EU market must not cause damage to human health when applied under normal or reasonably foreseeable conditions of use, taking account, in particular, of the product’s presentation, its labelling, and any instructions for its use and disposal.

Under Article 6(1) of the Directive, Member States are obliged to ensure that cosmetics may only be marketed if the container and packaging bear certain specified information in indelible, easily legible and visible lettering. This information includes, for example:

  • contact details of the manufacturer;
  • the function of the product, unless that is clear;
  • a list of ingredients;
  • the best before date; and
  • particular precautions to be observed in use, as set out in Annexes III, IV, VI and VII to the Directive.

On 11 July 2013 the current Directive will be replaced by new Regulation 1223/2009 which was published on 22 December 2009. The new Regulation broadly repeats the list of requirements concerning labelling of cosmetics that can be found in current Directive 76/768/EEC. However, unlike the Directive, it will impose obligations directly on all traders selling cosmetic products in the EU, without the necessity to transpose these obligations first of all into the EU-27’s national laws.

 


[56] European Commission’s Guide to the implementation of directives based on the New Approach and the Global Approach

[57] An Origin marking law for consumer goods exist in Italy; please see section on Italy below.

Content provided by Hong Kong Trade Development Council
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