The Ombudsman has upheld the public’s right to know about the use of nanoparticles in cosmetic products.

The decision is significant because the Ombudsman roundly dismisses arguments frequently used by manufacturers to avoid transparency about nanoingredient use.

Cosmetic products containing certain nanomaterials must by law be notified to the regulator and, in the interests of transparency, the Council has routinely requested any such notifications under the Official Information Act. In 2010, ERMA declined to release a notification and the Council lodged a complaint with the Ombudsman.

The Ombudsman rejected the manufacturer’s argument that the information should not be made available to the public because the company would lose market share if its use of nanomaterials were known. Consumers have a right to know, he found, even if this means that companies using nanomaterials might lose customers:

if in the light of the information being released, consumers choose to avoid a product on the basis that it contains nanomaterials […], then I fail to see why an impact on sales that is due to a more informed consumer choice can be classed as unreasonable.

The company, the Ombudsman said, was free to explain to consumers why it was using nanomaterials, and to provide information supporting safety claims:

In choosing to put nanomaterial into its product, a manufacturer may be presumed to take the view that the material is a necessary ingredient in that product. If that is the case, I do not consider that it is unreasonable for it to explain, if necessary, the reasons why this is so for the benefit of consumers.

and:

the supplier of the product can take steps to prepare for release of such information, including provision of information as to why the nanomaterial does not cause harm, given that it is asserts this is so.

Further, the Ombudsman recognised that enabling consumers to chose whether to use nanocosmetics is an important means of managing the risks that nanomaterials pose:

While the role of the EPA is as a specialised and expert evaluator of information, this does not prevent the public from undertaking its own evaluation of information and making its own assessment regarding risk and safety. The two are not mutually exclusive.

During the investigation, the EPA has also changed its policy regarding public access to nanocosmetic notifications and will now make notifications routinely available on its website. Labelling of nanocosmetic ingredients will also be mandatory.

However, as the labelling requirement does not come into force until 2015, notifications to the EPA are the only regulatory mechanism for informing the public about the use of nano-sized cosmetic ingredients.

So far, however, response to the roll call appears to have been feeble and people wanting to know which products contain nanomaterials should not rely on the EPA listing as a comprehensive guide. The products listed are likely to be a tiny fraction of cosmetics available on New Zealand shelves that contain nanomaterials because:

  • There is poor enforcement of the requirement to notify. A product that the Sustainability Council identified two years ago as likely requiring notification has still not been notified, although it remains on retail shelves and we understand that the importer had indicated to the EPA it would do so almost a year ago.
  • The most widely used nanoscale ingredients – nanoscale titanium dioxide and zinc oxide (commonly used in sunscreens) – do not have to be notified.
  • The definition of nanomaterial is narrow, and means that a number of products containing particles with nanoscale properties are not covered by the rule (as they are outside the specified size range).

The EPA and Ministry of Health should now focus on ensuring that all cosmetics products with nanoscale ingredients are notified, as required. That is only fair to those companies that have complied with the law.

The Ombudsman’s decision, released in December, marks the end of a lengthy investigation into a complaint lodged by the Sustainability Council in 2010 after ERMA withheld a notification by a company advising that two of its cosmetic products containing nano-sized ingredients.

The full decision of the Ombudsman is available here: Ombudsman Decision on Nanocosmetics Dec 2012